Smart Marketing v. Walmart - Complaint

Case 1:18-cv-03020-LMM Document 1 Filed 06/21/18 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SMART MARKETING, INC., d/b/a

KATE ASPEN
Plaintiff, Civil Action No.
v. _____________________
WALMART, INC., WAL-MART.COM

USA, LLC and WAL-MART STORES,
INC.,
Defendants.
COMPLAINT
Plaintiff Smart Marketing, Inc., d/b/a Kate Aspen (“Kate Aspen”) files this
Complaint against Defendants Walmart, Inc., Wal-Mart.com USA, LLC, and Wal-
Mart Stores, Inc. (collectively, “Wal-Mart”), showing the Court as follows:
1. Kate Aspen brings this action seeking injunctive and monetary relief
for Defendants’ infringement of Plaintiff’s copyright in its pineapple and flamingo
bottle openers.
THE PARTIES
2. Kate Aspen is a Georgia domestic profit corporation that markets
distinctively designed lines of baby shower, bridal shower, and wedding favors and
innovative baby gifts through its network of authorized online retailers and via its
direct-to-consumer websites.
3. Defendant Walmart, Inc. is a Delaware corporation headquartered in
Arkansas with its principal place of business located at 702 SW 8th Street,
Bentonville, Arkansas, 72716. Walmart, Inc. is registered to do business in
Georgia and may be served with process by delivering a summons and complaint
to its registered agent, C T Corporation System, 289 South Culver Street,
Lawrenceville, GA 30046-4805.
4. Defendant Wal-Mart.com USA, LLC (“Wal-Mart.com”) is a
California limited liability company with its principal place of business located at
124 West Capitol Avenue, Suite 1900, Little Rock, AR, 72201. Wal-Mart.com is
registered to do business in Georgia and may be served with process by delivering
a summons and complaint to its registered agent, C T Corporation System, 289
South Culver Street, Lawrenceville, GA 30046-4805.
5. Until March 1, 2018, Wal-Mart Stores, Inc. (“Wal-Mart Stores”) was
a Delaware corporation headquartered in Arkansas with its principal place of
business located at 702 SW 8th Street, Bentonville, Arkansas, 72716. By an
amended certificate of authority, Wal-Mart Stores changed its name to Walmart,
Inc. Wal-Mart Stores is now registered to do business in Georgia as Walmart, Inc.
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and may be served with process by delivering a summons and complaint to its
registered agent, C T Corporation System, 289 South Culver Street, Lawrenceville,
GA 30046-4805.
JURISDICTION AND VENUE
6. This Court has personal jurisdiction over the Defendants because they
are registered and transact business in the State of Georgia and have caused
tortious injury by act or omission in Georgia. The Defendants offer their products
and services via the Internet and in well over 100 retail locations in Georgia, and
ship their products nationwide, including into Georgia. Samples of the infringing
products were purchased at a retail location in Duluth, Georgia.
7. Venue is proper under 28 U.S.C. § 1391(b) because the Defendants
are deemed to reside in this judicial district and because a substantial part of the
events or omissions giving rise to the claim occurred in this judicial district.
8. This Court has subject matter jurisdiction under 28 U.S.C. § 1338(a),
which gives the federal district courts original and exclusive jurisdiction over
matters arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.
9. This Court also has supplemental jurisdiction over Kate Aspen’s state
law claims pursuant to 28 U.S.C. § 1367 because they are so related to the claims
3
under the Copyright Act as to form part of the same case or controversy under
Article III of the Constitution.
FACTUAL ALLEGATIONS
10. Kate Aspen is a leading designer, manufacturer, wholesaler and online
retailer of products for weddings, bridal and baby showers, and many other special
life events. Kate Aspen began designing truly unique favors for weddings in 2004
and has been keeping up with customer demands by expanding into other party
favors as well as gifts and décor and finishing touches for life’s celebratory events
ever since.
11. Kate Aspen’s products are sold through Kate Aspen’s network of
authorized distributors and retailers (“Authorized Retailers”) both online and in
brick and mortar stores as well as directly to the consumer via Kate Aspen’s
websites.
12. Kate Aspen’s Authorized Retailers offer Kate Aspen products for sale
and fulfill any orders that are placed for Kate Aspen products exclusively through
Kate Aspen.
13. Kate Aspen only allows Authorized Retailers to sell genuine and
authentic Kate Aspen products in order to protect its brand and intellectual
property, and to ensure that customers receive genuine, quality products.
4
Kate Aspen’s Intellectual Property
14. Kate Aspen is the owner of multiple federally registered copyrights to
protect its unique intellectual property. Specifically, Kate Aspen is the exclusive
owner of copyright registrations associated with its pineapple bottle opener and
flamingo bottle opener.
15. Created in 2015, the pineapple bottle opener (the “Kate Aspen
Pineapple Work”) is an original graphical and sculptural work featuring a bottle
opener with a pineapple shaped handle made in a gold-colored metal. A fair and
accurate photograph of the Kate Aspen Pineapple Work is attached hereto as
Exhibit 1.
16. The Kate Aspen Pineapple Work was first published on January 7,
2016 and was registered under U.S. Registration No. VA00021505379 on April 13,
2018. A true and correct copy of the Library of Congress catalog entry showing the
registration of the Kate Aspen Pineapple Work is attached hereto as Exhibit 2.
17. Created in 2014, the flamingo bottle opener (the “Kate Aspen
Flamingo Work”) is an original graphical and sculptural work featuring a flamingo
shaped handle made in a gold-colored metal. A fair and accurate photograph of the
Kate Aspen Flamingo Work is attached hereto as Exhibit 3.
5
18. The Kate Aspen Flamingo Work was first published on February 19,
2015 and was registered under U.S. Registration No. VA0002099233 on April 13,
2018. A true and correct copy of the certificate of registration for the Kate Aspen
Flamingo Work is attached hereto as Exhibit 4. The Kate Aspen Pineapple Work
and Kate Aspen Flamingo Work are collectively referred to as the “Kate Aspen
Works.”
19. The Kate Aspen Works are wholly original, and Kate Aspen is the
exclusive owner of all right, title, and interest, including all rights under copyright,
in the Kate Aspen Works.
Defendants’ Wrongful Conduct
20. Kate Aspen has not authorized Defendants or its suppliers to
reproduce, publish, provide, distribute, transmit, display, publicly perform, create
derivative works from or otherwise make any use of its copyrighted products,
including the Kate Aspen Works.
21. Defendants have distributed and continue to distribute, both online
and in their retail locations, non-authentic, infringing, and exact copy knock-off
Kate Aspen products.
22. Defendants’ websites at www.walmart.com and www.wal-mart.com
(the “Websites”) display and provide access to materials that infringe Kate Aspen’s
6
copyrights in the Kate Aspen Works. The following is a list of the infringing
materials (“Infringing Works”) and the URLs at which the infringing materials are
accessible on the Websites. True and correct copies of the relevant webpages are
attached as collective Exhibit 5.
a. Rosie: Flamingo Bottle Opener by Blush

(https://www.walmart.com/ip/Rosie-Flamingo-Bottle-Opener-by-
Blush/620094611);
b. Pineapple Shape Bottle Can Opener Beer Opener Cap Lifter

Wedding Opener Favors (Golden)
(https://www.walmart.com/ip/Pineapple-Shape-Bottle-Can-
Opener-Beer-Opener-Cap-Lifter-Wedding-Opener-Favors-
Golden/986286132); and
c. Pineapple Shape Bottle Can Opener Beer Opener Cap Lifter

Wedding Opener Favors (Golden) (see Exhibit I; a print-out of
https://www.walmart.com/ip/Paper-Quartz-Bottle-Opener-Set-
Beer-Opener-Wedding-Favors-Opener-Pineapple-Shape-
Golden/639094359).
23. Defendants also display and sell the Infringing Works in their brick
and mortar retail locations.
24. On or about May 17, 2018, a Kate Aspen employee entered
Defendants’ Duluth, Georgia store and purchased the Infringing Work. Fair and
accurate photographs of the Infringing Works as displayed at that retail location
are attached hereto as composite Exhibit 6. A true and correct copy of the receipt
for the purchase of the Infringing Works is attached hereto as Exhibit 7.
7
25. Upon information and belief, Defendants or their suppliers obtained
physical possession of or otherwise viewed the Kate Aspen Works and willfully
copied them to create the Infringing Works. That Defendants or their suppliers
copied the Kate Aspen Works when they created the Infringing Works is
evidenced by (a) the striking similarities among the products, which cannot
possibly be explained other than as a result of copying, and (b) Defendants’ access
to the Kate Aspen Works through Kate Aspen’s national distribution and online
retail presence.
26. As can be seen from viewing and comparing Exhibits 1, 3, and 6, the
Infringing Works are identical and/or substantially similar to the copyrighted Kate
Aspen Works. Like the Kate Aspen Works, the Infringing Works are gold-metal
bottle openers with either a flamingo-shaped or pineapple-shaped handle attached.
As detailed in the following chart, the Infringing Works are virtually
indistinguishable from the Kate Aspen Works in overall appearance.
8
Feature Kate Aspen Pineapple Work Infringing Pineapple Work

Color Metallic gold Metallic gold
Stem Five leaves with central Five leaves with central

prominent leaf, surrounded by prominent leaf, surrounded
two leaves pointing in separate by two leaves pointing in
directions on either side; each separate directions on either
leaf features indented central side; each leaf features
line indented central line
Pineapple Diamond shaped hatch marks Diamond shaped hatch
body with raised dots in center marks with raised dots in
center
Length 4 inches 4 inches
Bottle Attached to bottom of Attached to bottom of
opener pineapple body pineapple body
placement
9
Feature Kate Aspen Flamingo Work Infringing Flamingo Work
Leg Flamingo legs form figure 4 Flamingo legs form figure 4

placement with left leg bent behind right with left leg bent behind
leg and feet forming bottle right leg and feet forming
opener bottle opener
Length 3 ¾ inches from head to 3 ¾ inches from head to
bottom of foot bottom of foot
Tail Notched indentation in tail at Notched indentation in tail at

rear of opener rear of opener
Wing Raised wing with textured Raised wing with textured
lines to appear as feathers lines to appear as feathers
Beak Deep curve of beak, which is Deep curve of beak, which is
connected to neck of flamingo connected to neck of
flamingo
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Defendants’ Deceptive Acts Have Caused Injury to Kate Aspen
27. Since Defendants copied the Kate Aspen Works to create the
Infringing Works, they have sold the Infringing Works in-store and online
throughout the United States to the general public, including in Georgia and in this
district.
28. Kate Aspen has been damaged by Defendants’ infringement by,
including but not limited to, lost sales, lost profits, and loss of goodwill.
29. Defendants have never accounted to or otherwise paid Kate Aspen for
their use of the Kate Aspen Works.
30. At or around the time of the filing of this complaint, Kate Aspen
wrote to Defendants ordering them to cease and desist the use of the copyrighted
Kate Aspen Works.
31. Defendants’ acts are causing, and unless restrained, will continue to
cause damage and immediate irreparable harm to Kate Aspen for which Kate
Aspen has no adequate remedy at law.
COUNT I
Copyright Infringement
32. Kate Aspen restates and realleges the allegations above as if fully set
forth herein.
11
33. The Kate Aspen Works are original works of visual art containing
copyrightable subject matter for which copyright protection exists under the
Copyright Act, 17 U.S.C. § 101, et seq.
34. Kate Aspen, at all relevant times, has been the sole creator and
exclusive owner of the Kate Aspen Works that are the subject of the registered
copyrights shown in Exhibit 2 and 4.
35. Kate Aspen has been and is the owner and proprietor of all right, title,
and interest in the copyrights in the Kate Aspen Works.
36. Defendants had access to the Kate Aspen Works.
37. Defendants, without Kate Aspen’s authorization, approval,
permission, or license, have copied, distributed, displayed, and/or prepared
derivative works based on the copyrighted Kate Aspen Works, intentionally
infringing Kate Aspen’s exclusive rights under the copyrights in violation of the
federal Copyright Act, 17 U.S.C. § 501.
38. Defendants knew or reasonably should have known that the Kate
Aspen Works were protected by copyright such that the Defendants’ copyright
infringement was willful.
12
39. As a direct result of their infringement, Defendants have made, and
are continuing to make, substantial profits and/or monetary gains to which they are
not entitled in law or equity.
40. As a direct and proximate result of Defendants’ acts of copyright
infringement, Kate Aspen has been harmed and is entitled to damages and
Defendants’ profits pursuant to 17 U.S.C. § 504(b).
41. Kate Aspen is further entitled to an order that Defendants render an
accounting to Kate Aspen for any and all gains, profits, and benefits derived from
Defendants’ acts of infringement and ordering that all such amounts be deemed to
be held in constructive trust for Kate Aspen.
42. Alternatively, Plaintiff is entitled to statutory damages pursuant to 17
U.S.C. § 504(c), for each of the Kate Aspen Works and for such other amount as
may be proper pursuant to 17 U.S.C. § 504(c).
43. Kate Aspen is also entitled to attorneys’ fees and costs pursuant to 17
U.S.C. § 505.
44. As a direct and proximate result of the Defendant's infringing conduct,
Kate Aspen has sustained and will continue to sustain substantial, immediate, and
irreparable injury, for which there is no adequate remedy at law. On information
and belief, unless Defendant's infringing conduct is enjoined by this Court,
13
Defendant will continue to infringe the Kate Aspen Works. Plaintiff therefore is
entitled to preliminary and permanent injunctive relief restraining and enjoining
Defendant's ongoing infringing conduct.
COUNT II
Georgia Uniform Deceptive Trade Practices Act (O.C.G.A. § 10-1-370)
forth herein.
46. Defendants’ actions are likely to cause, and have already caused,
confusion or misunderstanding as to the source, sponsorship, approval or
certification of the Defendants’ knock-off products.
47. Defendants’ actions constitute an unfair or deceptive trade practice
which otherwise is likely to cause confusion or misunderstanding.
48. Kate Aspen has been harmed by Defendants’ actions, entitling it to
injunctive relief.
49. Defendants engaged in these deceptive trade practices willfully,
knowing them to be deceptive, entitling Kate Aspen to attorneys’ fees under
O.C.G.A. § 10-1-373(b)(2).
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COUNT III
Unfair Competition Under Common Law
forth herein.
51. Defendants’ intentional copying of the Kate Aspen Works in
connection with the distribution and sale of competing, knock-off products
constitutes common law unfair competition.
52. Kate Aspen has been harmed by Defendants’ actions in an amount to
be proved at trial.
COUNT IV
O.C.G.A. § 13-6-11
forth herein.
54. Defendants’ conduct, as described above, has caused Kate Aspen
unnecessary trouble and expense and constitutes bad faith and stubborn
litigiousness.
55. Kate Aspen, therefore, is entitled to recover its reasonable attorneys’
fees and other expenses of litigation pursuant to O.C.G.A. § 13-6-11.
JURY DEMAND
Kate Aspen demands a trial by jury for all issues so triable.
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PRAYER FOR RELIEF
WHEREFORE Plaintiff respectfully requests that this Court enter judgment
in Plaintiff’s favor on each and every claim for relief set forth above and award
Plaintiff relief including, but not limited to, the following:
a) Awarding Plaintiff its damages resulting from Defendants’ unlawful

actions;
b) Awarding Plaintiff, at its election, either (i) actual damages and the
profits derived by Defendants as a result of their infringing activities,
or (ii) statutory damages in the maximum amount permitted under
applicable law with respect to each infringed work, pursuant to 17
U.S.C. § 504(c);
c) Ordering preliminary and permanent injunctive relief, including under
O.C.G.A. § 10-1-373;
d) Ordering an accounting of all profits arising from Defendants’
unlawful acts;
e) Directing that Defendants pay Plaintiff the costs of this action and its
reasonable attorneys’ fees herein;
f) Awarding Plaintiff pre-judgment and post-judgment interest on any
monetary award;
g) Granting Plaintiff such other and further relief as the Court may deem
just and proper; and
h) A trial by jury on all issues so triable.
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This 21st day of June, 2018.

MILLER & MARTIN PLLC
By: /s/ Eileen H. Rumfelt

Eileen H. Rumfelt
Georgia Bar No. 040608
Laura Ashby
Christine H. Lee
1180 West Peachtree Street NW

Suite 2100
Atlanta, GA 30309
Phone: (404) 962-6100
Fax: (404) 962-6300
Email: eileen.rumfelt@millermartin.com
laura.ashby@millermartin.com
christine.lee@millermartin.com
Attorneys for Plaintiffs
17
Case 1:18-cv-03020-LMM Document 1-1 Filed 06/21/18 Page 1 of 2
EXHIBIT 1
EXHIBIT 2
Public Catalog
Copyright Catalog (1978 to present)
Search Request: Left Anchored Name = smart marketing, inc.
Search Results: Displaying 17 of 27 entries
Pineapple Bottle Opener.
Type of Work: Visual Material

Registration Number / Date: VA0002105379 / 2018-04-13
Application Title: Pineapple Bottle Opener.
Title: Pineapple Bottle Opener.
Description: Electronic file (eService)
Copyright Claimant: Smart Marketing, Inc. Address: 2700 Breckinridge Blvd, Suite A, Duluth, GA,
30096, United States.
Date of Creation: 2015
Date of Publication: 2016-01-07
Nation of First Publication: United States
Authorship on Application: Smart Marketing Inc., employer for hire; Domicile: United States. Authorship:
sculpture.
Rights and Permissions: Shirley Wang, The Aspen Brands, 2700 Breckinridge Blvd, Suite A, Suite A, Duluth,
GA, 30096, United States, (678) 282-0053, copyrightoffice@theaspenbrands.com
Copyright Note: C.O. correspondence.
Names: Smart Marketing Inc.
Smart Marketing, Inc.
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EXHIBIT 3
EXHIBIT 4
Registration #: VA0002099233
Service Request#: 1-6462734982
The Aspen Brands
Shirley Wang
2700 Breckinridge Blvd,
Suite A
Duluth, GA 30096 United States

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Certificate of Registration
This Certificate issued under the seal of the Copyright
Office in accordance with title 17, United States Code,
attests that registration has been made for the work
identified below. The information on this certificate has Registration Number
been made a part of the Copyright Office records.

VA 2-099-233
Effective Date of Registration:
4��
Acting United States Register of Copyrights and Director
April 13, 2018
Title
Title of Work: Flamingo Bottle Opener
Completion/Publication
Year of Completion: 2014
Date of 1st Publication: February 19, 2015

1
Nation of 1' Publication: United States
Author
• Author: Smart Marketing Inc.
Author Created: 2-D artwork, sculpture
Work made for hire: Yes
Domiciled in: United States
Copyright Claimant
Copyright Claimant: Smart Marketing, Inc.
2700 Breckinridge Blvd, Suite A, Duluth, GA, 30096, United States
Rights and Permissions
Organization Name: The Aspen Brands
Name: Shirley Wang
Email: copyi'ightoffice@theaspenbrands.com
Telephone: (678)282-0053
Address: 2700 Breckinridge Blvd, Suite A
Suite A
Duluth, GA 30096 United States
Certification
Page I of 2
Name: Vivi Wang
Date: April 12, 2018
Applicant's Tracking Number: ll253NA
"'
Copyright Office notes: Basis for Registration: Graphic and sculptural features identified separately from
and capable of existing independently of the utilitarian aspects of a useful article.
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Page 2 of2
EXHIBIT 5
EXHIBIT 6
EXHIBIT 7
JS44 (Rev. 6/2017 NDGA) CIVIL COVER SHEET
The JS44 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 is required for the use of the Clerk of Court for the purpose of initiating the civil docket record. (SEE INSTRUCTIONS ATTACHED)
I. (a) PLAINTIFF(S) DEFEND ANT(S)

SMART MARKETING, INC., d/b/a WALMART, INC., WAL-MART.COM USA, LLC and
KATE ASPEN WAL-MART STORES, INC.
(b) COUNTY OF RESIDENCE OF FIRST LISTED COUNTY OF RESIDENCE OF FIRST LISTED

PLAINTIFF Gwinnett______ DEFENDANT Gwinnett______
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND
INVOLVED
(c) ATTORNEYS (firm name, address, telephone number, and ATTORNEYS (IF KNOWN)
E-MAIL ADDRESS)
Eileen H. Rumfelt
Miller & Martin, PLLC
Regions Plaza, Suite 2100; 1180 W. Peachtree St., NW
Atlanta, GA 30309-3407
(404) 962-6100 / eileen.rumfelt(gmillernnartin.com
11. BASIS OF JURISDICTION III. CITIZENSHIP OF PRINCIPAL PARTIES

(PLACE AN “X” IN ONE BOX ONLY) (PLACE AN “X” IN ONE BOX FOR PLAINTIFF AND ONE BOX FOR DEFENDANT)
(FOR DIVERSITY CASES ONLY)
PLF DEF PLF DEF
□ 1 U.S. GOVERNMENT
PLAINTIFF
0 3 FEDERAL QUESTION
(U.S. GOVERNMENT NOT A PARTY)
□. □ 1 CITIZEN OF THIS STATE INCORPORATED OR PRINCIPAL
PLACE OF BUSINESS IN THIS STATE
□ 2 U.S. GOVERNMENT
DEFENDANT
□ 4 DIVERSITY
(INDICATE CITIZENSHIP OF PARTIES
□ 2 CITIZEN OF ANOTHER STATE □s a INCORPORATED AND PRINCIPAL
PLACE OF BUSINESS IN ANOTHER STATE
IN ITEM III)
□3 □ 3 CITIZEN OR SUBJECT OF A
FOREIGN COUNTRY
FOREIGN NATION
IV. ORIGIN (PLACE AN “X “IN ONE BOX ONLY)
0 1 ORIGINAL
PROCEEDING
□ 2 REMOVED FROM
STATE COURT
□ 3 REMANDED FROM
APPELLATE COURT
□ 4 REINSTATED OR
REOPENED
□s TRANSFERRED FROM
ANOTHER DISTRICT
(Specify Distnct)
□ MULTIDISTRICT
6 LITIGATION-
TRANSFER
□ APPEAL TO DISTRICT JUDGE
7 FROM MAGISTRATE JUDGE
JUDGMENT
□ MULTIDISTRICT
8 LITIGATION -
DIRECT FILE
V. CAUSE OF ACTION (cite the u.s. civil statute under which you are filing and write a brief statement of cause - do not cite
JURISDICTIONAL STATUTES UNLESS DIVERSITY)
Plaintiff is seeking injunctive and monetary relief for Defendants' infringement of Plaintiff's copyright in its pineapple and
flamingo bottle openers in violation of the Copyright Act. 17 U.S.C. Sections 101 et seq.
(IF COMPLEX, CHECK REASON BELOW)

n 1. Unusually large number of parties, n 6. Problems locating or preserving evidence
n 2. Unusually large number of claims or defenses. n 7. Pending parallel investigations or actions by government.
I 13. Factual issues are exceptionally complex CD 8. Multiple use of experts.
dl 4. Greater than normal volume of evidence. n 9. Need for discovery outside United States boundaries.
□ 5. Extended discovery period is needed. Do. Existence of highly technical issues and proof
CONTINUED ON REVERSE
FOR OFFICE USE ONLY
RECEIPT#' /'Amount.^ ':iAPH.YiN<jlFP-'';/?(.-^ TvlAg JODGEilFP) ■
JUDGE MAG JUDGE ■NAtUtebFSlifr. CAUSE OF ACTION t

VI. NATURE OF SUIT (place an “X” in one box only)

CONTRACT - "0“ MONTHS DISCOVERY TRACK CIVIL RIGHTS - ’'4" MONTHS DISCOVERY TRACK SOCIAL SECURITY - "0" MONTHS DISCOVERY
LJ 150 RECOVERY OF OVERPAYMENT & 440 OTHER CIVIL RIGHTS TRACK
ENFORCEMENT OF JUDGMENT 441 VOTING 861 HIA (1395ff)
□ 152 RECOVERY OF DEFAULTED STUDENT 442 EMPLOYMENT 862 BLACK LUNG (923)
LOANS (Excl, Veterans) 443 HOUSING/ ACCOMMODATIONS 863 DI\VC (405(g))
□ 153 RECOVERY OF OVERPAYMENT OF 445 AMERICANS \vilh DISABILITIES - Employment 863 DI\V\V (405(g))
VETERAN'S BENEFITS ___ 446 AMERICANS \vith DISABILITIES - Other 864 SSID TITLE XVI
r~l 448 EDUCATION 865 RSI (405(g))
CONTRACT - "4" MONTHS DISCOVERY TRACK
FEDERAL TAX SUITS - "4" MONTHS DISCOVERY
g
110 INSURANCE
120 MARINE IMMIGRATION - "0" MONTHS DISCOVERY TRACK Wa^-------------------------------------------
130 MILLER ACT □ 462 NATURALIZATION APPLICATION □ 870 TAXES (U S. Plaintiff or Defendant)
140 NEGOTIABLE INSTRUMENT □ 465 OTHER IMMIGRATION ACTIONS Q 871 IRS-THIRD PARTY 26 use 7609
151 MEDICARE ACT
160 STOCKHOLDERS' SUITS PRISONER PETITIONS - ”0” MONTHS DISCOVERY OTHER STATUTES - '■4" MONTHS DISCOVERY
190 OTHER CONTRACT TRACK TRACK
195 CONTRACT PRODUCT UABILITY 463 HABEAS CORPUS- Alien Detainee 375 FALSE CLAIMS ACT
196 FRANCHISE 510 MOTIONS TO VACATE SENTENCE 376QuiTam 31 USC 3729(a)
530 HABEAS CORPUS 400 STATE REAPPORTIONMENT
REAL PROPERTY - "4" MONTHS DISCOVERY 535 HABEAS CORPUS DEATH PENALTY 430 BANKS AND BANKING
TRACK 540 MANDAMUS & OTHER 450 COMMERCE/ICC RATES/ETC.
210 LAND CONDEMNATION 550 CIVIL RIGHTS - Filed Pro se 460 DEPORTATION
220 FORECLOSURE 555 PRISON CONDITION(S) - Filed Pro se 470 RACKETEER INFLUENCED AND CORRUPT
230 RENT LEASE & EJECTMENT 560 CIVIL DETAINEE; CONDITIONS OF ORGANIZATIONS
240 TORTS TO LAND CONFINEMENT 480 CONSUMER CREDIT
245 TORT PRODUCT LIABILITY 490 CABLE/SATELLITE TV
290 ALL OTHER REAL PROPERTY PRISONER PETITIONS - "4" MONTHS DISCOVERY 890 OTHER STATUTORY ACTIONS
I RACK 891 AGRICULTURAL ACTS
TORTS • PERSONAL INJURY - ”4" MONTHS □ 550 CIVIL RIGHTS-Filed by Counsel 893 ENVIRONMENTAL MATTERS
DISCOVERY TRACK □ 555 PRISON CONDmON(S) - Filed by Counsel 895 FREEDOM OF INFORMATION ACT
310 AIRPLANE 899 ADMINISTRATIVE PROCEDURES ACT/
315 AIRPLANE PRODUCT LIABILITY FORFEITUREA^ENALTY - ’■4” MONTHS DISCOVERY REVIEW OR APPEAL OF AGENCY DECISION
320 ASSAULT. LIBEL & SLANDER
330 FEDERAL EMPLOYERS' LIABILITY
TRACK
□ 625 DRUG RELATED SEIZURE OF PROPERTY
□ 950 CONSTITUTIONALITY OF STATE STATUTES
340 MARINE 21 USC 881 OTHER STATUTES - "8" MONTHS DISCOVERY

345 MARINE PRODUCT LIABILITY □ 690 OTHER TRACK
350 MOTOR VEHICLE
355 MOTOR VEHICLE PRODUCT LIABE.ITY
360 OTHER PERSONAL INJURY
LABOR - "4” MONTHS DISCOVERY TRACK
710 FAIR LABOR STANDARDS ACT
~E 410 ANTITRUST
850 SECURITIES / COMMODITIES / EXCHANGE
362 PERSONAL INJURY - MEDICAL 720 LABOR/MGMT, RELATIONS OTHER STATUTES - “0” MONTHS DISCOVERY
MALPRACTICE 740 RAILWAY LABOR ACT TRACK
□ 365 PERSONAL INJURY - PRODUCT LIABILITY 751 FAMILY and MEDICAL LEAVE ACT □" 896 ARBITRATION
□ 367 PERSONAL INJURY - HEALTH CARE/
PHARMACEUTICAL PRODUCT LIABILITY
□ 368 ASBESTOS PERSONAL INJURY PRODUCT
B 790 OTHER LABOR LITIGATION
791 EMPL. RET. INC. SECURITY ACT
(Confirm / Vacate / Order / Modify)
LIABILITY PROPERTY RIGHTS - "4" MONTHS DISCOVERY

TRACK * PLEASE NOTE DISCOVERY
TORTS - PERSONAL PROPERTY - "4" MONTHS
DISCOVERY TRACK----------------------------------------
□ 370 OTHER FRAUD
0 820 COPYRIGHTS
840 TRADEMARK TRACK FOR EACH CASE TYPE.
SEE LOCAL RULE 26.3
□ 371 TRUTH IN LENDING PROPERTY RIGHTS - ''8" MONTHS DISCOVERY
B
380 OTHER PERSONAL PROPERTY DAMAGE
385 PROPERTY DAMAGE PRODUCT LIABILITY
TRACK
B 830 PATENT
835 PATENT-ABBREVIATED NEW DRUG
BANKRUPTCY - ”0” MONTHS DISCOVERY TRACK APPLICATIONS (ANDA) - a/k/a
Q 422 APPEAL 28 USC 158 Hatch-Waxman cases
□ 423 WITHDRAWAL 28 USC 157
VII. REQUESTED IN COMPLAINT:

□ CHECK IF CLASS ACTION UNDER F.R.Civ.P. 23 DEMAND $__________
JURY DEMAND 0 YES D NO (CHECK YES ONLY IF DEMANDED IN COMPLAINT)
VIII. RELATED/REFILED CASE(S) IF ANY

JUDGE_____________________________ DOCKET NO.
CIVIL CASES ARE DEEMED RELATED IF THE PENDING CASE INVOLVES: (check appropriate box)
□ I. PROPERTY INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.
□ 2. SAME ISSUE OF FACT OR ARISES OUT OF THE SAME EVENT OR TRANSACTION INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.
□ 3. VALIDITY OR INFRINGEMENT OF THE SAME PATENT, COPYRIGHT OR TRADEMARK INCLUDED IN AN EARLIER NUMBERED PENDING SUIT.
□ 4. APPEALS ARISING OUT OF THE SAME BANKRUPTCY CASE AND ANY CASE RELATED THERETO WHICH HAVE BEEN DECIDED BY THE SAME
BANKRUPTCY JUDGE.
□ 5. REPETITIVE CASES FILED BY PROSE LITIGANTS.
□ 6. COMPANION OR RELATED CASE TO CASE(S) BEING SIMULTANEOUSLY FILED (INCLUDE ABBREVIATED STYLE OF OTHER CASE(S)):
□ 7. EITHER SAME OR ALL OF THE PARTIES AND ISSUES IN THIS CASE WERE PREVIOUSLY INVOLVED IN CASE NO. , WHICH WAS
DISMISSED. This case □ IS □ IS NOT (check one box) SUBSTANTIALLY THE SAME CASE.
L ai IS
s: F ATTORNEY OF RECORD DATE

Smart Marketing v. Walmart - Complaint

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Smart Marketing v. Walmart - Complaint

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Case 1:18-cv-03020-LMM Document 1 Filed 06/21/18 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

SMART MARKETING, INC., d/b/a

Plaintiff, Civil Action No.

WALMART, INC., WAL-MART.COM

Mart Stores, Inc. (collectively, “Wal-Mart”), showing the Court as follows:

for Defendants’ infringement of Plaintiff’s copyright in its pineapple and flamingo

2. Kate Aspen is a Georgia domestic profit corporation that markets

3. Defendant Walmart, Inc. is a Delaware corporation headquartered in

Bentonville, Arkansas, 72716. Walmart, Inc. is registered to do business in

to its registered agent, C T Corporation System, 289 South Culver Street,

4. Defendant Wal-Mart.com USA, LLC (“Wal-Mart.com”) is a

registered to do business in Georgia and may be served with process by delivering

a summons and complaint to its registered agent, C T Corporation System, 289

South Culver Street, Lawrenceville, GA 30046-4805.

5. Until March 1, 2018, Wal-Mart Stores, Inc. (“Wal-Mart Stores”) was

a Delaware corporation headquartered in Arkansas with its principal place of

business located at 702 SW 8th Street, Bentonville, Arkansas, 72716. By an

amended certificate of authority, Wal-Mart Stores changed its name to Walmart,

Inc. Wal-Mart Stores is now registered to do business in Georgia as Walmart, Inc.

registered agent, C T Corporation System, 289 South Culver Street, Lawrenceville,

JURISDICTION AND VENUE

products were purchased at a retail location in Duluth, Georgia.

7. Venue is proper under 28 U.S.C. § 1391(b) because the Defendants

8. This Court has subject matter jurisdiction under 28 U.S.C. § 1338(a),

matters arising under the Copyright Act, 17 U.S.C. §§ 101 et seq.

Article III of the Constitution.

10. Kate Aspen is a leading designer, manufacturer, wholesaler and online

authorized distributors and retailers (“Authorized Retailers”) both online and in

property, and to ensure that customers receive genuine, quality products.

Kate Aspen’s Intellectual Property

14. Kate Aspen is the owner of multiple federally registered copyrights to

flamingo bottle opener.

Pineapple Work”) is an original graphical and sculptural work featuring a bottle

accurate photograph of the Kate Aspen Pineapple Work is attached hereto as

registration of the Kate Aspen Pineapple Work is attached hereto as Exhibit 2.

Flamingo Work”) is an original graphical and sculptural work featuring a flamingo

Kate Aspen Flamingo Work is attached hereto as Exhibit 3.

in the Kate Aspen Works.

Defendants’ Wrongful Conduct

20. Kate Aspen has not authorized Defendants or its suppliers to

reproduce, publish, provide, distribute, transmit, display, publicly perform, create

including the Kate Aspen Works.

21. Defendants have distributed and continue to distribute, both online

Kate Aspen products.

22. Defendants’ websites at www.walmart.com and www.wal-mart.com

attached as collective Exhibit 5.

a. Rosie: Flamingo Bottle Opener by Blush

b. Pineapple Shape Bottle Can Opener Beer Opener Cap Lifter

c. Pineapple Shape Bottle Can Opener Beer Opener Cap Lifter

and mortar retail locations.

24. On or about May 17, 2018, a Kate Aspen employee entered

accurate photographs of the Infringing Works as displayed at that retail location

for the purchase of the Infringing Works is attached hereto as Exhibit 7.

25. Upon information and belief, Defendants or their suppliers obtained

bottle openers with either a flamingo-shaped or pineapple-shaped handle attached.

As detailed in the following chart, the Infringing Works are virtually

indistinguishable from the Kate Aspen Works in overall appearance.

Feature Kate Aspen Pineapple Work Infringing Pineapple Work

Stem Five leaves with central Five leaves with central

Feature Kate Aspen Flamingo Work Infringing Flamingo Work

Leg Flamingo legs form figure 4 Flamingo legs form figure 4

Tail Notched indentation in tail at Notched indentation in tail at

Defendants’ Deceptive Acts Have Caused Injury to Kate Aspen