Flambeau v. The Michaels Companies - Complaint

Case: 3:19-cv-00573 Document #: 1 Filed: 07/12/19 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN
§
FLAMBEAU, INC., §
§
Plaintiff, §
§ Case No. __________________
v. §
§ TRIAL BY JURY DEMANDED
THE MICHAELS COMPANIES, INC., §
§
and §
§
DARICE, INC. §
§
Defendants. §
§
COMPLAINT
Plaintiff, Flambeau, Inc. (“Flambeau”), by its attorneys, Quarles & Brady LLP, for its
Complaint against Defendants, The Michaels Companies, Inc. (“Michaels”) and Darice, Inc.
(“Darice”), hereby alleges as follows:
THE PARTIES
1. Flambeau is a Wisconsin corporation with its principal place of business at 801
Lynn Avenue, Baraboo, Wisconsin 53913.
2. Upon information and belief, Michaels is a Delaware corporation with its
principle place of business at 8000 Bent Branch Drive, Irving, Texas 75063.
3. Upon information and belief, Darice is an Ohio corporation with its principle
place of business at 13000 Darice Parkway, Strongville, Ohio 44149.
4. Upon information in belief, Darice was acquired by Michaels in 2016 and is
currently a wholly owned subsidiary of Michaels.
QB\58465795.1
JURISDICTION
5. This is an action for trade dress infringement, false designation of origin, and
unfair competition arising under the laws of the United States set forth in Title 15
of the United States Code, patent infringement, arising under the laws of the United States set
forth in Title 35 of the United States Code, and state common law unfair competition and unjust
enrichment. Flambeau is seeking both injunctive relief and damages.
6. This Court has subject matter jurisdiction over this matter under 28 U.S.C.
§§ 1331 and 1338 because this is a civil action for trade dress infringement, false designation of
origin, unfair competition, and patent infringement, arising under Titles 15 and 35 of the United
States Code. In addition, this Court has subject matter jurisdiction over Flambeau’s state
common law claims for unfair competition and unjust enrichment under 28 U.S.C. § 1367(a).
7. This Court has personal jurisdiction over Michaels pursuant to Wis. Stat. § 801.05
because, upon information and belief, Michaels conducts substantial business in the State of
Wisconsin and within the Western District of Wisconsin. Upon information and belief, Michaels
markets, sells, offers to sell, induces the sale of, and/or imports in commerce infringing products
directly, or through intermediaries, in or into Wisconsin and this District, thereby causing injury
and damage to Flambeau in Wisconsin and this District. Michaels’s substantial business in
Wisconsin and this District may result from acts committed outside Wisconsin or this District,
including but not limited to using established distribution channels to market, sell, offer to sell,
induce the sale of, and/or import infringing products in or into Wisconsin and this District. In
conducting its business in Wisconsin and this District, Michaels stands to derive substantial
revenue from its infringing products at the expense of Flambeau unless enjoined by this Court.
Michaels has numerous physical retail locations in Wisconsin and this District. Michaels Stores,
Inc., a Michaels subsidiary, is registered to do business in Wisconsin.
2
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8. This Court has personal jurisdiction over Darice pursuant to Wis. Stat. § 801.05
because, upon information and belief, Darice conducts substantial business in the State of
Wisconsin and within the Western District of Wisconsin. Upon information and belief, Darice
markets, sells, offers to sell, induces the sale of, and/or imports in commerce infringing products
directly, or through intermediaries, in or into Wisconsin and this District, thereby causing injury
and damage to Flambeau in Wisconsin and this District. Darice’s substantial business in
Wisconsin and this District may result from acts committed outside Wisconsin or this District,
including but not limited to using established distribution channels to market, sell, offer to sell,
induce the sale of, and/or import infringing products in or into Wisconsin and this District. In
conducting its business in Wisconsin and this District, Darice stands to derive substantial
revenue from its infringing products at the expense of Flambeau unless enjoined by this Court.
9. Venue in this District is proper under 28 U.S.C. § 1391 because, upon information
and belief, a substantial part of Defendants’ acts of infringement occur in this District and
Defendants cause injury to Flambeau in this District.
10. Defendants’ activities complained of herein have caused, and will continue to
cause particularized and concrete injury in fact to Flambeau; that injury is traceable to
Defendants’ challenged activities; and that injury is likely to be redressed by a favorable decision
from this court.
FACTS GIVING RISE TO THIS ACTION
11. Flambeau restates and incorporates by reference all previous allegations.
Flambeau’s Carrying Cases
12. Flambeau is a premiere designer, manufacturer, and supplier of plastic products,
including plastic carrying cases.
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13. Flambeau has designed a distinctive line of plastic carrying cases, which it
markets and offers for sale under the trademarks “Merchant” (hereinafter the “Merchant Cases”)
and “Tradesman” (hereinafter the “Tradesman Cases”).
14. True and correct copies of photographs depicting the Merchant Cases and the
Tradesman Cases are shown here and attached as Exhibits 1-7:
Views of the Merchant Case Views of the Tradesman Case
4
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15. Flambeau holds intellectual property rights that apply to the Merchant Cases and
the Tradesman Cases, including trade dress and patent rights.
Flambeau’s Trade Dress Rights
16. Flambeau owns trade dress protection over certain nonfunctional, distinctive
aspects of the Merchant Cases and the Tradesman Cases, both individually and in combination.
17. For example, the “Merchant 10” Translucent Clear” carrying case (hereinafter
“Merchant 10”), sold as Item #6772TD, incorporates numerous non-functional, distinctive
elements. (See Flambeau, Products - Carrying Cases - Merchant 10” Translucent Clear,
https://www.flambeaucases.com/merchant-10-quot-25-4-cm-translucent-clear-without-
foam.aspx (last visited July 11, 2019), a printout of which is attached as Exhibit 2).
18. As another example, the “Tradesman 14” Translucent Clear” carrying case
(hereinafter “Tradesman 14”), sold as Item #6780TN, incorporates non-functional, distinctive
elements. (Flambeau, Products – Carrying Cases – Tradesman 14” Translucent Clear,
5
QB\58465795.1
https://www.flambeaucases.com/tradesman-14-quot-35-56-cm-translucent-clear.aspx (last
visited July 11, 2019), a printout of which is attached as Exhibit 6).
19. By non-limiting example, the Merchant 10 and Tradesman 14 carrying cases
incorporate two distinctive ribbed latches. (See, e.g., Exh. 2 (Merchant - open view); Exh. 6
(Tradesman - open view)). Each latch has a rounded outer corner and symmetrical oblong
groves on either side. The design of these latches is ornamental and source-identifying, as the
latches could be any color and shape and have no need for any particular number of grooves or
particular shaped grooves.
20. As a second non-limiting example, the Merchant 10 and Tradesman 14 carrying
cases have two distinctive oblong feet. (See, e.g., Exh. 2 (Merchant - side view); Exh. 6
(Tradesman - side view)). Each foot consists of two raised pieces of plastic. The first piece is a
half circle of plastic with sides that angle down to the seam. The second piece is a tapered half
oval with sides that angle down to the seam. The specific design of these feet is ornamental and
source-identifying, as the feet could be any shape and have no need for angled sides.
21. As a third non-limiting example, the Merchant 10 and Tradesman 14 carrying
cases each have two distinctive rounded hinges. (See, e.g., Exh. 2 (Merchant - front view); Exh.
6 (Merchant - front view)). Each hinge has cylindrical subsections accompanied by a beveled
end section that curves to the center of the case. The design of these hinges is ornamental and
source-identifying, as the hinges could be composed of any number of subsections and have no
need for a beveled end section.
22. As a fourth non-limiting example, the Merchant 10 carrying case has a distinctive
thin ridge that runs along the case’s seam. (See, e.g., Exh. 2 (Merchant - open and front views)).
The ridge is ornamental and source-identifying, as it only serves to enhance the case’s profile.
6
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23. As a final non-limiting example, the Merchant 10 has distinctive raised, rounded
surfaces on both the front and back faces of the case that follow the outline of the case. (Id.
(front and side views)). The raised, rounded surfaces are ornamental and source-identifying as
they serve only to enhance the case’s profile.
24. Flambeau has been using the asserted trade dress, as described herein, in interstate
commerce since at least as early as 2009.
25. Flambeau sells the Merchant Cases and Tradesman Cases in multiple sizes, all of
which incorporate one or more aspects of the trade dress, as described herein.
26. Flambeau sells the Merchant Cases and Tradesman Cases on its website and
through retailers across the United States.
27. The nonfunctional, distinctive aspects of the Merchant Cases and Tradesman
Cases have become associated with the success of Flambeau’s plastic products and are an
indication of the source of high-quality carrying cases to the relevant purchasing public.
Flambeau’s Design Patent Rights
28. Flambeau owns by assignment the entire right, title, and interest in U.S. Design
Patent No. D633,294 S (“the ‘294 Patent”) entitled “Case.” A true and accurate copy of the ‘294
Patent is attached to this Complaint as Exhibit 8.
29. The ‘294 Patent features six figures that describe the claimed ornamental design
for a case, highlighting ornamental features such as the ridge that runs along the case’s seam; the
raised, rounded surface on both faces of the case; the shape of the handle; and the “U” shape
ridge below the handle.
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Defendants’ Magnetic Die Storage Case
30. Upon information and belief, Michaels and Darice, separately and jointly, market,
sell, offer to sell, induce the sale of, and/or import in commerce a Magnetic Die Storage Case,
listed as Item #121810 (“Defendants’ Storage Case”).
31. Upon information and belief, Darice markets, sells, offers to sell, and induces the
sale of Defendants’ Storage Case, in part, through its website, which is accessible to purchasers
in Wisconsin. (Darice, Magnetic Die Storage Case,
https://www.darice.com/store/details/catalog/wholesale-organizers-scrapbooking/121810 (last
visited July 11, 2019), a printout of which is attached as Exhibit 9).
32. Upon information and belief, Darice distributes Defendants’ Storage Case,
directly or through intermediaries, to physical retail locations owned and operated by Michaels,
several of which are in Wisconsin and the District.
33. Upon information and belief, Michaels markets, sells, offers to sell, induces the
sale of, and/or imports Defendants’ Storage Case in commerce, through its retail locations,
several of which are in Wisconsin and the District.
34. True and correct copies of photographs depicting Defendants’ Storage Case are
attached as Exhibit 10.
35. Defendants’ Storage Case incorporates two ribbed latches. (See, e.g., Exh. 10
(front view)). Each latch has a rounded outer corner and symmetrical oblong groves on either
side. (Id.).
36. Defendants’ Storage Case incorporates two oblong feet. (Id. (front and back
views)). Each foot consists of two raised pieces of plastic. (Id.). The first piece is a half circle
of plastic with sides that angle down to the seam. (Id.). The second piece is a tapered half oval
with sides that angle down to the seam. (Id.).
8
QB\58465795.1
37. Defendants’ Storage Case incorporates two rounded hinges. (Id. (back view)).
Each hinge has cylindrical subsections and a beveled end section that curves to the center of the
case. (Id.).
38. Defendants’ Storage Case incorporates a ridge that runs along the case’s seam.
(Id. (front view)).
39. Defendants’ Storage Case incorporates raised, rounded surfaces on both the front
and back faces of the case that follow the outline of the case. (Id. (front and back views)).
40. Defendants’ Storage Case closely resembles Flambeau’s Merchant Cases and
Tradesman Cases:
Flambeau’s Merchant Case Defendants’ Storage Case Flambeau’s Tradesman

Case
41. A claims chart for Flambeau’s trade dress and Defendants’ Storage Case is
attached as Exhibit 11.
42. Defendants’ Storage Case incorporates the ornamental aspects of the ‘294 Patent:
9
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Defendants’ Storage Case Figure 6 of ‘294 Patent
43. A claims chart for the ‘294 Patent and Defendants’ Storage Case is attached as
Exhibit 12.
44. In January 2019, Flambeau sent Darice a letter informing Darice that the
Defendants’ Storage Case infringed the ‘294 Patent and attaching the ‘294 Patent.
45. In March 2019, counsel for Michaels responded on behalf of Darice and stated
that Defendants would conduct an investigation and report back.
46. At the time of this filing, Defendants have not provided any report on their
investigation, and their infringement is still ongoing.
COUNT I
Federal Trade Dress Infringement
48. Defendants have, separately and jointly, infringed, and continue to infringe
Flambeau’s trade dress, as described above, under 15 U.S.C. § 1125 by importing, using,
making, selling, offering for sale, and/or inducing the sale in the United States Defendants’
10
QB\58465795.1
Storage Cases, which incorporate non-functional, distinctive, and source-identifying elements of
Flambeau’s trade dress.
49. Defendants’ infringement of Flambeau’s trade dress is likely to mislead and
confuse the public as to the source, sponsorship, affiliation and/or approval of Defendants’
Storage Cases. Because of the nearly-identical look of Defendants’ Storage Cases to the
Merchant Cases and the Tradesman Cases, the relevant purchasing public is likely to mistakenly
believe that Flambeau is in some way affiliated or associated with Defendants’ Storages Cases.
50. Defendants’ infringement of Flambeau’s trade dress is intentional, willful, and/or
in reckless disregard of Flambeau’s rights.
51. By infringing Flambeau’s trade dress, Defendants have caused Flambeau to suffer
injury and, unless enjoined by this Court, will cause Flambeau to continue to suffer injury,
including monetary damages.
52. If Defendants’ infringement of Flambeau’s trade dress is not enjoined, Flambeau
will suffer irreparable harm that cannot adequately be compensated by a monetary award.
COUNT II
Federal Law False Designation of Origin
54. Defendants have, separately and jointly, falsely designated the origin of
Defendants’ Storage Cases under 15 U.S.C. § 1125 by copying Flambeau’s trade dress, as
described above, into Defendants’ Storage Cases and then importing, using, making, selling,
offering for sale, and/or inducing the sale in the United States of those products.
55. Defendants’ false designation of origin is likely to cause confusion or mistake as
to the origin, nature, characteristics, and qualities of Defendants’ products. The relevant
11
QB\58465795.1
purchasing public is likely to believe that Flambeau is somehow affiliated, connected, or
associated with Defendants’ Storage Cases or that Flambeau has given its approval to
Defendants to use its trade dress, when Flambeau has not.
56. Defendants’ false designation of origin is intentional, willful, and/or in reckless
disregard of Flambeau’s rights.
57. By its false designation of origin, Defendants have caused Flambeau to suffer
injury and, unless enjoined by this Court, will cause Flambeau to continue to suffer injury,
including monetary damages.
58. If Defendants’ false designation of origin is not enjoined, Flambeau will suffer
irreparable harm that cannot adequately be compensated by a monetary award.
COUNT III
Federal Unfair Competition
60. Defendants’ wrongful actions described above constitute acts of unfair
competition under 15 U.S.C. § 1125.
61. Defendants’ unfair competition with Flambeau was, and is, done willfully,
maliciously, and/or in an intentional disregard of Flambeau’s rights.
62. As a direct and proximate result of Defendants’ wrongful actions, Flambeau has
suffered, and continues to suffer, damage and loss.
COUNT IV
Common Law Unfair Competition
12
QB\58465795.1
64. Defendants’ wrongful actions described herein constitute unfair competition
under Wisconsin common law.
65. Defendants’ unfair competition with Flambeau was, and is, done willfully,
maliciously, and/or in an intentional disregard of Flambeau’s rights.
66. As a direct and proximate result of Defendants’ wrongful actions, Flambeau has
suffered, and continues to suffer, damage and loss.
COUNT V
Common Law Unjust Enrichment
68. Defendants received benefits by infringing upon Flambeau’s trade dress and
patented design.
69. Flambeau expended labor, skill, time, and money developing the trade dress and
patented design that Defendants infringed and continue to infringe.
70. Defendants appreciated, knew of, or realized the benefit of Flambeau’s trade dress
and patented design, as described above.
71. Defendants retained the benefit of Flambeau’s trade dress and patented design
under circumstances that would make it inequitable for Defendants to retain the benefit without
payment to Flambeau of its value.
72. Flambeau has been damaged in an amount to be proven at trial.
COUNT VI
Infringement of U.S. Design Patent No. D633,294 S
13
QB\58465795.1
74. Defendants have, separately and jointly, infringed, and continue to infringe,
directly and/or indirectly, the ‘294 Patent under 35 U.S.C. § 271 by importing, using, making,
selling, offering for sale, and/or inducing the sale in the United States products covered by the
‘294 Patent.
75. Defendants’ Storage Cases are almost identical to the design covered by the ‘294
Patent. For example, Defendants’ Storage Cases have a ridge that runs along the case’s seam;
raised, rounded surfaces on both faces of the case; and a “U” shape ridge below the handle.
76. An ordinary observer familiar with the prior art is likely to confuse Defendants’
Cases with Flambeau’s patented design.
77. Defendants’ infringement of the ‘294 Patent is intentional, willful, and/or in
reckless disregard of Flambeau’s rights.
78. By infringing the ‘294 Patent, Defendants have caused Flambeau to suffer injury
and, unless enjoined by this Court, will cause Flambeau to continue to suffer injury, including
monetary damages.
79. If Defendants’ infringement of the ‘294 Patent is not enjoined, Flambeau will
suffer irreparable harm that cannot adequately be compensated by a monetary award.
PRAYER FOR RELIEF
WHEREFORE Flambeau seeks the following relief from this Court:
A. A judgment against Defendants that Defendants have infringed Flambeau’s trade
dress in violation of 15 U.S.C. § 1125;
B. A judgment that Defendants’ trade dress infringement has been willful;
C. An award of damages adequate to compensate Flambeau for Defendants’ trade
dress infringement, but no less than the damages and/or disgorgement of profits permitted by 15
14
QB\58465795.1
U.S.C. § 1117;
D. A judgment against Defendants that Defendants have committed false designation
of origin in violation of 15 U.S.C. § 1125;
E. A judgment that Defendants’ false designation of origin has been willful;
F. An award of damages adequate to compensate Flambeau for Defendants’ false
designation of origin, but no less than the damages and/or disgorgement of profits permitted by
15 U.S.C. § 1117;
G. A judgment against Defendants that Defendants have unfairly competed against
Flambeau in violation of 15 U.S.C. § 1125 and other applicable authority;
H. A judgment that Defendants’ unfair competition has been willful;
I. An award of damages adequate to compensate Flambeau for Defendants’ unfair
competition, but no less than the damages and/or disgorgement of profits permitted by 15 U.S.C.
§ 1117 and other applicable authority;
J. An award of enhanced damages pursuant to 15 U.S.C. § 1117;
K. A judgment against Defendants that Defendants were unjustly enriched;
L. An award of damages adequate to compensate Flambeau for Defendants’ unjust
enrichment;
M. A judgment against Defendants that Defendants have infringed the ‘294 Patent in
violation of 35 U.S.C. § 271;
N. A judgment that Defendants’ patent infringement has been willful;
O. An award of damages adequate to compensate Flambeau for Defendants’ patent
infringement, but no less than the damages permitted by 35 U.S.C. §§ 284 and 289;
P. An award of treble damages pursuant to 35 U.S.C. § 284;
15
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Q. A declaration that this is an exceptional case pursuant to 35 U.S.C. § 285;
R. An award of compensatory and punitive damages, under the authority described
above and any other applicable authority;
S. A preliminary and a permanent injunction pursuant to 15 U.S.C. § 1116, 35
U.S.C. § 283, and/or any other applicable authority prohibiting Defendants from continuing to
violate Flambeau’s rights in anyway and prohibiting Defendants from importing, using, offering
to sell, or selling any plastic carrying case violating Flambeau’s trade dress or design patent;
T. A judgment that Defendants acts of design patent and trade dress infringement
warrant a finding that this is an exceptional case;
U. An award of reasonable attorneys’ fees incurred herein pursuant to 15 U.S.C. §
1117, 35 U.S.C. § 285, and/or any other applicable authority;
V. An award of Flambeau’s costs and expenses;
W. An award of pre- and post-judgment interest; and
X. Such other and further relief as the Court may deem just and proper.
JURY DEMAND
Flambeau demands a trial by jury on all issues properly tried to a jury.
16
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Dated this 12th day of July, 2019. Respectfully submitted,
/s/ Anthony A. Tomaselli

Anthony A. Tomaselli
aat@quarles.com
Anita Marie Boor
anita.boor@quarles.com
QUARLES & BRADY LLP
33 East Main Street, Suite 900
Madison, Wisconsin 53703-3095
Tel.: 608.251.5000
Fax: 608.251.9166
Attorneys for Plaintiff Flambeau, Inc.
17
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Case: 3:19-cv-00573 Document #: 1-1 Filed: 07/12/19 Page 1 of 6
EXHIBIT 1
Merchant 7" Translucent Clear-without Foam
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Products Customization Newsroom Company Contact  
Home > Carrying Cases > Merchant™ >
Merchant 7"
Translucent Clear-
without Foam
Item #: 6767TN
The 6 1/2" x 4 1/5" x 3 1/5" (16.51 x 10.67 x

8.13 cm) Merchant case features a deep
base for greater storage capacity and a
shallow lid that reduces cost in applications
requiring lid foam. The handle is offset to
provide better balance and a comfortable
grip. The Merchant features slide open/shut
lockable latches with a bead-line seal fit (
U.S. Patent #D650,585) between base and
lid.
props not included Availability: In Stock - Usually

ships within 2 days.
Features
Easy View Clear Translucent

Deep 2 Inch Base
Slide Open/Shut Latches
Two Locking Points
Dust Proof
Water Resistant
Crush Resistant
https://www.flambeaucases.com/merchant-7-quot-translucent-clear-without-foam.aspx[7/12/2019 10:16:53 AM]

Search


Merchant 7"
Translucent Clear-
without Foam
Item #: 6767TN
The 6 1/2" x 4 1/5" x 3 1/5" (16.51 x 10.67 x

props not included U.S. Patent #D650,585) between base and
lid.
Availability: In Stock - Usually

Features

Deep 2 Inch Base
Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 7"
Translucent Clear-
without Foam
Item #: 6767TN
The 6 1/2" x 4 1/5" x 3 1/5" (16.51 x 10.67 x

lid.

Features

Deep 2 Inch Base
Two Locking Points
props not included Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 7"
Translucent Clear-
without Foam
Item #: 6767TN
The 6 1/2" x 4 1/5" x 3 1/5" (16.51 x 10.67 x

props not included
lid.

Features

Deep 2 Inch Base
Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Bead-Line Seal Design
Easy Carry Integral Handle
$4.39
Quantity: 1
Add to Cart
Description Shipping Policy Product Details
The 6 1/2" x 4 1/5" x 3 1/5" (16.51 x 10.67 x 8.13 cm) Merchant case features a deep base for greater storage
capacity and a shallow lid that reduces cost in applications requiring lid foam. The handle is offset to provide better
balance and a comfortable grip. The Merchant features slide open/shut lockable latches with a bead-line seal fit (
U.S. Patent #D650,585) between base and lid.
Customize This Product
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EXHIBIT 2
Merchant 10" (25.4 cm) Translucent Clear- without Foam
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Merchant 10" (25.4

cm) Translucent
Clear- without
Foam
Item #: 6772TD
The 9 5/8" x 7 1/8" x 2 3/8" (24.45 x 18.10 x

props not included provide better balance and a comfortable
lockable latches with a bead-line seal fit
between base and lid.

Features

Deep 2-3/8 Inch Base
Two Locking Points
Dust Proof
Water Resistant
Crush Resistant
https://www.flambeaucases.com/merchant-10-quot-25-4-cm-translucent-clear-without-foam.aspx[7/12/2019 10:12:27 AM]

Search

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Merchant 10" (25.4

cm) Translucent
Clear- without
Foam
Item #: 6772TD
The 9 5/8" x 7 1/8" x 2 3/8" (24.45 x 18.10 x

props not included grip. The Merchant features slide open/shut

Features

Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 10" (25.4

cm) Translucent
Clear- without
Foam
Item #: 6772TD
The 9 5/8" x 7 1/8" x 2 3/8" (24.45 x 18.10 x


Features

Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

$5.18
props not included
Quantity: 1
Add to Cart
The 9 5/8" x 7 1/8" x 2 3/8" (24.45 x 18.10 x 6.03 cm) Merchant case features a deep base for greater storage
capacity and a shallow lid that reduces cost in applications requiring lid foam. The handle is offset to provide better
balance and a comfortable grip. The Merchant features slide open/shut lockable latches with a bead-line seal fit
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EXHIBIT 3
Merchant 12" (30.48 cm) Translucent Clear-without Foam
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Merchant 12"
(30.48 cm)
Translucent Clear-
without Foam
Item #: 6777TD
The 11" x 7 1/4" x 3 1/4" (27.94 x 18.41 x

props not included

Features

Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 12"
(30.48 cm)
Translucent Clear-
without Foam
Item #: 6777TD
The 11" x 7 1/4" x 3 1/4" (27.94 x 18.41 x

props not included provide better balance and a comfortable

Features

Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 12"
(30.48 cm)
Translucent Clear-
without Foam
Item #: 6777TD
The 11" x 7 1/4" x 3 1/4" (27.94 x 18.41 x


Features

Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 12"
(30.48 cm)
Translucent Clear-
without Foam
Item #: 6777TD
props not included
The 11" x 7 1/4" x 3 1/4" (27.94 x 18.41 x

Features

Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

$5.42
Quantity: 1
Add to Cart
The 11" x 7 1/4" x 3 1/4" (27.94 x 18.41 x 8.25 cm) Merchant case features a deep base for greater storage capacity
and a shallow lid that reduces cost in applications requiring lid foam. The handle is offset to provide better balance
and a comfortable grip. The Merchant features slide open/shut lockable latches with a bead-line seal fit between
base and lid.
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EXHIBIT 4
Merchant 15" Translucent Clear
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
Merchant 15"
Translucent Clear
Item #: 6782TD
The 15" x 14 1/2" x 2 3/5" (38.1 x 36.8 x 6.6

cm) Merchant case features a deep base for
greater storage capacity and a shallow lid
that reduces cost in applications requiring lid
foam. The handle is offset to provide better
balance and a comfortable grip. The
Merchant features slide open/shut lockable
latches with a bead-line seal fit between
base and lid.

props not included

Features

Deep 3-2/5 Base
Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 15"
Translucent Clear
Item #: 6782TD
The 15" x 14 1/2" x 2 3/5" (38.1 x 36.8 x 6.6

base and lid.
props not included

Features

Deep 3-2/5 Base
Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 15"
Translucent Clear
Item #: 6782TD
The 15" x 14 1/2" x 2 3/5" (38.1 x 36.8 x 6.6

base and lid.

Features

Deep 3-2/5 Base
Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

Search


Merchant 15"
Translucent Clear
Item #: 6782TD
The 15" x 14 1/2" x 2 3/5" (38.1 x 36.8 x 6.6

props not included cm) Merchant case features a deep base for
base and lid.

Features

Deep 3-2/5 Base
Two Locking Points
Dust Proof
Water Resistant
Crush Resistant

$7.74
Quantity: 1
Add to Cart
The 15" x 14 1/2" x 2 3/5" (38.1 x 36.8 x 6.6 cm) Merchant case features a deep base for greater storage capacity
and a shallow lid that reduces cost in applications requiring lid foam. The handle is offset to provide better balance
and a comfortable grip. The Merchant features slide open/shut lockable latches with a bead-line seal fit between
base and lid.
You May Also Like

Style Case Style Case
$22.85 $22.85

EXHIBIT 5
Tradesman 10 1/2" x (26.67 cm) Translucent Clear
Search


Home > Carrying Cases > Tradesman™ >
Tradesman 10 1/2"
x (26.67 cm)
Translucent Clear
Item #: 6775TF
The 9 1/2" x 5 3/4" x 2 3/4" (24.13 x 14.61 x

6.99 cm) Tradesman case can be used to
protect, store and merchandise a wide
variety of products. Available in a range of
color options, the Tradesman is easy to
customize with adhesive or in-mold labels,
logo plates, engraving and custom interior
props not included foam or vacuum trays. Constructed of
polypropylene resin, the case features slide
open/shut lockable latches with an
overlapping lid-to-base closure for a natural
dust and moisture barrier.

Features
Easily View Contents Inside

Two Locking Points
Dust Proof
Water Resistant
https://www.flambeaucases.com/tradesman-10-1/2-quot-x-26-67-cm-translucent-clear.aspx[7/12/2019 10:22:17 AM]

Search


Tradesman 10 1/2"
x (26.67 cm)
Translucent Clear
Item #: 6775TF
The 9 1/2" x 5 3/4" x 2 3/4" (24.13 x 14.61 x

foam or vacuum trays. Constructed of
props not included

Features

Two Locking Points
Dust Proof
Water Resistant

Search


Tradesman 10 1/2"
x (26.67 cm)
Translucent Clear
Item #: 6775TF
The 9 1/2" x 5 3/4" x 2 3/4" (24.13 x 14.61 x


Features

Two Locking Points
Dust Proof
Water Resistant

Search


Tradesman 10 1/2"
x (26.67 cm)
Translucent Clear
Item #: 6775TF
The 9 1/2" x 5 3/4" x 2 3/4" (24.13 x 14.61 x

props not included

Features

Two Locking Points
Dust Proof
Water Resistant

Crush Resistant
50/50 Lid & Base Split
$4.85
Quantity: 1
Add to Cart
The 9 1/2" x 5 3/4" x 2 3/4" (24.13 x 14.61 x 6.99 cm) Tradesman case can be used to protect, store and
merchandise a wide variety of products. Available in a range of color options, the Tradesman is easy to customize
with adhesive or in-mold labels, logo plates, engraving and custom interior foam or vacuum trays. Constructed of
polypropylene resin, the case features slide open/shut lockable latches with an overlapping lid-to-base closure for a
natural dust and moisture barrier.
You May Also Like

EXHIBIT 6
Tradesman 14" (35.56 cm) Translucent Clear
Search


Tradesman 14"
(35.56 cm)
Translucent Clear
Item #: 6780TN
The 13 1/4" x 7 3/8" x 3" (33.66 x 18.73 x

props not included logo plates, engraving and custom interior

Features

Two Locking Points
Dust Proof
Water Resistant
https://www.flambeaucases.com/tradesman-14-quot-35-56-cm-translucent-clear.aspx[7/12/2019 10:24:31 AM]

Search


Tradesman 14"
(35.56 cm)
Translucent Clear
Item #: 6780TN
The 13 1/4" x 7 3/8" x 3" (33.66 x 18.73 x

props not included dust and moisture barrier.

Features

Two Locking Points
Dust Proof
Water Resistant

Search


Tradesman 14"
(35.56 cm)
Translucent Clear
Item #: 6780TN
props not included

The 13 1/4" x 7 3/8" x 3" (33.66 x 18.73 x

Features

Two Locking Points
Dust Proof
Water Resistant

Search


Tradesman 14"
(35.56 cm)
Translucent Clear
Item #: 6780TN
The 13 1/4" x 7 3/8" x 3" (33.66 x 18.73 x


Features

Two Locking Points
Dust Proof
Water Resistant

Crush Resistant
props not included $5.82

Quantity: 1
Add to Cart
The 13 1/4" x 7 3/8" x 3" (33.66 x 18.73 x 7.62 cm) Tradesman case can be used to protect, store and merchandise
a wide variety of products. Available in a range of color options, the Tradesman is easy to customize with adhesive
or in-mold labels, logo plates, engraving and custom interior foam or vacuum trays. Constructed of polypropylene
resin, the case features slide open/shut lockable latches with an overlapping lid-to-base closure for a natural dust
and moisture barrier.
You May Also Like

EXHIBIT 7
Search


Tradesman 17"
(43.18 cm)
Translucent Clear
Item #: 6785TI
The 16 3/8" x 9 1/4" x 3 1/2" (41.59 x 23.50

x 8.89 cm) Tradesman case can be used to
props not included logo plates, engraving and custom interior

Features

Two Locking Points
Dust Proof
Water Resistant

Search


Tradesman 17"
(43.18 cm)
Translucent Clear
Item #: 6785TI
The 16 3/8" x 9 1/4" x 3 1/2" (41.59 x 23.50

props not included dust and moisture barrier.

Features

Two Locking Points
Dust Proof
Water Resistant

Search


Tradesman 17"
(43.18 cm)
Translucent Clear
Item #: 6785TI
The 16 3/8" x 9 1/4" x 3 1/2" (41.59 x 23.50


Features

Two Locking Points
Dust Proof
Water Resistant

Search


Tradesman 17"
(43.18 cm)
Translucent Clear
Item #: 6785TI
props not included

The 16 3/8" x 9 1/4" x 3 1/2" (41.59 x 23.50

Features

Two Locking Points
Dust Proof
Water Resistant

Crush Resistant
$8.76
Quantity: 1
Add to Cart
The 16 3/8" x 9 1/4" x 3 1/2" (41.59 x 23.50 x 8.89 cm) Tradesman case can be used to protect, store and
merchandise a wide variety of products. Available in a range of color options, the Tradesman is easy to customize
with adhesive or in-mold labels, logo plates, engraving and custom interior foam or vacuum trays. Constructed of
polypropylene resin, the case features slide open/shut lockable latches with an overlapping lid-to-base closure for a
natural dust and moisture barrier.
You May Also Like

EXHIBIT 8
I 1111111111111111 lllll llllll llll lllll lllll 111111111111111 111111111111111111
US00D633294S
c12) United States Design Patent (10) Patent No.: US D633,294 S

Jamison et al. (45) Date of Patent: ** Mar. 1, 2011
(54) CASE D481,868 S 11/2003 Cunningham et al.

D557,897 S * 12/2007 Richardson et al. .......... D3/294
(75) Inventors: David S. Jamison, Twinsburg, OH (US); D572,479 S 7/2008 Buck et al.
Jason C. Sauey, Chagrin Falls, OH (US) 2001/0011620 Al 8/2001 Tiramani et al.
2006/0201958 Al 9/2006 Tiehen et al.
(73) Assignee: Flambeau, Inc., Baraboo, WI (US) OTHER PUBLICATIONS
(**) Term: 14 Years ArtBin Quick View Carry Case by Flambeau, as viewed on http://art.
artbin.com on Jul. 6, 2010 (8 pages). Refer to arrows on pp. 1 and 5. *
(21) Appl. No.: 29/357,316
* cited by examiner
(22) Filed: Mar. 10, 2010 Primary Examiner-Elizabeth A Albert
Assistant Examiner-Karen E Eldridge Powers
(51) LOC (9) Cl. .................................................. 03-01 (74) Attorney, Agent, or Firm-Quarles & Brady LLP
(52) U.S. Cl. ....................................................... D3/282
( 58) Field of Classification Search . ... ... ... ... .. ... D3/201, (57) CLAIM
D3/273,276,280,282,283,284,292,294,
D31295, 315,318,321,323,901,905; 190/121; The ornamental design for a case, as shown and described.
206/349, 373; 220/675; 222/465.1
See application file for complete search history. DESCRIPTION
(56) References Cited FIG. 1 is a right, top, front perspective view of a case accord-
ing to our new design;
U.S. PATENT DOCUMENTS FIG. 2 is a top plan view thereof;
0278,189 S 4/1985 Frydenberg FIG. 3 is a front elevational view thereof;
D314,669 S * 2/1991 Kunimune ................... D3/282
FIG. 4 is a rear elevational view thereof;
D351,504 S * 10/1994 Tarozzi ........................ D3/276
5,394,966 A * 3/1995 Chow ......................... 190/119 FIG. 5 is a right side elevational view thereof, the left side
D357,117 S * 4/1995 Huang ......................... D3/276 elevational view thereof being a mirror image of the right side
D368,371 S * 4/1996 Calmeise ..................... D3/282 shown; and,
D390,357 S * 2/ 1998 Rosen ......................... D3/282
D393,945 S 5/ 1998 Urvoy FIG. 6 is a bottom plan view thereof.
5,915,553 A * 6/1999 Brown et al. ................ 206/372 The broken line representations in the figures illustrate fea-
D412,397 S * 8/ 1999 Liu ............................. D3/282 tures of the article to which the design is applied that form no
D413,202 S * 8/1999 Schmitt et al. ............... D3/276 part of the claimed design. The interior broken line in FIG. 6
D413,440 S * 9/1999 Schurman .................... D3/282 which defines the bounds of the claimed design forms no part
D417,781 S * 12/1999 Staheli ........................ D3/282
thereof.
D419,297 S 1/2000 Richardson et al.
D428,699 S * 8/2000 Gibson et al. ................ D3/282
D439,408 S * 3/2001 Gibson et al. ................ D3/282 1 Claim, 4 Drawing Sheets
U.S. Patent Mar.1, 2011 Sheet 1 of 4 US D633,294 S

' I I I II II I '
FIG. 2
I IIt I I
FIG. 3
111 , ii',, .. 11111 I • • • .. 1111, I. .. ,r;---~ 1 \ \•1

£
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r :;;fl- ... --- ......... - ....... -~-
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11 111111,
< ..;; -..,....,.- ...... - - .....
111111
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111,
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FIG. 4
ft,..~, ~I I I III I I II 11, I

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,r=.,.-==--=---=-·-"'\ 11
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11111111111
!:,1
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:..-::.·..:-:..· --::t'
=-..:.=.:..-= :..-:.·-=-.::..·-=-..: =-..:.= ...-=•11111111
•••llp11111
FIG. 6
EXHIBIT 9
Magnetic Die Storage Case - Includes 3 Magnetic Sheets Page 1 of 2
Crafting creativity since 1954

 Register  Log In
Home Organization & Storage Scrapbooking Storage Magnetic Die Storage Case - Holds 9 x 6-inch Magnetic Sheets - Includes 3 Sheets
Magnetic Die Storage Case - Holds 9 X 6-Inch

Magnetic Sheets - Includes 3 Sheets
Item #: 121810
★★★★★ 4.7 (3)
Keep track of your die-cutting supplies with this magnetic die storage case.
It secures your scrapbook materials with three 9 x 6-inch magnetic sheets,
and it has a semitransparent cover that lets you quickly and easily find what
you're looking for. The magnetic die storage case is easy to carry with its
side handle. Additional magnetic storage sheets are available.

In Stock
Log in for price
SPECIFICATIONS REVIEWS
Magnetic Die Storage Case - Holds 9 x 6-inch Magnetic Sheets - Includes 3

Sheets
Item #: 121810
UPC #: 652695089916
Minimum Qty: 4 EA
Your Price: n/a
Case Pack: 24 EA
Inner Pack: 4 EA
In Stock: Yes
Color: Other
Shape: Other
Brand Name: Darice
Product Type: Cutting Die Storage
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Magnetic Die Storage Case - Includes 3 Magnetic Sheets Page 2 of 2
©2019 Darice, Inc. All rights reserved
https://www.darice.com/store/details/catalog/wholesale-organizers-scrapbooking/121810 7/12/2019
EXHIBIT 10
- I NS/IMRI 11nn f N I I uu
D\E. CUl E.MBOSS\NG STENCIL CASE

Store die cut embossing stencils neatly together
on magnet mats in convenient case.
D\E DE DECOUPE EMBOSSAGE POCHOIR CAS

Magasin die cut-pochoirs de gaufrage soigneusement
ensernb\esur des nattes d'airnant au cos pratique.
MOR\R CORlE REALZANDO LA PLANT,LLA CASO

'Tienda troque\ada, rea\zando las plantillas prolijamente
;untos el iman esteras en caso practico.
l\01111"1 AND CRAFT \TI.NI. 1101 A10"1

ARllCl E. DE. BRICOlAGE.. PAS UN JOU£T • COSADE MANA YARlE. NO ES UN JUGUElE
©OARICE, INC. 2014. OISlRIBUl\:D BY • DISlRIBUE PAR • OISTRIBUIDO PDR
DARICE., INC. • 13000 tlARICE PKWY, STROIIGS~lllE, 011 44149 • WWW.OARICE.COM
CASE NIAtlE Ill CIIIMA • CAS fABRIQUEE Ell CIIIME • CAJA IIECIIA EN CHIMA
MAGM£T Sl\E£TS NIADE IM Tl\E USA • FEUlllES AIMANTEES FABRIQUE AUX E.U.
l\OJAS DEL IM~N l\ECI\O EN lOS EEUU
ASSENIBlED IN usr. • ASSE.MB\.E AUX Etr.TS-\JIIIS • EMSAMBLADO Ell EE.UU.
,
a tro ,• e ada, realzando la
. , ,
os e. 1rnan es eras en caso
HOBBY A, DC . OT TOY
-
· TICLE D RC E. PAS U JOUET • COSA DE,, A IE.
©DAR CE, INC. 2014. DIS RIBUTED B DISTRIBUE P R • DSTRIBUI
DARICE, INC. • 13000 DARICE PK O GS ILLE OH 4149 • WWW.DARICE.COM
•
CASE MADE IN CHINA • C F B 10 E CHI E C "' HECHA EN, CHINA,
AGNET SHEETS .,,
MADE T F U I E F BRIOUE AUX E.U •
HOJAS DEL IMAN HECHO E O II
U ii
SSEMBLEO IN USA E .uu.

EXHIBIT 11
Flambeau Merchant Case Sample Infringing Case
QB\58459401.1
EXHIBIT 12
U.S. Patent D633,294 S Sample Accused Product
QB\58456669.1
U.S. Patent D633,294 S Sample Accused Product
QB\58456669.1
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
Western District
__________ Districtofof
Wisconsin
__________
Flambeau, Inc. )
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
The Michaels Companies, Inc. and Darice, Inc. )
)
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) Darice, Inc.

c/o Registered Agent, Corporation Service Company
50 West Broad Street, Suite 1330
Columbus, OH 43215
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 plaintiff’s attorney,
whose name and address are:
Quarles & Brady LLP
Madison, WI 53703
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:
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) .
u I personally served the summons on the individual at (place)

on (date) ; or
u I left the summons at the individual’s 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 individual’s last known address; or
u I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
u I returned the summons unexecuted because ; or
u Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:

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

for the
Western District
__________ Districtofof
Wisconsin
__________
Flambeau, Inc. )
)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
The Michaels Companies, Inc. and Darice, Inc. )
)
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) The Michaels Companies, Inc.

c/o Registered Agent, Corporation Service Company
251 Little Falls Drive
Wilmington, DE 19808
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 plaintiff’s attorney,
whose name and address are:
Quarles & Brady LLP
Madison, WI 53703
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:
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) .
u I personally served the summons on the individual at (place)

on (date) ; or
u I left the summons at the individual’s 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 individual’s last known address; or
u I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)
on (date) ; or
u I returned the summons unexecuted because ; or
u Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:

JS 44 (Rev. 0) 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 DEFENDANTS

Flambeau, Inc. The Michaels Companies, Inc. and Darice, Inc.
(b) County of Residence of First Listed Plaintiff Sauk County of Residence of First Listed Defendant
(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, and Telephone Number) Attorneys (If Known)
Anthony A. Tomaselli, Anita Marie Boor, Quarles & Brady, LLP,

33 East Main Street, Ste. 900, Madison, WI 53703 (608) 251-5000
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 625 Drug Related Seizure u 422 Appeal 28 USC 158 u 375 False Claims Act
u 120 Marine u 310 Airplane u 365 Personal Injury - of Property 21 USC 881 u 423 Withdrawal u 376 Qui Tam (31 USC
u 130 Miller Act u 315 Airplane Product Product Liability u 690 Other 28 USC 157 3729(a))
u 140 Negotiable Instrument Liability u 367 Health Care/ u 400 State Reapportionment
u 150 Recovery of Overpayment u 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS u 410 Antitrust
& Enforcement of Judgment Slander Personal Injury u 820 Copyrights u 430 Banks and Banking
u 151 Medicare Act u 330 Federal Employers’ Product Liability u 830 Patent u 450 Commerce
u 152 Recovery of Defaulted Liability u 368 Asbestos Personal u 835 Patent - Abbreviated u 460 Deportation
Student Loans u 340 Marine Injury Product New Drug Application u 470 Racketeer Influenced and
(Excludes Veterans) u 345 Marine Product Liability u 840 Trademark Corrupt Organizations
u 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY u 480 Consumer Credit
of Veteran’s Benefits u 350 Motor Vehicle u 370 Other Fraud u 710 Fair Labor Standards u 861 HIA (1395ff) u 485 Telephone Consumer
u 160 Stockholders’ Suits u 355 Motor Vehicle u 371 Truth in Lending Act u 862 Black Lung (923) Protection Act
u 190 Other Contract Product Liability u 380 Other Personal u 720 Labor/Management u 863 DIWC/DIWW (405(g)) u 490 Cable/Sat TV
u 195 Contract Product Liability u 360 Other Personal Property Damage Relations u 864 SSID Title XVI u 850 Securities/Commodities/
u 196 Franchise Injury u 385 Property Damage u 740 Railway Labor Act u 865 RSI (405(g)) Exchange
u 362 Personal Injury - Product Liability u 751 Family and Medical u 890 Other Statutory Actions
Medical Malpractice Leave Act u 891 Agricultural Acts
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS u 790 Other Labor Litigation FEDERAL TAX SUITS u 893 Environmental Matters
u 210 Land Condemnation u 440 Other Civil Rights Habeas Corpus: u 791 Employee Retirement u 870 Taxes (U.S. Plaintiff u 895 Freedom of Information
u 220 Foreclosure u 441 Voting u 463 Alien Detainee Income Security Act or Defendant) Act
u 230 Rent Lease & Ejectment u 442 Employment u 510 Motions to Vacate u 871 IRS—Third Party u 896 Arbitration
u 240 Torts to Land u 443 Housing/ Sentence 26 USC 7609 u 899 Administrative Procedure
u 245 Tort Product Liability Accommodations u 530 General Act/Review or Appeal of
u 290 All Other Real Property u 445 Amer. w/Disabilities - u 535 Death Penalty IMMIGRATION Agency Decision
Employment Other: u 462 Naturalization Application u 950 Constitutionality of
u 446 Amer. w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration State Statutes
Other u 550 Civil Rights Actions
u 448 Education u 555 Prison Condition
u 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
u 1 Original u 2 Removed from u 3 Remanded from u 4 Reinstated or u 5 Transferred from u 6 Multidistrict u 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
15 U.S.C. 1125 et seq.; 35 U.S.C. 271 et seq.
VI. CAUSE OF ACTION Brief description of cause:
Trade dress infringement, false designation of origin, unfair competition, design patent infringement
VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: u Yes u No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
07/12/2019 /s/ Anthony A. Tomaselli
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

JS 44 Reverse (Rev. 0) Case: 3:19-cv-00573 Document #: 1-15 Filed: 07/12/19 Page 2 of 2
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
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.
(b) 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.)
(c) 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.
,9 Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
9 Origin. Place an "X" in one of the seven 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.
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 – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.PLEASE
NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due tochanges in
statue.
9, 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
9,, 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.
9,,, 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.
AO 120 (Rev. 08/10)
Mail Stop 8 REPORT ON THE

TO:
Director of the U.S. Patent and Trademark Office FILING OR DETERMINATION OF AN
P.O. Box 1450 ACTION REGARDING A PATENT OR
Alexandria, VA 22313-1450 TRADEMARK
In Compliance with 35 U.S.C. § 290 and/or 15 U.S.C. § 1116 you are hereby advised that a court action has been
filed in the U.S. District Court Western District of Wisconsin on the following
G Trademarks or ✔ Patents.
G ( G the patent action involves 35 U.S.C. § 292.):
DOCKET NO. DATE FILED U.S. DISTRICT COURT

7/12/2019 Western District of Wisconsin
PLAINTIFF DEFENDANT
Flambeau, Inc. The Michaels Companies, Inc. and Darice, Inc.
PATENT OR DATE OF PATENT

HOLDER OF PATENT OR TRADEMARK
TRADEMARK NO. OR TRADEMARK
1 D633,294 3/1/2011 Flambeau, Inc.
In the above—entitled case, the following patent(s)/ trademark(s) have been included:
DATE INCLUDED INCLUDED BY
G
Amendment G Answer G Cross Bill G Other Pleading
PATENT OR DATE OF PATENT
HOLDER OF PATENT OR TRADEMARK
TRADEMARK NO. OR TRADEMARK
1
In the above—entitled case, the following decision has been rendered or judgement issued:
DECISION/JUDGEMENT
CLERK (BY) DEPUTY CLERK DATE
Copy 1—Upon initiation of action, mail this copy to Director Copy 3—Upon termination of action, mail this copy to Director
Copy 2—Upon filing document adding patent(s), mail this copy to Director Copy 4—Case file copy

Flambeau v. The Michaels Companies - Complaint

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Flambeau v. The Michaels Companies - Complaint

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Case: 3:19-cv-00573 Document #: 1 Filed: 07/12/19 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

(“Darice”), hereby alleges as follows:

1. Flambeau is a Wisconsin corporation with its principal place of business at 801

Lynn Avenue, Baraboo, Wisconsin 53913.

2. Upon information and belief, Michaels is a Delaware corporation with its

place of business at 13000 Darice Parkway, Strongville, Ohio 44149.

4. Upon information in belief, Darice was acquired by Michaels in 2016 and is

currently a wholly owned subsidiary of Michaels.

enrichment. Flambeau is seeking both injunctive relief and damages.

Inc., a Michaels subsidiary, is registered to do business in Wisconsin.

Defendants cause injury to Flambeau in this District.

from this court.

FACTS GIVING RISE TO THIS ACTION

11. Flambeau restates and incorporates by reference all previous allegations.

Flambeau’s Carrying Cases

12. Flambeau is a premiere designer, manufacturer, and supplier of plastic products,

including plastic carrying cases.

and “Tradesman” (hereinafter the “Tradesman Cases”).

Tradesman Cases are shown here and attached as Exhibits 1-7:

Views of the Merchant Case Views of the Tradesman Case

the Tradesman Cases, including trade dress and patent rights.

Flambeau’s Trade Dress Rights

“Merchant 10”), sold as Item #6772TD, incorporates numerous non-functional, distinctive

(hereinafter “Tradesman 14”), sold as Item #6780TN, incorporates non-functional, distinctive

elements. (Flambeau, Products – Carrying Cases – Tradesman 14” Translucent Clear,

visited July 11, 2019), a printout of which is attached as Exhibit 6).

19. By non-limiting example, the Merchant 10 and Tradesman 14 carrying cases

particular shaped grooves.

20. As a second non-limiting example, the Merchant 10 and Tradesman 14 carrying

21. As a third non-limiting example, the Merchant 10 and Tradesman 14 carrying

need for a beveled end section.

they serve only to enhance the case’s profile.

commerce since at least as early as 2009.

through retailers across the United States.

Flambeau’s Design Patent Rights

Patent is attached to this Complaint as Exhibit 8.

ridge below the handle.

Defendants’ Magnetic Die Storage Case

listed as Item #121810 (“Defendants’ Storage Case”).

in Wisconsin. (Darice, Magnetic Die Storage Case,

visited July 11, 2019), a printout of which is attached as Exhibit 9).

several of which are in Wisconsin and the District.

several of which are in Wisconsin and the District.

attached as Exhibit 10.

with sides that angle down to the seam. (Id.).

(Id. (front view)).

Flambeau’s Merchant Case Defendants’ Storage Case Flambeau’s Tradesman

attached as Exhibit 11.

Defendants’ Storage Case Figure 6 of ‘294 Patent

that Defendants would conduct an investigation and report back.

investigation, and their infringement is still ongoing.

Federal Trade Dress Infringement

47. Flambeau restates and incorporates by reference all previous allegations.

Storage Cases, which incorporate non-functional, distinctive, and source-identifying elements of

Flambeau’s trade dress.

49. Defendants’ infringement of Flambeau’s trade dress is likely to mislead and

50. Defendants’ infringement of Flambeau’s trade dress is intentional, willful, and/or

in reckless disregard of Flambeau’s rights.

including monetary damages.

52. If Defendants’ infringement of Flambeau’s trade dress is not enjoined, Flambeau

Federal Law False Designation of Origin

53. Flambeau restates and incorporates by reference all previous allegations.

55. Defendants’ false designation of origin is likely to cause confusion or mistake as