Incipio Techs. v. Aplars - Complaint

Case 8:15-cv-00277 Document 1 Filed 02/17/15 Page 1 of 7 Page ID #:1
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Yasser M. El-Gamal (State Bar No. 189,047)

YElGamal@manatt.com
Charles A. Kertell (State Bar No. 181,214)
CKertell@manatt.com
MANATT, PHELPS & PHILLIPS,
LLP
695 Town Center Drive, 14th Floor
Costa Mesa, CA 92626
Telephone: (714) 371-2500
Facsimile: (714) 338-2771
Ehab M. Samuel (State Bar No. 228,296)
ESamuel@manatt.com
MANATT, PHELPS & PHILLIPS, LLP
11355 W. Olympic Blvd.
Los Angeles, CA 90064
Telephone: (310) 312-4000
Facsimile: (310) 312-4224
Attorneys for Plaintiff
Incipio Technologies, Inc.
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UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN DIVISION
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Incipio Technologies, Inc., a California

Corporation,
Plaintiff,
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vs.
Aplars, LLC, a Minnesota Limited
Liability Company, and Does 1-10,
inclusive,
Defendants.
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Case No. 8:15-cv-00277

COMPLAINT FOR:
(1) COPYRIGHT INFRINGEMENT
PURSUANT TO 17 U.S.C. 101 ET
SEQ; AND
(2) PATENT INFRINGEMENT
PURSUANT TO 35 U.S.C. 271 ET
SEQ.
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Plaintiff Incipio Technologies, Inc. (Incipio), brings this action
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against Defendants Aplars, LLC (Aplars) and Does 1-10 for injunctive relief and
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damages under the copyright and patent laws of the United States as follows.
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//
M ANATT , P HELPS &

P HILLIPS , LLP
ATTORNEYS AT LAW
LOS ANGELES
COMPLAINT FOR COPYRIGHT AND

PATENT INFRINGEMENT
SUMMARY OF ACTION
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1.
Incipio owns the copyright in the sculptural ornamentation
affixed to, and a patent in the design of, the protective case for a cellular telephone.
Defendants have, without Incipios consent, copied that patented design and
copyrighted sculptural ornamentation in protective cases for cellular telephones
they are selling throughout the United States, including in the Central District of
California. Defendants actions violate Incipios copyright and patent rights, and
Incipio seeks an injunction to stop Defendants from engaging in this wrongful
conduct and monetary damages for the harm its actions have caused.
PARTIES
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2.
Plaintiff Incipio is a corporation organized under the laws of the
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state of California, which has its principal place of business at 6001 Oak Canyon,
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Irvine, CA 92618, in the Central District of California. Incipio is an award winning
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designer of mobile device accessories and technologies that are sold in tens of
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thousands of retail locations worldwide. Over the last 15 years, Incipio has grown
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from a small one-man shop in Southern California to an industry leader with
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hundreds of employees that are focused on providing innovative and beautifully
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designed and built products.
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3.
Defendant Aplars is a limited liability company organized under
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the laws of the state of Minnesota and which has its principal place of business at
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2885 County Dr. Suite #175, Little Canada, MN 55117, but which does business
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throughout the United States, including in the Central District of California.
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4.
Defendants Does 1 through 10, inclusive, are sued herein under
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fictitious names because their true names and capacities are unknown at this time.
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Incipio is informed and believes that they do business in the Central District of
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California. This complaint will be amended appropriately when their true names
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and capacities are ascertained.
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M ANATT , P HELPS &
P HILLIPS , LLP
ATTORNEYS AT LAW
LOS ANGELES

PATENT INFRINGEMENT
5.
Upon information and belief, Incipio alleges that each of such
fictitiously named Defendants is responsible in some manner for the occurrences
alleged herein.
6.
Aplars and Does 1-10, inclusive, are hereafter referred to
collectively as Defendants.
7.
Defendants, and each of them, are individuals and businesses
who, upon information and belief, are acting in concert and active participation
with each other in committing the wrongful acts alleged herein.
JURISDICTION AND VENUE

8.
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This is a civil action arising out of the copyright and patent laws
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of the United States. This court has federal jurisdiction over this action pursuant to
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17 U.S.C. 501, 28 U.S.C. 1331-1332 and 28 U.S.C. 1338(a), and 35 U.S.C.
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271 and 281. Venue is proper in this district under 28 U.S.C. 1391 and
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1400.
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GENERAL BACKGROUND
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Incipio designs and sells, inter alia, protective cases for cellular
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telephones. In 2012 Incipio created and designed a protective case for a cellular
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telephone that bears original and distinctive sculptural ornamentation. Incipio
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applied for, and was granted, a copyright registration for its sculptural design
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associated with its protective case. True copies of that Copyright Registration No.
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VA 1-834-876, and images of the copyrighted sculptural design so registered, are
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attached as Exhibit A. The effective date of Copyright Registration No. VA 1-834-
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876 is October 23, 2012.
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10.
In September 2012, Incipio also applied for, and was granted, a
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design patent for its protective case. A true copy of that Design Patent No. US
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D717,778 S is attached as Exhibit B.
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11.
Incipio has provided notice of its patent rights pursuant to 35
U.S.C. 287.
M ANATT , P HELPS &

P HILLIPS , LLP
ATTORNEYS AT LAW
LOS ANGELES

PATENT INFRINGEMENT
DEFENDANTS UNLAWFUL CONDUCT
12.
In about January 2015, Incipio discovered that Defendants have
been and are selling throughout the United States, including in the Central District
of California, protective cases for cellular telephones that copy the patented design
and copyrighted sculptural ornamentation used on Incipios protective cases for
cellular telephones. True copies of exemplars of Defendants cases are attached as
Exhibit C. Defendants cases infringe Incipios intellectual property rights in
Copyright Registration No. VA 1-834-876 and Design Patent No. US D717,778 S.

13.
Incipio has never granted Defendants any rights to copy or use
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Incipios copyrighted sculptural ornamentation or patented design in connection
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with protective cases for cellular telephones, or at all.

14.
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Incipio has demanded that Defendants cease and desist their
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infringing conduct and have repeatedly asked for an accounting of infringing sales.
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Defendants have not complied with Incipios demands, and continue to infringe its
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rights as described above and below.

15.
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Defendants conduct constitutes copyright and patent
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infringement and causes Incipio to suffer irreparable injuries as described above
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and below, including injury to the value of its copyrighted work and patented
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design, for which it has no adequate remedy at law.

CLAIM FOR RELIEF
(Copyright Infringement)
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Incipio realleges and incorporates by reference each and every
allegation set forth in Paragraphs 1 through 15 above.

17.
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By reason of the foregoing, Incipio asserts a claim against
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Defendants for injunctive and monetary relief, including actual damages,
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Defendants profits, and/or statutory damages, together with costs and attorneys
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fees pursuant to 17 U.S.C. 502-505 for Defendants infringement of its copyright.
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//
M ANATT , P HELPS &

P HILLIPS , LLP
ATTORNEYS AT LAW
LOS ANGELES

PATENT INFRINGEMENT
CLAIM FOR RELIEF

(Patent Infringement)
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Incipio realleges and incorporates by reference each and every
allegation set forth in Paragraphs 1 through 15 above.

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Defendants have infringed and are still infringing Incipios
Design Patent No. US D717,778 S by importing, selling, offering for sale, and
possibly also making and using protective cases for cellular telephones that embody
Incipios patented design, and Defendants will continue to do so unless enjoined by
this Court.
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Incipio has given Defendants written notice of the infringement.
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Defendants acts constitute willful and intentional infringement, undertaken with
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reckless disregard for Incipios patent rights.

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As a direct and proximate result of Defendants patent
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infringement, Defendants have derived and received gains, profits, and advantages
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in an amount not presently known to Incipio. Further, Defendants actions have
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caused Incipio to suffer great and irreparable injury, for which it has no adequate
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remedy at law.
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By reason of the foregoing, Incipio is entitled to its actual
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damages for Defendants infringing acts and treble damages, together with interest
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and costs as fixed by the Court pursuant to 35 U.S.C. 284, to Defendants total
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profits from the sale of products that infringe Incipios patent rights pursuant to 25
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U.S.C. 289, and to its reasonable attorneys fees and costs incurred in bringing
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this claim pursuant to 35 U.S.C. 285.
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M ANATT , P HELPS &

P HILLIPS , LLP
ATTORNEYS AT LAW
LOS ANGELES

PATENT INFRINGEMENT
PRAYER
Incipio requests judgment in its favor and against Defendants as
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follows:
A.
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Adjudging Defendants to have willfully infringed Incipios
Copyright Registration No. VA 1-834-876 and Design Patent No. US D717,778 S;

B.
Preliminarily and permanently enjoining Defendants and all
those in active concert or participation with them from infringing or assisting any
other person or entity in infringing Incipios rights in its copyrighted work and
patented design as set forth herein;

C.
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Preliminarily and permanently enjoining Defendants and all
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persons acting in active concert or participation with them from using, duplicating,
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manufacturing, adapting, modifying, changing, distributing, selling, reselling,
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reproducing, colorably imitating or copying, or otherwise using protective cases for
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cellular telephones that embody Incipios copyrighted sculptural ornamentation or
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patented invention, or any work or design substantially similar thereto;

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Awarding Incipio, at its election, either actual damages and
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Defendants profits or statutory damages against Defendants, jointly and severally,
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for said Defendants acts of copyright infringement pursuant to 17 U.S.C. 504
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and 505;
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E.
Ordering Defendants and all persons in active participation with
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them to turn over to Plaintiff for destruction all infringing works in their possession,
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custody or control pursuant to 17 U.S.C. 503;
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F.
Awarding Incipio for Defendants acts of patent infringement all
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of Incipios actual damages, treble damages, together with interest and costs as
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fixed by the Court, Defendants total profits from the sale of products that infringe
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Incipios patent rights, and Incipios attorneysfees and costs incurred in bringing
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this claim pursuant to 35 U.S.C. 284, 285 and 289;
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G.
Awarding Incipio its allowable costs; and
M ANATT , P HELPS &

P HILLIPS , LLP
ATTORNEYS AT LAW
LOS ANGELES

PATENT INFRINGEMENT
H.
Awarding Incipio such other and further relief as the court
deems just and proper.
Dated: February 17, 2015
Respectfully submitted by:

MANATT, PHELPS & PHILLIPS, LLP
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By:
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Yasser M. El-Gamal
Attorneys for Plaintiff
Incipio Technologies, Inc.
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314044011.1
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M ANATT , P HELPS &
P HILLIPS , LLP
ATTORNEYS AT LAW
LOS ANGELES

PATENT INFRINGEMENT
Case 8:15-cv-00277 Document 1-1 Filed 02/17/15 Page 1 of 11 Page ID #:8
EXHIBIT A
EXHIBIT A - PAGE 8
EXHIBIT A - PAGE 9
EXHIBIT A - PAGE 10
EXHIBIT A - PAGE 11
EXHIBIT A - PAGE 12
EXHIBIT A - PAGE 13
EXHIBIT A - PAGE 14
EXHIBIT A - PAGE 15
EXHIBIT A - PAGE 16
EXHIBIT A - PAGE 17
EXHIBIT B
EXHIBIT B - PAGE 18
EXHIBIT B - PAGE 19
EXHIBIT B - PAGE 20
EXHIBIT B - PAGE 21
EXHIBIT B - PAGE 22
EXHIBIT B - PAGE 23
EXHIBIT B - PAGE 24
EXHIBIT B - PAGE 25
EXHIBIT C
EXHIBIT C - PAGE 26

Incipio Techs. v. Aplars - Complaint

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Case 8:15-cv-00277 Document 1 Filed 02/17/15 Page 1 of 7 Page ID #:1

Yasser M. El-Gamal (State Bar No. 189,047)

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

Incipio Technologies, Inc., a California

Case No. 8:15-cv-00277

Plaintiff Incipio Technologies, Inc. (Incipio), brings this action

M ANATT , P HELPS &

COMPLAINT FOR COPYRIGHT AND

Case 8:15-cv-00277 Document 1 Filed 02/17/15 Page 2 of 7 Page ID #:2

Incipio owns the copyright in the sculptural ornamentation

copyrighted sculptural ornamentation in protective cases for cellular telephones

Incipio seeks an injunction to stop Defendants from engaging in this wrongful

Plaintiff Incipio is a corporation organized under the laws of the

Irvine, CA 92618, in the Central District of California. Incipio is an award winning

from a small one-man shop in Southern California to an industry leader with

hundreds of employees that are focused on providing innovative and beautifully

designed and built products.

Defendant Aplars is a limited liability company organized under

throughout the United States, including in the Central District of California.

Defendants Does 1 through 10, inclusive, are sued herein under

and capacities are ascertained.

COMPLAINT FOR COPYRIGHT AND

Case 8:15-cv-00277 Document 1 Filed 02/17/15 Page 3 of 7 Page ID #:3

Upon information and belief, Incipio alleges that each of such

fictitiously named Defendants is responsible in some manner for the occurrences

Aplars and Does 1-10, inclusive, are hereafter referred to

Defendants, and each of them, are individuals and businesses

with each other in committing the wrongful acts alleged herein.

JURISDICTION AND VENUE

17 U.S.C. 501, 28 U.S.C. 1331-1332 and 28 U.S.C. 1338(a), and 35 U.S.C.

telephone that bears original and distinctive sculptural ornamentation. Incipio

VA 1-834-876, and images of the copyrighted sculptural design so registered, are

attached as Exhibit A. The effective date of Copyright Registration No. VA 1-834-

876 is October 23, 2012.

In September 2012, Incipio also applied for, and was granted, a

D717,778 S is attached as Exhibit B.

Incipio has provided notice of its patent rights pursuant to 35

M ANATT , P HELPS &

COMPLAINT FOR COPYRIGHT AND

Case 8:15-cv-00277 Document 1 Filed 02/17/15 Page 4 of 7 Page ID #:4

DEFENDANTS UNLAWFUL CONDUCT

In about January 2015, Incipio discovered that Defendants have

and copyrighted sculptural ornamentation used on Incipios protective cases for

cellular telephones. True copies of exemplars of Defendants cases are attached as

Exhibit C. Defendants cases infringe Incipios intellectual property rights in

Copyright Registration No. VA 1-834-876 and Design Patent No. US D717,778 S.

Incipio has never granted Defendants any rights to copy or use

Incipios copyrighted sculptural ornamentation or patented design in connection

with protective cases for cellular telephones, or at all.

Incipio has demanded that Defendants cease and desist their

rights as described above and below.

Defendants conduct constitutes copyright and patent

infringement and causes Incipio to suffer irreparable injuries as described above

design, for which it has no adequate remedy at law.

Incipio realleges and incorporates by reference each and every

allegation set forth in Paragraphs 1 through 15 above.

By reason of the foregoing, Incipio asserts a claim against

Defendants for injunctive and monetary relief, including actual damages,

fees pursuant to 17 U.S.C. 502-505 for Defendants infringement of its copyright.

M ANATT , P HELPS &

COMPLAINT FOR COPYRIGHT AND

Case 8:15-cv-00277 Document 1 Filed 02/17/15 Page 5 of 7 Page ID #:5

CLAIM FOR RELIEF