Umbra V Parts v. APS - Complaint

Case 1:13-cv-00421 Document 1 Filed 04/26/13 Page 1 of 18
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK _______________________________________ UMBRA, LLC 1705 BROADWAY STREET BUFFALO, NEW YORK 14212 Plaintiff, v. Civil Action No. _____________________ APPLIANCE PARTS STOP (a/k/a APPLIANCE PARTS MASTERS) (a/k/a MASTERS APPLIANCE PARTS) (a/k/a UNIVERSAL APPLIANCE PARTS) (d/b/a PRICELESSSUPPLY on Amazon.com) 16141 NORDHOFF STREET NORTH HILLS, CALIFORNIA 91343 Defendant. _______________________________________
COMPLAINT
JURY TRIAL DEMANDED
Plaintiff Umbra, LLC (UMBRA), for its Complaint against Defendant Appliance Parts Stop (a/k/a Appliance Parts Masters and Masters Appliance Parts) (d/b/a PriceleSSSupply on Amazon.com) (collectively APS), alleges: NATURE OF THIS ACTION 1. UMBRA seeks injunctive relief and damages against APS for patent infringement
arising under the Patent Laws of the United States, 35 U.S.C. 101 et seq., including 35 U.S.C. 271, 281, 283, 284 and 289. 2. UMBRA seeks injunctive relief and damages against APS for trademark
infringement arising under the Trademark Laws of the United States, 15 U.S.C. 1051 et seq., including 15 U.S.C. 1114, 1116, 1117, 1118, 1124 and 1125.
THE PARTIES 3. UMBRA is a New York limited liability company having its principal place of
business at the address set forth in the caption above. 4. UMBRA is a worldwide leader in the design and manufacture of original, casual,
contemporary, affordable product designs for every room in the home. Founded in 1979, the companys products are available on-line and at over 25,000 retailers in more than 75 countries. 5. Upon information and belief, APS is a California corporation having its principal
place of business at the address set forth in the caption above. 6. Upon information and belief, APS has manufactured and/or imported for sale in
the United States a hanging dress shaped storage device of the kind described in this Complaint. JURISDICTION AND VENUE 7. The Court has subject matter jurisdiction pursuant to Title 15, United States Code
1121(a) and Title 28, United States Code 1331 and 1338(a). 8. The Court has personal jurisdiction over APS because of APSs contacts with this
forum including, at least, regularly and intentionally doing, transacting and soliciting business; contracting to supply goods; advertising and marketing infringing goods; deriving substantial revenues from the sale of goods; knowing or expecting its actions to have consequences in this jurisdiction; and deriving substantial revenue from interstate and/or international commerce through online sales to customers and otherwise. 9. Venue is proper in this District under 28 U.S.C. 1391(b), 1391(c) and 1400(b).
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UMBRA AND ITS INTELLECTUAL PROPERTY 10. Over a period of 30 years, UMBRA has developed and maintained, at considerable
expense, in the United States and worldwide, valuable patents and trade dress, valuable trade names, a reputation for excellence, and valued relationships with retailers and customers. 11. To develop and maintain these assets and associated good will, and to protect its
innovative designs, UMBRA has invested substantial amounts of money, time and other resources. 12. In particular, on or about October 20, 2011, UMBRA filed a design patent
application in the United States Patent and Trademark Office claiming the ornamental design for a dress-shaped organizer. The patent issued as United States Design Patent No. D657,172 (the 172 Patent) on April 10, 2012. 13. 14. A true and correct copy of the 172 Patent is annexed as Exhibit 1. UMBRA owns the 172 Patent and, as such, has the right to sue and recover for
past, present and future infringement of the 172 Patent and to obtain the relief claimed in this Complaint. 15. Since at least as early as March 29, 2011, UMBRA has used the trademark
LITTLE BLACK DRESS in association with non-metal fabric hanging organizers. 16. An application to register the trademark LITTLE BLACK DRESS was filed under
15 U.S.C. 1051(a) on March 29, 2013 and is currently pending before the United States Patent and Trademark Office as United States Trademark Application Serial No. 85/890,762 (the 762 Application). 17. as Exhibit 2. A true and correct copy of the 762 Application for registration as filed is annexed
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18.
UMBRA owns the trademark LITTLE BLACK DRESS and the related 762
Application, and continues to use the trademark LITTLE BLACK DRESS in association with non-metal fabric hanging organizers. 19. In the course of business, UMBRA has prominently displayed the trademark
LITTLE BLACK DRESS on various types of packaging materials used with its non-metal fabric hanging organizers throughout the United States. UMBRA has also prominently displayed the trademark LITTLE BLACK DRESS on various types of advertising and promotional materials throughout the United States. 20. UMBRA has invested substantial sums in marketing and advertising its products
sold under the LITTLE BLACK DRESS trademark. 21. In view of the sales of its goods and the prominent display and investment in
marketing and advertising, UMBRA has built significant goodwill in the trademark LITTLE BLACK DRESS 22. In view of the sales of its goods and the prominent display and investment in
marketing and advertising, UMBRA trademark LITTLE BLACK DRESS has acquired distinctiveness in the marketplace. FACTS COMMON TO ALL CLAIMS 23. UMBRA has advertised, offered for sale and sold throughout the United States and
elsewhere a dress-shaped organizer commonly known as and marketed as LITTLE BLACK DRESS hanging jewelry organizer and covered by the 172 Patent. 24. Upon information and belief, without UMBRAs authorization, APS makes,
advertises, offers for sale, distributes and sells a knock-off copy of UMBRAs LITTLE BLACK DRESS dress-shaped organizer (the Infringing Product) throughout the United States.
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25.
The Infringing Product is marketed and sold under the brand AS SEEN ON TV IN
SOME COUNTRIES. 26. The Infringing Product is prominently advertised as having a distinctive dress
shape and including a plurality of transparent pockets and hook & loop tabs. In particular, the advertising copy includes the following, smart and stylish little black dress jewelry organizer, while the packaging prominently displays Little Black Dress Hanging Jewelry Organizer. 27. True and correct images of the Infringing Products packaging are included below.
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28.
On or about January 9, 2013, UMBRA wrote to APS through the Amazon.com
contact vendor interface (Umbra January 2013 Letter), advising that UMBRA owned the 172 Patent, and requesting that APS cease and desist using the ornamental design embodied in the Infringing Product by APS sale of the Infringing Product on Amazon.com. 29. 30. 4. 31. On or about February 4, 2013, UMBRA wrote to APS through the Amazon.com A true and correct copy of the Umbra January 2013 Letter is annexed as Exhibit 3. A true and correct copy of the Amazon.com product listing is annexed as Exhibit
contact vendor interface (Umbra February 2013 Letter), again advising that UMBRA owned the 172 Patent, further informing APS that UMBRA enjoys rights to the trademark LITTLE BLACK DRESS used in association with hanging organizers, and again requesting that APS cease and desist using UMBRAs trademark and the ornamental design embodied in the Infringing Product by APS sale of the Infringing Product on Amazon.com. 32. 5. 33. On or about March 20, 2013, UMBRA wrote to APS through the Amazon.com A true and correct copy of the Umbra February 2013 Letter is annexed as Exhibit
contact vendor interface (Umbra March 2013 Letter I), again advising that UMBRA owned the 172 Patent, again informing APS that UMBRA enjoys rights to the trademark LITTLE BLACK DRESS used in association with hanging organizers, and again requesting that APS cease and desist using UMBRAs trademark and the ornamental design embodied in the Infringing Product by APS sale of the Infringing Product on Amazon.com. 34. A true and correct copy of the Umbra March 2013 Letter I is annexed as Exhibit 6.
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35. 7a and 7b. 36.
True and correct copies of the Amazon.com product listings are annexed as Exhibit
On or about March 26, 2013, UMBRA wrote to APS via United States Postal
Service Express Mail Delivery (Umbra March 2013 Letter II), again advising that UMBRA owned the 172 Patent, again informing APS that UMBRA enjoys rights to the trademark LITTLE BLACK DRESS used in association with hanging organizers, and again requesting that APS cease and desist using UMBRAs trademark and the ornamental design embodied in the Infringing Product by APS sale of the Infringing Product on Amazon.com. 37. 8. 38. As of the filing of this complaint, APS has made no attempt to contact UMBRA A true and correct copy of the Umbra March 2013 Letter II is annexed as Exhibit
directly or through counsel. 39. Upon information and belief, APS knowingly sold and continues to sell the
Infringing Product as a simulation of UMBRAs ornamental design embodied in the 172 Patent and has not discontinued use of UMBRAs trademark LITTLE BLACK DRESS in association with non-metal fabric hanging organizers. FIRST CAUSE OF ACTION PATENT INFRINGEMENT UNDER 35 U.S.C. 271 40. 41. UMBRA re-alleges Paragraphs 1-39 as if fully set forth herein. Upon information and belief, APS has infringed and continues to infringe the 172
Patent within the meaning of 35 U.S.C. 271(a) by making, using, offering to sell, selling, promoting and importing the Infringing Product, in this District and elsewhere in the United States without UMBRAs authorization.
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42.
Upon information and belief, APS has also contributed to the infringement of the
172 Patent, and/or actively induced others to infringe the 172 Patent, in this District and elsewhere in the United States. 43. APS is engaged in activity directed toward the infringement, and/or inducing the
infringement and/or contributing to the infringement of the 172 Patent because the Infringing Product is substantially the same in the eye of an ordinary observer, giving such attention as a purchaser usually gives, as the visual appearance as a whole of the dress-shaped organizer design in the 172 Patent, and the Infringing Product copies particular design features shown in the 172 Patent that depart conspicuously from the prior art, and therefore the Infringing Product is naturally more likely to be regarded as deceptively similar to the claimed design and thus infringing. 44. The portions of the design shown in the 172 Patent which depart conspicuously
from the prior art include but are not limited to: a hanging organizer having a distinctive dress shape and comprising a plurality of transparent pockets and straps. 45. APS has copied the portions of the design shown in the 172 Patent which depart
conspicuously from the prior art thereby making the Infringing Product deceptively similar to the design claimed in the 172 Patent. 46. The chart below demonstrates APSs infringement by comparing the Infringing
Product to the figures from the 172 Patent.
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The 172 Patent
The Infringing Product
Figure 1
Figure 2
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Figure 3
Figure 4
Figure 5
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Figure 6
47.
The overall ornamental design depicted in the 172 Patent is substantially different
than the designs found in the prior art, and therefore any small differences between the Infringing Product and the design depicted in the 172 Patent are considered unimportant to the eye of the ordinary observer. 48. 9, 2013. 49. Upon information and belief, APSs infringement of the 172 Patent has been APS has had actual knowledge of the 172 Patent since at least as early as January
willful and deliberate entitling UMBRA to increased damages under 35 U.S.C. 284, to attorneys fees and costs incurred in prosecuting this action under 35 U.S.C. 285 and to APSs total profits from the sale of the Infringing Product under 35 U.S.C. 289. 50. UMBRA is entitled to recover from APS the damages sustained by UMBRA
resulting from APSs wrongful acts in an amount subject to proof at trial. 51. APSs infringement of UMBRAs exclusive rights under the 172 Patent will
continue to damage UMBRAs business, causing irreparable harm for which there is no adequate remedy at law unless it is enjoined by this Court.
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SECOND CAUSE OF ACTION USE OF FALSE DESIGNATIONS OF ORIGIN AND FALSE REPRESENTATIONS IN COMMERCE 52. 53. 54. UMBRA re-alleges Paragraphs 1-51 as if fully set forth herein. This Count arises under 15 U.S.C. 1125(a). APS use of the mark LITTLE BLACK DRESS in connection with the sale of the
Infringing Product is likely to cause confusion with UMBRAs LITTLE BLACK DRESS trademark or cause mistake or to deceive consumers. 55. APS use of the mark LITTLE BLACK DRESS in connection with the sale of the
Infringing Product is likely to cause confusion with UMBRAs LITTLE BLACK DRESS trademark or to cause mistake or to deceive consumers as to the origin, sponsorship, or approval of APS goods. 56. APS acts as aforesaid constitute infringement of UMBRAs rights under federal
unfair competition law and constitute the use of false designations of origin and false representations in commerce in violation of the Federal Trademark Act, 15 U.S.C. 1125(a). 57. 58. APS violations are willful. APS actions have caused UMBRA irreparable harm for which there is no
adequate remedy at law. 59. As a direct and proximate result of APS false designation of origin and false
representations, UMBRA has and continues to suffer damages in an amount that is not presently ascertainable but will be established at trial. THIRD CAUSE OF ACTION COMMON LAW TRADEMARK/UNFAIR COMPETITION 60. UMBRA re-alleges Paragraphs 1-59 as if fully set forth herein.
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61.
As a result of UMBRAs use, sales, advertising and promoting of its trademark, its
trademark is distinctive to UMBRA and its products. 62. Upon information and belief, APS is intentionally attempting to confuse
consumers by using the mark LITTLE BLACK DRESS which is identical and thereby confusingly similar to UMBRAs LITTLE BLACK DRESS trademark. 63. APS use of the mark LITTLE BLACK DRESS is likely to cause confusion,
mistake or deception as to the affiliation, connection or association of APS with UMBRA or as to the organization, sponsorship, or approval of the infringing products by UMBRA. 64. unauthorized. 65. 66. 67. 68. APS acts as aforesaid constitute common law trademark infringement. APS acts as aforesaid constitute unfair competition. APS acts were and continue to be willful and in bad faith. These acts by APS have damaged UMBRA and will continue to cause UMBRA to APS use of the LITTLE BLACK DRESS trademark has been and continues to be
suffer irreparable harm unless injunctive relief is granted. 69. UMBRA is entitled to an award of damages, recovery of APS' profits, and
UMBRAs attorneys fees and costs. FOURTH CAUSE OF ACTION FEDERAL TRADEMARK DILUTION 70. 71. 72. UMBRA re-alleges Paragraphs 1-69 as if fully set forth herein. This count originates under 15 U.S.C. 1125(c). Upon information and belief, after UMBRAs adoption of the trademark LITTLE
BLACK DRESS, and after the trademark had become widely-known and famous for use in
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association with non-metal fabric hanging organizers, APS began using the mark LITTLE BLACK DRESS to advertise, market and promote the Infringing Product. 73. Upon information and belief, APS is intentionally attempting to confuse
consumers by using the mark LITTLE BLACK DRESS which is identical and thereby confusingly similar to UMBRAs LITTLE BLACK DRESS trademark. 74. True and correct copies of the Infringing Products packaging are included in
Paragraph 27 above. 75. APS use of the mark LITTLE BLACK DRESS blurs the distinctiveness of
UMBRAs trademark and/or tarnishes or disparages UMBRAs trademark. 76. 77. Upon information and belief, APS has diluted UMBRAs trademark. UMBRA has suffered damage and will suffer irreparable harm if injunctive relief
is not granted. 78. Upon information and belief, APS willfully intended to trade upon UMBRAs
reputation and/or to cause dilution of UMBRAs trademark, entitling UMBRA to recovery of the APS profits, damages sustained by UMBRA, the costs of the action, and exemplary damages under 15 U.S.C. 1117(a). This is an exceptional case, and UMBRA should be awarded attorneys fees incurred in connection with this action. REQUEST FOR RELIEF WHEREFORE, UMBRA respectfully requests that this Court enter a judgment and appropriate orders in favor of UMBRA and against APS, its officers, agents, employees, and attorneys, and on all persons, partnerships, or corporations in active concert or participation with APS, or any other person, partnership, or corporation acting on behalf of APS, for the following relief:
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A. B.
A declaration that the 172 Patent is not invalid; A judgment that APS has infringed, continues to infringe, contributed to
infringement of and/or actively induced others to infringe the 172 Patent and the trademark LITTLE BLACK DRESS; C. A judgment that APS acts indicate willful infringement and a refusal to change
its course of action despite its knowledge of the 172 Patent and the trademark LITTLE BLACK DRESS; D. A permanent injunction pursuant to 35 U.S.C. 283, enjoining and restraining
further acts of (1) infringement, (2) contributory infringement, and (3) active inducement to infringe with respect to the claim of the 172 Patent; E. A preliminary and permanent injunction preventing: any use in any way of the
trademark LITTLE BLACK DRESS, or any mark or design element confusingly similar thereto, in association with non-metal fabric hanging organizers; F. A judgment requiring APS to account for and pay over to UMBRA all gains,
profits, and advances derived by them from the activities complained of; G. A judgment requiring APS to pay to UMBRA an amount equal to all actual
damages suffered by UMBRA from the activities complained of; H. For infringement of the 172 Patent, a judgment requiring APS to pay to UMBRA
an amount equal to its total profits pursuant to 35 U.S.C. 289; I. An award of costs of this action, including discovery costs, and reasonable
attorney fees and interest on the final judgment according to 28 U.S.C. 1961(a) and 35 U.S.C. 285;
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J.
For willful and wanton conduct, a judgment requiring APS to pay to UMBRA an
amount such that total damages awarded are equal to three (3) times the award of actual damages and profits otherwise awarded for the activities complained of pursuant to 35 U.S.C. 284 and 15 U.S.C. 1117; K. For bad faith knowing and willful intent to create customer confusion, an order
requiring APS to pay to UMBRA an amount equal to APS total profits, damages sustained by UMBRA, the cost of the action, exemplary damages and attorneys fees pursuant to 15 U.S.C. 1117(a); L. For willful intent to trade upon UMBRAs reputation and/or to cause dilution of
UMBRAs trademark, an order requiring APS to pay to UMBRA an amount equal to APS total profits, damages sustained by UMBRA, the cost of the action, exemplary damages and attorneys fees pursuant to 15 U.S.C. 1117(a); and M. circumstances. Such other and further relief this Court deems just and proper under the
Dated:
Buffalo, New York April 26, 2013
By:
/s/ Randolph C. Oppenheimer DAMON MOREY LLP Randolph C. Oppenheimer, Esq. Lead Counsel for Plaintiff Avant Building, Suite 1200 200 Delaware Avenue Buffalo, New York 14202-2150 Phone: (716) 856-5500 Fax: (716) 856-5510 E-Mail: roppenheimer@damonmorey.com
and
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By:
/Robert C. Atkinson SIMPSON & SIMPSON, PLLC Robert C. Atkinson, Esq. Co-Counsel for Plaintiff 5555 Main Street Williamsville, New York 14221 Phone: (716) 626-1564 Fax: (716) 626-0366 E-Mail: ratkinson@idealawyers.com
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CERTIFICATE OF SERVICE
I hereby certify that on April 26, 2013, I filed the foregoing Complaint with Exhibits 1-8, with the Clerk of the United States District Court for the Western District of New York using the CM/ECF system and that no other counsel have appeared in this action.
/s/ Randolph C. Oppenheimer Randolph C. Oppenheimer
Doc #1805805.1
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Case 1:13-cv-00421 Document 1-1 Filed 04/26/13 Page 1 of 68

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Western District of New York __________ District of __________

Umbra, LLC 1705 Broadway Street Buffalo, New York 14212
Plaintiff(s)
v.
Appliance Parts Stop (a/k/a Appliance Parts Masters) (a/k/a Masters Appliance Parts) a/k/a Universal Appliance Parts) d/b/a Pricelesssupply on Amazon.com)
Defendant(s)
) ) ) ) ) ) ) ) ) ) ) )
Civil Action No.
SUMMONS IN A CIVIL ACTION To: (Defendants name and address) Appliance Parts Stop
16141 Nordhoff Street North Hills, California 91343
A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are:
Randolph C. Oppenheimer Damon Morey LLP 200 Delaware Avenue Buffalo, New York 14202 Robert C. Atkinson Simpson & Simpson, PLLC 5555 Main Street Williamsville, New York 14221
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.
CLERK OF COURT
Date:
04/26/2013
Signature of Clerk or Deputy Clerk

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) .
I personally served the summons on the individual at (place) on (date) I left the summons at the individuals residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individuals last known address; or , who is on (date) I returned the summons unexecuted because Other (specify): . My fees are $ for travel and $ for services, for a total of $ . ; or ; or ; or
I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
0.00
I declare under penalty of perjury that this information is true.
Date:
Servers signature
Printed name and title
Servers address
Additional information regarding attempted service, etc:
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JS 44 (Rev. 12/12)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
Umbra, LLC
(b) County of Residence of First Listed Plaintiff
DEFENDANTS
Appliance Parts Stop (aka Appliance Parts Masters) (aks Masters Appliance Parts (aka Universal Appliance Parts) (dba Pricelesssupply on Amazon.com) County of Residence of First Listed Defendant Los Angeles
NOTE: (IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.
Erie
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number)

Damon Morey, LLP 200 Delaware Avenue Buffalo, New York 14202 Simpson & Simpson, PLLC 5555 Main Street Williamsville, New York 14221
Attorneys (If Known)
II. BASIS OF JURISDICTION (Place an X in One Box Only)

1 U.S. Government Plaintiff U.S. Government Defendant 3 Federal Question (U.S. Government Not a Party) Diversity (Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff

(For Diversity Cases Only) PTF Citizen of This State 1 Citizen of Another State Citizen or Subject of a Foreign Country 2 3 DEF 1 2 3 and One Box for Defendant) PTF DEF Incorporated or Principal Place 4 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation 5 6 5 6
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excludes Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education PERSONAL INJURY 365 Personal Injury Product Liability 367 Health Care/ Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: 463 Alien Detainee 510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee Conditions of Confinement FORFEITURE/PENALTY 625 Drug Related Seizure of Property 21 USC 881 690 Other BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark LABOR 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Employee Retirement Income Security Act SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) OTHER STATUTES 375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/ Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes
FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRSThird Party 26 USC 7609
IMMIGRATION 462 Naturalization Application 465 Other Immigration Actions
V. ORIGIN (Place an X in One Box Only)

1 Original Proceeding 2 Removed from State Court 3 Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from Another District
(specify)
6 Multidistrict Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION Brief description of cause:

Patent infringement
Patent Laws of the United States, 35 U.S.C. Section 101 including Sections 271, 281, 283, 284 & 289
CHECK YES only if demanded in complaint: Yes No JURY DEMAND: DOCKET NUMBER
CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE
DATE
DEMAND $
SIGNATURE OF ATTORNEY OF RECORD
04/26/2013
FOR OFFICE USE ONLY RECEIPT # AMOUNT
s/Randolph C. Oppenheimer
APPLYING IFP JUDGE MAG. JUDGE
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JS 44 Reverse (Rev. 12/12)

Authority For Civil Cover Sheet
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. Origin. Place an "X" in one of the six boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
(b)
(c)
II.
III.
IV.
V.
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VII.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

Umbra V Parts v. APS - Complaint

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Case 1:13-cv-00421 Document 1 Filed 04/26/13 Page 1 of 18

JURY TRIAL DEMANDED

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On or about January 9, 2013, UMBRA wrote to APS through the Amazon.com

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35. 7a and 7b. 36.

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Product to the figures from the 172 Patent.

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The 172 Patent

The Infringing Product

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Buffalo, New York April 26, 2013

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/s/ Randolph C. Oppenheimer Randolph C. Oppenheimer

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Western District of New York District of