`
`Andrew Gerber
`Kathleen Mallon
`KUSHNIRSKY GERBER PLLC
`27 Union Square West, Suite 301
`New York, NY 10003
`(212) 882-1320
`Attorneys for Plaintiff Sara M. Lyons
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`____________________________________________
`
`
`:
`Case No. 21-cv-03785
`SARA M. LYONS,
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`
`
`:
`: COMPLAINT
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` Plaintiff,
`:
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` v.
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`
`:
`JURY TRIAL DEMANDED
`AMAZON.COM, INC. and DOES 1-10,
`:
`
`:
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` Defendants.
`:
`
`____________________________________________ :
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`Plaintiff Sara M. Lyons (“Plaintiff”), by and through her attorneys Kushnirsky Gerber
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`PLLC, for her complaint against Amazon.com, Inc. (“Amazon”) and Does 1-10 (collectively,
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`“Defendants”), alleges as follows:
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`NATURE OF THE ACTION
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`1.
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`Plaintiff Sara M. Lyons is an independent artist and designer based in Anaheim,
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`California. Ms. Lyons sells original enamel pins, embroidered patches, and other products, all
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`featuring her original designs. Ms. Lyons sells her products direct to consumers through her
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`website, located at www.saramlyons.myshopify.com, and through authorized third-party retailers.
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`2.
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`One of Ms. Lyons’s most iconic designs is the original two-dimensional artwork,
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`entitled Whatever Forever (the “Original Design”), shown below.
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`1
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 2 of 19
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`3.
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`Defendant Amazon is one of the largest e-commerce retailers in the world. Amazon
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`advertises and sells a wide variety of products on its e-commerce website, located at
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`www.amazon.com (the “Amazon Website”), and via its branded mobile application. Products on
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`the Amazon Website that are identified as “ships from and sold by Amazon.com” are offered for
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`sale, packaged, and shipped directly by Amazon from its warehouses.
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`4.
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`Without obtaining or seeking any permission from Ms. Lyons, Defendants created,
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`sold, manufactured, caused to be manufactured, and/or distributed products featuring a design that
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`is substantially similar to the Original Design (the “Infringing Design”), shown below.
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`
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`5.
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`Defendants created the Infringing Design by directly tracing the hand on the right
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`of the Original Design to create the hand on the right of the Infringing Design. Defendants then
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`mirror-imaged the hand to create the hand on the left of the Infringing Design. An overlay of the
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`Original Design and Infringing Design, shown below, demonstrates that the two designs are
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`virtually identical.
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`2
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 3 of 19
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`6.
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`Amazon sold and distributed t-shirts featuring the Infringing Design directly to
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`consumers (the “Infringing Product”), shown below.
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`7.
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`Ms. Lyons sent Amazon notice of her copyright claims in the Original Design in
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`April 2020. Despite initially removing the listing in or around April or May 2020, in or around
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`January 2021 Amazon restored the listing for the Infringing Product on the Amazon Website.
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`Amazon has continued to advertise and sell the Infringing Product.
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`8.
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`Ms. Lyons asserts claims for copyright infringement under the United States
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`Copyright Act, 17 U.S.C. § 101 et seq. (the “Copyright Act”) and distribution of infringing goods
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`3
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 4 of 19
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`with copyright management information removed in violation of the Digital Millennium Copyright
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`Act, 17 U.S.C. § 1201 et seq. (the “DMCA”). She seeks monetary damages, injunctive relief,
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`costs, and attorneys’ fees.
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`PARTIES, JURISDICTION AND VENUE
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`9.
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`This is an action for copyright infringement under the Copyright Act and
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`distribution of infringing goods with copyright management information removed in violation of
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`the DMCA, 17 U.S.C. § 1202(b). The Court has subject matter jurisdiction pursuant to 17 U.S.C.
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`§ 501 and 28 U.S.C. §§ 1331 and 1338, and supplemental jurisdiction pursuant to 28 U.S.C. §
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`1367.
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`10.
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`Plaintiff Sara M. Lyons is an individual residing in Anaheim, California. Ms. Lyons
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`owns the copyright for the Original Design and has satisfied the requirements of 17 U.S.C. § 411(a)
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`prior to filing this complaint. A copy of the copyright registration certificate for the Original
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`Design is attached as Exhibit A. Ms. Lyons operates an e-commerce website, located at
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`www.saramlyons.myshopify.com, through which she regularly sells products directly to
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`consumers in this District.
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`11.
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`Defendant Amazon is a publicly traded corporation organized under the laws of the
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`State of Delaware with its principal place of business located at 410 Terry Avenue North, Seattle,
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`WA 98109. Amazon has numerous offices, fulfillment centers, warehouses, and other locations in
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`this District. Amazon does systematic business in New York and in this District; and routinely
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`sells and ships goods to consumers here. Amazon has also committed acts outside of New York
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`that caused injury to Ms. Lyons within New York and this District; regularly does or solicits
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`business in New York and this District; derives substantial revenue from goods sold or services
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`rendered in New York and this District; expects or reasonably should expect its infringing conduct
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`4
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 5 of 19
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`to have consequences in New York and this District; and derives substantial revenue from
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`interstate commerce.
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`12.
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`Defendants Does 1-10 are manufacturers, retailers and/or suppliers who sold the
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`Infringing Products whose identities are unknown to Plaintiff at this time. Plaintiff believes that
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`information obtained in discovery will lead to the identification and locations of Does 1-10 and
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`permit Plaintiff to amend this Complaint to state the same.
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`13.
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`The Court has personal jurisdiction over Defendants pursuant to Fed. R. Civ. P. 4
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`and N.Y. C.P.L.R. §§ 301 and 302(a).
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`14.
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`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and 1400 because
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`Amazon does substantial business in this district, has a substantial number of employees and
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`locations in this District, and is subject to personal jurisdiction here.
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`FACTUAL BACKGROUND
`
`A.
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`Plaintiff’s Original Design
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`15. Ms. Lyons is a popular independent artist and designer who makes a living selling
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`her original designs in the form of enamel pins, embroidered patches, and other products. Known
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`for irreverent interpretations of symbols of contemporary culture, Ms. Lyons has a large and
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`devoted base of fans and consumers.
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`16. Ms. Lyons sells a variety of products featuring her original designs direct to
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`consumers
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`through her
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`e-commerce website
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`and online
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`storefront,
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`located
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`at
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`www.saramlyons.myshopify.com, and through various authorized third-party websites and
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`retailers.
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`17. Ms. Lyons created the Original Design in 2013.
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`5
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 6 of 19
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`18.
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`Since creating the Original Design, Ms. Lyons has used it as the underlying art for
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`various products she sells directly and through authorized licensees. A few examples of original
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`and licensed products featuring the Original Design are shown below.
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`19. Ms. Lyons holds federal copyright registration No. VA0001952541 for the Original
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`Design. The corresponding copyright registration certificate is attached as Exhibit A.
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`20.
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`Numerous forms of copyright management information, namely Ms. Lyons’s
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`signature, name, logo, website address, social media handle, and copyright notice featuring the
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`“©” copyright symbol are included on authorized copies of the Original Design and their
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`packaging, as shown below. This information, which is created and placed on authorized copies
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`of the Original Design and their packaging via a digital and technological process involving
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`computer and printing machinery, serves to identify Ms. Lyons as the author and copyright owner
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`of the Original Design.
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`6
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 7 of 19
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`Plaintiff further conveys such copyright management information in connection with the Original
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`Design on her website, social media accounts, and third-party websites.
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`B.
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`Defendants’ Infringements and Unlawful Conduct
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`21.
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`Defendant Amazon is one of the largest e-commerce retailers in the world. In 2020,
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`Amazon reported over $386 billion in annual revenue. Amazon advertises and sells a wide variety
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`of products on the Amazon Website and via its branded mobile application. Products on the
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`Amazon Website that are identified as “ships from and sold by Amazon.com” are offered for sale,
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`packaged, and shipped directly by Amazon from its warehouses.
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`22.
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`In or around June 2019, Ms. Lyons discovered that Amazon was offering a t-shirt
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`(the “Infringing Product”) featuring the Infringing Design. The Amazon Website lists the
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`7
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 8 of 19
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`Infringing Product under the style name, “Whatever Forever Funny 90s Hand Gesture Who Cares
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`Tee.” Amazon’s listing for the Infringing Product is shown as Exhibit B.
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`23.
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`The Amazon Website listing states that the Infringing Product “ships from and sold
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`by Amazon.com,” indicating that Amazon is selling the Infringing Product directly.
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`24.
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`A comparison of the Original Design, the Infringing Design, and the Infringing
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`Product is shown as Exhibit C.
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`25.
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`In April 2020, Ms. Lyons sent Amazon a cease-and-desist letter, demanding that
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`Amazon immediately stop selling and displaying the Infringing Product and provide information
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`regarding the Infringing Product’s sales, distribution, and suppliers.
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`26.
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`Amazon did not substantively respond to Ms. Lyons’s claims. Instead, Amazon
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`merely removed the listing for the Infringing Product from the Amazon Website. Amazon did not
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`respond to Ms. Lyons’s demand for information regarding the Infringing Product’s sales,
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`distribution, and suppliers, nor did it otherwise engage in settlement negotiations.
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`27.
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`In or around January 2021, Amazon restored the listing for the Infringing Product
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`on the Amazon Website, and has continued to advertise and sell the Infringing Product to
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`consumers.
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`28.
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`Amazon has continued to flagrantly advertise and sell the Infringing Product to
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`consumers after receiving notice of Ms. Lyons’s copyright claims in the Original Design.
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`29.
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`Defendants’ infringement of the Original Design has been flagrant and willful.
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`Defendants never attempted to contact Ms. Lyons to inquire about properly licensing her work.
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`Instead, Defendants simply copied it, without Ms. Lyons’s permission, and without including Ms.
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`Lyons’s signature, name, logo, website address, social media handle, or copyright notice featuring
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`the “©” copyright symbol, information Ms. Lyons places on authorized copies of the Original
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`8
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 9 of 19
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`Design and their packaging. Moreover, despite having formal notice of Ms. Lyons’s claim of
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`authorship in the Original Design, Amazon has continued selling the Infringing Product with the
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`copyright management information removed.
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`30. Ms. Lyons has been significantly damaged by Amazon’s unlawful uses of the
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`Original Design and has been forced to file this Action in order to protect her rights.
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`31. Ms. Lyons seeks actual damages, disgorged profits, statutory damages, injunctive
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`relief, and other relief as the Court deems just and proper.
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`FIRST CLAIM FOR RELIEF
`COPYRIGHT INFRINGEMENT - 17 U.S.C. § 501, et seq.
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`
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`32.
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`Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1
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`through 31 above and incorporates them herein by this reference.
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`33.
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`Plaintiff is the legal owner of all right, title, and interest in the Original Design.
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`Plaintiff is the legal owner of the copyright in that work.
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`34.
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`Defendants have copied, reproduced, distributed, adapted, and/or publicly
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`displayed elements of the Original Design without the consent, permission, or authority of
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`Plaintiff.
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`35.
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`Defendants have infringed the copyright in the Original Design by placing a
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`substantially similar design onto the Infringing Product, which was created, distributed, and/or
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`displayed without Plaintiff’s authorization.
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`36.
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`Defendants’ conduct constitutes infringement of Plaintiff’s copyright and exclusive
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`rights in violation of 17 U.S.C. §§ 106 and 501.
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`37.
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`Defendants’ acts of infringement have been willful, intentional, purposeful, and in
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`reckless disregard of and with indifference to the rights of Plaintiff.
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`9
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 10 of 19
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`38.
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`As a result of Defendants’ acts of copyright infringement as alleged herein, Plaintiff
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`has suffered and will continue to suffer damages in the United States and around the world in an
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`amount yet to be determined.
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`39.
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`Plaintiff is entitled to her actual damages and Defendants’ profits attributable to the
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`infringement both in the United States and around the world, pursuant to 17 U.S.C § 504.
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`40.
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`41.
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`Alternatively, Plaintiff is entitled to statutory damages, pursuant to 17 U.S.C. § 504.
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`Defendants’ acts have caused and will continue to cause irreparable harm to
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`Plaintiff unless restrained by this Court.
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`42.
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`Plaintiff is entitled to an order enjoining and restraining Defendants, during the
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`pendency of this action and permanently thereafter, from manufacturing, distributing, importing,
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`exporting, marketing, displaying, offering for sale, or selling the Infringing Product or any other
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`products which bear substantially similar copies of Plaintiff’s copyrighted Original Design.
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`43.
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`Plaintiff has no adequate remedy at law.
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`SECOND CLAIM FOR RELIEF
`DISTRIBUTION OF INFRINGING GOODS WITH COPYRIGHT MANAGEMENT
`INFORMATION REMOVED - 17 U.S.C. § 1202(b)
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`
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`44.
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`Plaintiff repeats and realleges each and every allegation set forth in paragraphs 1
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`through 43 above, and incorporates them herein by this reference.
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`45.
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`The Original Design includes conspicuous copyright management information,
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`which is conveyed in connection with the Original Design as well as authorized products featuring
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`the Original Design and their packaging and protected under 17 U.S.C. § 1202(b).
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`46.
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`Plaintiff further conveys such copyright management information in connection
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`with images of the Original Design that appear on her website, her social media accounts, and
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`third-party websites.
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`10
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 11 of 19
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`47.
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`Defendants knowingly distributed the Infringing Product which features a copy of
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`the Original Design that is missing the copyright management information placed on authorized
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`copies of the Original Design and its packaging.
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`48.
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`Defendants were on notice that they were selling infringing goods with copyright
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`management information removed and continued to do so even after receiving such notice.
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`49.
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`Upon information and belief, Defendants knowingly sourced, sold, and distributed
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`the Infringing Product, which features a copy of the Original Design that is missing the copyright
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`management information placed on authorized copies of the Original Design and its packaging.
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`50.
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`Upon information and belief, Defendants knowingly sold infringing products
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`featuring copies of the Original Designs from which copyright management information had been
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`intentionally removed.
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`51.
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`Defendants knowingly distributed and imported for distribution unauthorized
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`copies of the Original Designs from which copyright management information had been
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`intentionally removed.
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`52.
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`Defendants distributed the Infringing Products with the knowledge that doing so
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`would induce, enable, facilitate, or conceal an infringement of Plaintiff’s rights under the
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`Copyright Act, 17 U.S.C. § 101 et seq.
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`53.
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`Defendants engaged in these activities without the consent or authorization of
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`Plaintiff.
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`54.
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`Plaintiff has been injured as a result of this violation of 17 U.S.C. § 1202(b) and is
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`entitled to injunctive relief, impounding of the Infringing Product, damages, costs, and attorneys’
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`fees. Pursuant to 17 U.S.C. § 1203(c)(3), Plaintiff may also elect to recover statutory damages of
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`up to $25,000 for each violation of 17 U.S.C. § 1202(b).
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`11
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 12 of 19
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`
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff demands judgment as follows:
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`1.
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`Awarding Plaintiff her actual damages in connection with Defendants’ copyright
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`infringement;
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`2.
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`Awarding Plaintiff all of Defendants’ disgorged worldwide profits from sales of the
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`Infringing Product;
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`3.
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`Awarding Plaintiff statutory damages under the Copyright Act, 17 U.S.C. § 504(c),
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`as well as attorneys’ fees and costs under the Copyright Act, 17 U.S.C. § 505;
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`4.
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`Awarding Plaintiff $25,000 per violation of 17 U.S.C. § 1202(b), ordering the
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`impounding of the Infringing Product under 17 U.S.C. § 1203, and awarding Plaintiff’s costs and
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`attorneys’ fees under 17 U.S.C. § 1203;
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`5.
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`Granting an injunction that permanently restrains and enjoins Defendants from
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`copying, reproducing, distributing, adapting, and/or publicly displaying the Original Design or any
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`elements thereof;
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`6.
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`Awarding Plaintiff interest, including prejudgment interest, on the foregoing sums;
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`and
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`7.
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`Awarding Plaintiff such other and further relief as the Court may deem just and
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`proper.
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`DEMAND FOR JURY TRIAL
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`
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`Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury in this action of all issues
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`so triable.
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`12
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 13 of 19
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`Respectfully Submitted,
`
`KUSHNIRSKY GERBER PLLC
`
`
`
`
`By:
`Andrew Gerber
`andrew@kgfirm.com
`Kathleen Mallon
`kathleen@kgfirm.com
`
`27 Union Square West, Suite 301
`New York, NY 10003
`(212) 882-1320
`
`Attorneys for Plaintiff Sara M. Lyons
`
`Dated: New York, New York
`
`April 28, 2021
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`13
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 14 of 19
`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 14 of 19
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`EXHIBIT A
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`EXHIBIT A
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`14
`14
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 15 of 19
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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
`been made a part of the Copyright Office records.
`
`Wow; A giant
`
`Register of Copyrights, United States of America
`
`Registration Number
`
`VA 1-952-541
`Effective Date of Registration:
`March 18, 2015
`
`Title
`
`Title of Work: Whatever Forever
`
`Completion/Publication
`
`
`
`2013
`Year of Completion:
`February 11, 2013
`Date of lst Publication:
`Nation of 15‘ Publication: United States
`
` Author
`
`0
`
`SARA LYONS
`Author:
`2—D artwork
`Author Created:
`Citizen of: United States
`Domiciled in: United States
`Year Born:
`1985
`
`Copyright Claimant
`
`
`
`Copyright Claimant:
`
`SARA LYONS
`543 West Hampshire Ave, Apt: 1, Anaheim, CA, 92805, United States
`
`,, Rightsand Permissions
`
`
`
`Name: Tristram Buckley
`Email:
`tristram_buckley@yahoo.corn
`Telephone:
`(3 10)980— 1842
`Address:
`426 S. Rexford Drive
`Suite 12
`Beverly Hills, CA 90212
`Certification
`
`Name: Tristram Buckley
`Date: March 18, 2015
`
`Page 1 of 2
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`15
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 16 of 19
`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 16 of 19
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`EXHIBIT B
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`EXHIBIT B
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`16
`16
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 17 of 19
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 18 of 19
`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 18 of 19
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`EXHIBIT C
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`EXHIBIT C
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`18
`18
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`Case 1:21-cv-03785-LGS Document 1 Filed 04/28/21 Page 19 of 19
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`Original Design
`
`
`
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`Infringing Design
`
`
`Infringing Product
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`19
`
`