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ALTUS 6.1-00 I
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
ALTUS HOLDINGS, INC. and
SRG LOGISTICS, LLC,
Civil Action No.: 14-CV-
Plaintiffs,
DEMAND FOR JURY TRIAL
v
ADAM SCHWARTZ and
FRESHeTECH, LLC,
Defendants.
COMPLAINT FOR PATENT AND TRADEMARK INFRINGEMENT BREACH OF
CONTRACT UNJUST ENRICHMENT PROMISSORY ESTOPPEL AND FOR
TORTIOUS INTERFERENCE WITH A PROSPECTIVE ECONOMIC ADV ANT AGE
Plaintiffs ALTUS HOLDINGS, INC. and SRG LOGISTICS, LLC, by and through their
undersigned counsel, hereby file suit against Defendant ADAM SCHWARTZ (hereinafter
defendant or Schwartz ), for design patent and trademark infringement, breach
o
contract,
unjust enrichment, promissory estoppel, and for tortious interference with prospective economic
advantage. Allegations made on belief are premised on the belief that the same are likely to have
evidentiary support after a reasonable opportunity for further investigation and discovery.
JURISDICTION VENUE PARTIES NATURE OF THE ACTION
I
Plaintiff ALTUS HOLDINGS, INC. (hereinafter Altus ) is a New York
Corporation having a place o business located at 33 Thirty-Fourth Street, Brooklyn, New York
11232.
2 Plaintiff SRG LOGISTICS, LLC (hereinafter SRG ) is New York corporation
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9.
Defendant Adam Schwartz represented to Plaintiff Altus that he had invented and
designed a new design for a shower radio, and he provided the patent drawings to Altus for
preparing and filing U.S. Design Patent Appln. Serial No. 29/478,643 on January 7, 2014 which
was recently allowed by the U.S. Patent Office. Also, the issue fee has been paid.
10. On December 31, 2014, Defendant Schwartz assigned ownership
o
all patent
rights, title, and interest to Plaintiff Altus Holdings, Inc. regarding his design o
a shower radio.
Plaintiff Altus now possesses all rights o recovery under U.S. Design Patent Appln. Serial No.
29/478,643, including the right to sue for infringement and recover past damages.
11. Defendant Schwartz is now selling said shower radio to the public without the
permission or consent
o
the owner Plaintiff Altus, in violation
o
said patent rights owned by
Altus which Defendant Schwartz assigned to Plaintiff Altus.
12. Defendant Schwartz s actions are in violation
o
the Patent Act,
35
U.S.C.
100,
et seq., and has caused and is causing damage to the Plaintiff Altus.
13. Therefore, Plaintiff Altus is entitled to recover from the Defendant the damages
sustained by Plaintiff as a result
o
the Defendant s wrongful acts in an amount subject to proof at
trial, including an accounting for profits and damages.
14. Upon information and belief, the Defendant s infringement o Plaintiff Altus s
patent has exceeded 1 million in sales, and has been willful and deliberate, entitling Plaintiff
Altus to increased damages under 35 U.S.C. 284 and to attorney s fees and costs incurred in
prosecuting this action under 35 U.S.C. 285.
15. Defendant s infringement o Altus s exclusive rights under said design patent will
continue to damage Altus, causing irreparable harm for which there is
no
adequate remedy at law,
unless it
is
enjoined by this Court.
3
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COUNT II
COMPL INT FOR TR DEM RK INFRINGEMENT
16.
Plaintiffs repeat, reiterate, and re-allege each and every allegation contained
in
the
previous paragraphs o this Complaint with the same force and effect as though the same were
more fully set forth at length herein.
17.
Plaintiff Altus
is
the owner o federal trademark appln. Serial No. 86/135,136, filed
on December
4
2013, for the trademark SPLASH SHOWER TUNES for wireless audio speakers,
now Registration No. 4,556,026, which has been used as a trademark on said shower radios
to
sell
them
to
the public.
18.
Defendant Schwartz is using the SPLASH SHOWER TUNES trademark
to
sell
said shower radios to the public without the permission o Altus, and without payment
to
Altus,
and in violation o said trademark rights owned by Altus.
19.
Defendant Schwartz's actions are in violation o the Trademark Act, 15 U.S.C.
l 125(a), and have caused and are causing damages o over 500,000 to the Plaintiff Altus.
Therefore, Altus
is
entitled to an accounting for profits and damages, and an injunction to stop said
unlawful sales by Defendant Schwartz.
COUNT III
COMPL INT FOR TR DEM RK INFRINGEMENT OF FRESHeTECH
20.
Plaintiffs repeat, reiterate, and re-allege each and every allegation contained
in
the
previous paragraphs
o
this Complaint with the same force and effect as though the same were
more fully set forth at length herein.
21. A Hong Kong company called Sam Direct Global Trade Co., Limited knew that
another party owned the trademark FRESHeTECH, and that company improperly filed a
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trademark application to register the trademark in the U.S. Trademark Office on December 2 2013.
22.
Plaintiff Altus and Defendant Schwartz agreed to pay the Hong Kong company to
assign the FRESHeTECH trademark application to Plaintiff Altus.
23. However, Defendant Schwartz improperly advised the Hong Kong company to
assign the trademark to his company, FRESHeTECH,
LL
o Florida, instead o to Altus.
24.
Defendant Schwartz breached the agreement and Defendant Schwartz started to use
the trademark FRESHeTECH on behalfo his company, FRESHeTECH, LLC o Florida.
25. Defendant Schwartz has been and is continuing to use the FRESHeTECH
trademark
to
sell said shower radios to the public without the permission
o
Altus, and without
payment to Altus, and in violation o said trademark rights owned by Altus.
26.
Defendant Schwartz's actions are in violation o the Trademark Act, 15 U.S.C.
l 125(a), and have caused and are causing damages o over 500,000 to the Plaintiff Altus.
Therefore, Altus is entitled to an accounting for profits and damages, and an injunction to stop said
unlawful sales
by Defendant Schwartz.
COUNT IV
BREACH OF CONTRACT FOR NON DELIVERY OF PRODUCTS PAID FOR
27.
Plaintiffs repeat, reiterate, and re-allege each and every allegation contained in the
previous paragraphs o this Complaint with the same force and effect as though the same were
more fully set forth at length herein.
28.
On or about March 6, 2014, Plaintiff SRG LOGISTICS, LLC agreed to purchase
and Defendant Adam Schwartz agreed to sell 8,000 units o shower radios, for a deposit o
61,425, and the 8,000 units were to be delivered to Plaintiff SRG. Plaintiff SRG timely paid
Defendant Adam Schwartz the deposit o 61,425, but Defendant refused to deliver to SRG the
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8,000 units, as agreed upon between the parties.
29 This agreement constituted a binding sales contract pursuant
to
the UCC.
30 Defendant Schwartz has failed to deliver to SRG or its designee Altus the 8,000
shower radios, and Defendant Schwartz has failed
to
return said funds o 61,425 to SRG due to
the non-delivery, which SRG has demanded from Defendant Schwartz. Therefore, Defendant
Schwaitz has breached the aforementioned sales contract.
31 To date, Plaintiffs are not in possession o the 8,000 shower radios while Defendant
is in possession o both, the 8,000 shower radios and Plaintiffs money totaling 61,425.
32.
As
a result
o
Defendant Schwmtz' s failure
to
deliver the 8,000 shower radios
to
the Plaintiffs, Plaintiffs have suffered damages in the amount o 61,425 together with costs,
disbursements and interest.
OUNT IV
UNJUST ENRI HMENT
33. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in the
previous paragraphs
o
this Complaint with the same force and effect as though the same were
more fully set forth at length herein.
34. Plaintiffs transferred 61,425 to the Defendant in order to purchase the 8,000
shower radios.
35. Defendant Schwartz received the funds o 61,425 from Plaintiffs but Plaintiffs
have not received the 8,000 shower radios, as agreed upon.
36
To date, Defendant Schwartz
is
in possession o both, the money and the 8,000
shower radios while Plaintiffs have received nothing in return.
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37 As a result, Defendant Schwartz has been unjustly enriched in the amount o
61,425 together with costs, disbursements and interest. Therefore, Plaintiff SRG hereby demands
the return o the 61,425 together with costs, disbursements and interest, because Schwartz has
failed to deliver said 8,000 shower radios to Plaintiff SRG or to Plaintiff Altus.
OUNTY
PROMISSORY STOPP L
38. Plaintiffs repeat, reiterate and re-allege each and every allegation contained in the
previous paragraphs o this complaint with the same force and effect as though the same were
more fully set forth at length herein.
39. On information and belief, Defendant Schwartz made promises, statements and
representations that he would deliver the 8,000 shower radios to Plaintiff SRG or to Plaintiff Altus
for the Plaintiffs.
40. In reliance on said promises, Plaintiff SRG made a payment o 61,425 to
Defendant with the intent to receive the benefits o Defendant 's promises.
41. Defendant accepted Plaintiff's payments but never provided anything that was
promised to Plaintiffs. Specifically, Defendant has not delivered the 8,000 shower radios to the
Plaintiffs.
42. Plaintiffs sustained damages due to their reliance on promises made by Defendant
because they detrimentally changed their position by making said payments to Defendant.
43. As a result, Plaintiffs have suffered damages in the amount o 61,425, together
with costs, disbursements and interest.
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COUNT VI
TORTIOUS INTERFERENCE WITH PLAINTIFFS PROSPECTIVE
ECONOMIC ADVANTAGE WITH AMAZON.COM
44. Plaintiffs repeat, reiterate, and re-allege each and every allegation contained in the
previous paragraphs
o
this Complaint with the same force and effect as though the same were
more fully set forth at length herein.
45
In order to state a claim for tortious interference with prospective economic
advantage, a plaintiff must show: ( ) it had a business relationship with a third party; (2) the
defendant knew
o
that relationship and intentionally interfered with it; (3) the defendant acted
solely out o malice, or used dishonest, unfair, or improper means; and (4) the defendant s
interference caused injury
to
the relationship.
46. Plaintiffs had a business relationship with Amazon.com and Plaintiffs sold many
o
their shower radio products on Amazon.com.
47 Defendant Schwartz knew
o
Plaintiffs business relationship with Amazon.
Consequently, Defendant Schwartz illegally interfered with Plaintiffs business with Amazon
by
sending false written notices to Amazon which illegally stated that Plaintiff was selling counterfeit
products on Amazon, and as a result SRG no longer had the right to sell said shower radios on
Amazon.
48. As a result Defendant Schwartz s illegal actions, Amazon stopped Plaintiff SRG
from listing its products on Amazon.com, which has interfered with the sales by SRG on Amazon,
causing substantial lost sales
to
SRG.
49. By interfering with PlaintiffSRG s relationship with Amazon, Defendant Schwartz
acted with the sole purpose
o
harming Plaintiffs or used dishonest, unfair or improper means in
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doing so
In
all cases, the Defendant Schwartz caused injury to SRO's relationship with Amazon
and caused Plaintiffs a loss o prospective sales revenues on Amazon.
50. Such unlawful interference with the business o Plaintiff SRO by Defendant
Schwartz has caused lost sales
o
at least 1,000,000, and Plaintiff SRO
is
entitled to compensation
for all o the lost sales and damages caused by Defendant Schwartz.
PR YER FOR RELIEF
WHEREFORE Plaintiffs Altus Holdings, Inc. and SRO Logic respectfully request this
Court
to
enter judgment in their favor against Defendant Schwaitz granting the following relief:
1 Finding Plaintiff Altus' allowed U.S. Design Patent Appln. Serial No. 29/478,643
valid and infringed
by
Defendant Schwartz;
2 That preliminary and permanent injunctions be entered enjoining and restraining the
Defendant Schwartz his officers, agents, servants, employees, privies, successors and
assigns, and all persons in active concert, participation and combination with
Defendant Schwartz, from selling or causing to be sold or inducing others to sell, or
using or causing
to
be used or inducing others to use, any shower radio or product
covered by or coming within the scope o or otherwise infringing said allowed U.S.
Design Patent Appln. Serial No. 29/478,643 as provided for in 35 U.S.C. 283, or
including said trademarks SPLASH
SHOWER TUNES and FRESHeTECH;
3
Requiring Defendant Schwaitz to deliver up to be impounded during the pendency
o this action, all infringing shower radios or products in his possession or under his
control, and to withdraw all materials, including advertising and promotional
materials, cartons and containers and, thereafter, to deliver up for destruction all such
copies, as well as molds and any other material for making such design;
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4
An order requiring the Defendant Schwartz to account for and to pay over to the
Plaintiffs all proceeds made by Defendant Schwartz by reason o the wrongful act o
patent infringement and trademark infringement complained o herein, and pay
to
Plaintiffs all damages incurred by Plaintiffs by such wrongful acts including lost
profits and not less than a reasonable royalty as may be determined by an accounting,
and that said damages be trebled pursuant to
35
U.S.C. 284 and 15 U.S.C. 1117 in
view o the flagrant and willful nature o Defendant's conduct;
5 An order requiring Defendant Schwartz
to
pay Plaintiffs their costs and
disbursements in this action;
6 Declaring this case exceptional by reason o Defendant Schwartz's willful
infringement and awarding Plaintiffs their attorney's fees incurred in prosecuting this
action as provided for in
35
U.S.C. 285 and 15 U.S.C. 1117;
7 That a permanent injunction be entered
to
stop Defendant Schwartz from violating
the trademark rights
o
Plaintiff Altus;
8 For a judgment for the payment to Plaintiff SRG o 61,425, plus costs,
disbursements and interest;
9 For a judgment for damages to Plaintiff Altus for its lost sales on Amazon caused by
the tortious interference
o
Defendant Schwartz;
I0 That an injunction be entered to stop Defendant Schwartz from tortiously interfering
with Plaintiff Altus's sales on Amazon; and
11 Granting Plaintiffs such other and further relief as the Court may deem just, equitable,
and proper.
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DEMAND FOR JURY TRIAL
Plaintiffs demand a trial
by
jury on all issues of fact in this case.
Dated: November 26, 2014
Respectfully submitted,
By: s/Ezra Sutton/
EZRA SUTTON ES-2189)
EZRA SUTTON P.A.
Plaza 9 Bldg., 900 U.S. Hwy. 9
Woodbridge,
ew
Jersey 07095
Ph.) 732-634-3520
Email: [email protected]
Attorneys for Plaintiffs
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EXHIBITS
TO THE
COMPL INT
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