Fourstar v. Amazon - Complaint

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION FOURSTAR GROUP USA, INC. Plaintiff, v. Case No. DEAL GENIUS, INC., AMAZON.COM, INC., and BUY.COM, INC. d/b/a RAKUTEN.COM, Defendants. _______________________________________/

COMPLAINT AND DEMAND FOR JURY TRIAL (Injunctive Relief Sought)

Plaintiff, Fourstar Group USA, Inc. (“Fourstar”), sues Defendants, Deal Genius,

Inc. (“Deal Genius”), Amazon.Com, Inc. (“Amazon”), and Buy.Com, Inc. d/b/a

Rakuten.com (“Rakuten”), and alleges the following:

NATURE OF THE ACTION

1. This is an action for Defendants’ infringement of Fourstar’s federally-

registered copyright.

THE PARTIES

2. Plaintiff, Fourstar, is a Delaware corporation with a major office located in

Clearwater, Florida.

3. Defendant, Deal Genius, is an Illinois corporation with its principal place

of business in Chicago, Illinois. Deal Genius is an online retailer, and “flash deals site,”

that uses its interactive website, www.dealgenius.com, to advertise, market, offer for sale,

and sell goods, including the infringing goods at issue, online.

Case 8:14-cv-02971-CEH-TBM Document 1 Filed 11/26/14 Page 1 of 26 PageID 1

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4. Defendant, Amazon, is a Delaware corporation with its principal place of

business in Seattle, Washington. Amazon is an online retailer that uses its interactive

website, www.amazon.com, to advertise, market, offer for sale, and sell goods, including

the infringing goods at issue, online. Amazon operates two large fulfillment centers

within this judicial district. One of Amazon’s large fulfillment centers is located in

Ruskin, Hillsborough County, and the other is in Lakeland, Polk County, Florida.

5. Defendant, Rakuten, is a Delaware corporation with its principal place of

business in Aliso Viejo, California. Rakuten is an online retailer that uses its interactive

website, www.rakuten.com, to advertise, market, offer for sale, and sell goods, including

the infringing goods at issue, online.

JURISDICTION AND VENUE

6. This is an action, pursuant to 17 U.S.C. §501 et seq., seeking preliminary

and permanent injunctive relief, other equitable relief, recovery of Fourstar’s actual

damages and an award of the profits realized by Deal Genius, Amazon, and Rakuten or,

alternatively, statutory damages. Fourstar also seeks recovery of the costs, expert fees,

and attorneys’ fees it incurs as a result of Defendants’ infringement of Fourstar’s rights

granted under the Copyright Laws of the United States.

7. This Court possesses subject matter jurisdiction over this case under 28

U.S.C. §§1331 and 1338 because this is an action by Fourstar under the Copyright Laws

for Defendants’ infringement of Fourstar’s copyright.

8. This Court possesses personal jurisdiction over Defendants because they

are infringing Fourstar’s federally protected copyright rights within this judicial district,


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have delivered the infringing goods at issue in this judicial district, and because they

maintain interactive websites through which users residing in Florida may their infringing

goods over the internet.

9. Venue properly lies in this judicial district under 28 U.S.C. §1391(b)(2)

because a substantial part of the events giving rise to the claims in this case occurred in

this judicial district, including, but not limited to, the advertising, marketing, and offering

for sale of the Defendants’ infringing goods via their websites in this judicial district and

the shipment of those infringing products to Clearwater, Florida.

10. All conditions precedent to the maintenance of this action have occurred,

been performed, or have been excused or waived.

COUNT I – FEDERAL COPYRIGHT INFRINGEMENT AGAINST DEAL GENIUS, AMAZON, AND RAKUTEN

11. Fourstar realleges and incorporates by reference the allegations in

paragraphs 1 through 10 above as if set forth fully herein.

12. Fourstar specializes in the creation, development, sourcing, and sale of

products, including decorations, food and candy, general merchandise, and household

goods, for sale to the public by retail mass merchandisers.

13. In connection with developing a new product line, Fourstar designed and

authored original, holiday-themed artwork and sculpture titled “Christmas Solar” which

artwork and sculpture was first published on March 25, 2011. Fourstar’s Christmas Solar

Artwork includes artwork and sculpture of a penguin (“Fourstar’s Penguin Artwork”) and

a snowman (“Fourstar’s Snowman Artwork”).


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14. On December 6, 2011, Fourstar obtained a Federal copyright, registration

number VA 1-798-928, for Fourstar’s Penguin Artwork and Fourstar’s Snowman

Artwork (“Fourstar’s Christmas Copyright”). True and accurate copies of the Certificate

of Registration and the copyright deposit for Fourstar’s Christmas Copyright are attached

hereto as Composite Exhibit “A”.

15. Fourstar recently discovered that Deal Genius, Amazon, and Rakuten were

and are selling to the public, through their interactive websites, products that infringe

Fourstar’s Christmas Copyright.

16. Deal Genius continues to advertise, market, and sell products called “Solar

Power Dancing Snowman & Penguin” (the “Infringing Christmas Products”), which

exactly copy Fourstar’s Penguin Artwork and Fourstar’s Snowman Artwork. A screen

shot of Deal Genius’ website showing the Infringing Christmas Products is attached as

Exhibit “B”.

17. Amazon continues to advertise, market, and sell the Infringing Christmas

Products, which were and are fulfilled by Deal Genius. A screen shot of Amazon’s

website showing the Infringing Christmas Products is attached as Exhibit “C”.

18. Rakuten continues to advertise, market, and sell the Infringing Christmas

Products, which were and are fulfilled by Deal Genius. A screen shot of Rakuten’s

website showing the Infringing Christmas Products is attached as Exhibit “D”.

19. Deal Genius, Amazon, and Rakuten are each disseminating and selling the

Infringing Christmas Products without Fourstar’s permission or consent.


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20. The actions of Deal Genius, Amazon, and Rakuten regarding the

Infringing Christmas Products constitute infringement of Fourstar’s Christmas Copyright

in violation of 17 U.S.C. §501.

21. As a result of Deal Genius, Amazon, and Rakuten infringing Fourstar’s

Christmas Copyright, Fourstar has suffered and continues to suffer damages, and is

entitled to all remedies provided by Chapter 5 of Title 17, United States Code.

22. Upon information and belief, the copyright infringement by Deal Genius,

Amazon, and Rakuten will continue unless enjoined by this Court.

23. Fourstar has suffered irreparable injury and has been damaged by the

infringing activities of Deal Genius, Amazon, and Rakuten, and will continue to suffer

damages and irreparable injury unless such infringing actions are enjoined by this Court.

24. Fourstar has no adequate remedy at law to prevent the injuries caused by

the continuing infringement by Deal Genius, Amazon, and Rakuten.

25. Given the clear infringement by Deal Genius, Amazon, and Rakuten of

Fourstar’s copyright, Fourstar will likely prevail on the merits of this action.

26. The balance of the hardships and public interest require that Deal Genius,

Amazon, and Rakuten immediately and permanently cease its infringing activities.

27. Fourstar has retained the law firm of Fee & Jeffries, P.A. to vindicate its

rights against Deal Genius, Amazon, and Rakuten and is obligated to pay reasonable

attorneys’ fees for its attorneys’ services.


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WHEREFORE, Fourstar respectfully requests this Court to:

A. Enter judgment in Fourstar’s favor and against Deal Genius, Amazon, and

Rakuten;

B. Award to Fourstar and against Deal Genius, Amazon and Rakuten:

1) Fourstar’s actual damages;

2) Deal Genius’ profits from its sales of the Infringing Christmas

Products;

3) Amazon’s profits from its sales of the Infringing Christmas

Products;

4) Rakuten’s profits from its sales of the Infringing Christmas

Products;

5) statutory damages, as an alternative to Fourstar’s actual damages

and the profits of Deal Genius, Amazon, and Rakuten; and

6) the attorneys’ fees, expert fees, and costs incurred by Fourstar as a

result of the infringement of Fourstar’s Christmas Copyright by

Deal Genius, Amazon, and Rakuten.

C. Preliminarily and permanently enjoin Deal Genius, Amazon, and Rakuten

from further infringing, or in any way benefiting from their past infringement of,

Fourstar’s Christmas Copyright, specifically including, but not limited to, enjoining the

advertising, marketing, disseminating, selling, and offering for sale the Infringing

Christmas Products; and

D. Grant Fourstar all additional relief that this Court deems appropriate.


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DEMAND FOR JURY TRIAL

Fourstar hereby demands a trial by jury on all issues so triable.

Dated: November 26, 2014 Respectfully submitted, /s/ Richard E. Fee Richard E. Fee

Florida Bar No. 813680 Jillian L. Feltham Florida Bar No. 58383 FEE & JEFFRIES, P.A. 1227 N. Franklin Street Tampa, Florida 33602 (813) 229-8008 (813) 229-0046 (Facsimile) [email protected] [email protected] Counsel for Plaintiff, Fourstar Group USA, Inc.


COMPOSITE EXHIBIT A


Complaint - Composite Ex. A - Page 1
























EXHIBIT B



EXHIBIT C



EXHIBIT D


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Fourstar v. Amazon - Complaint