Schwarzmann LLC v. Battah - Complaint

Case 9:18-cv-81515-DMM Document 1 Entered on FLSD Docket 11/03/2018 Page 1 of 11
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
SCHWARZMANN, LLC,
a Florida limited liability
company,
Plaintiff,
vs.
ANTOUNE E. BATTAH, JR.,

an individual,
IMPERIAL USA HANS KRUG, INC.,
d/b/a HANS KRUG
a Florida corporation, and
IMPERIAL USA, LTD.,
d/b/a HANS KRUG
a North Carolina limited
company,
Defendants.
________/
COMPLAINT FOR DESIGN PATENT INFRINGEMENT AND UNJUST ENRICHMENT
Plaintiff, Schwarzmann, LLC (“Plaintiff”), by and through
undersigned counsel, hereby files its Complaint for Design Patent
Infringement and Unjust Enrichment against Antoune E. Battah, Jr.,
(“Battah”), Imperial USA Hans Krug, Inc. (“Hans Krug FL”), and
Imperial USA, Ltd. (“Hans Krug NC”), (collectively “Defendants”)
and alleges as follows:
THE PARTIES
1. Plaintiff, Schwarzmann, LLC, is a limited liability
company organized and existing under the laws of the State of
Florida, with an address at 360 North Congress Ave., Delray Beach,
FL 33445.
2. Upon information and belief, Defendant, Antoune E.
1
Battah, Jr. is an individual, is a principal officer of Hans Krug
FL and Kans Krug NC, and is the motivating and driving force behind
the acts complained of herein, with the authority to supervise and
control the infringing and tortious acts of the Defendants.
3. Upon information and belief, Defendant Imperial USA Hans
Krug, Inc. is a corporation organized and existing under the laws
of the State of Florida, with an address at 190 Glades Rd., Suite
A, Boca Raton, FL 33432.
4. Upon Information and belief, Defendant Imperial USA, Ltd.
is a limited company organized and existing under the laws of the
State of North Carolina, with an address at 5808 Long Creek Park
Drive, Suite A, Charlotte NC 28269.
JURISDICTION AND VENUE
5. This is an action for injunctive and other relief under
the patent laws of the United States, 35 U.S.C. §1, et seq., for
design patent infringement, as well as for unjust enrichment under
the common law of the State of Florida.
6. This Court has jurisdiction over this action pursuant to
28 U.S.C. §§1331, 1338, and 1367.
7. Upon information and belief, personal jurisdiction is
proper in that:
a. Defendant Hans Krug FL is incorporated in Florida;
b. Defendant Hans Krug NC has operated, conducted,
engaged in, or carried on a business venture, and has engaged
in substantial and not isolated activity within this state,
2
and within the Southern District of Florida;
c. Defendant Battah has operated, conducted, engaged
in, or carried on a business venture, and has engaged in
substantial and not isolated activity within this state, and
within the Southern District of Florida; and
d. the Defendants have committed tortious acts within
this state, and within the Southern District of Florida,
including the acts complained of herein.
8. Venue is also proper under 28 U.S.C. §1400(b) because
Defendant Hans Krug FL resides within the Southern District of
Florida, and Defendants Battah and Hans Krug NC, upon information
and belief, have committed acts of infringement within the Southern
District of Florida, and have a regular and established place of
business within the Southern District of Florida, namely, via the
related entity Hans Krug FL.
9. Venue is also proper under 28 U.S.C. §§1391(b) because a
substantial part of the events or omissions giving rise to the
claims occurred within the Southern District of Florida, and a
substantial part of property that is the subject of the action is
situated within the Southern District of Florida.
FACTUAL BACKGROUND
10. Michael Schlütter is a principal of Schwarzmann, as well
as its designer.
11. Over his career, Mr. Schlütter has attained renown and
recognition for his furniture and interior designs.
3
12. Mr. Schlütter’s first contact with the defendants
occurred sometime prior to 2013 when the Defendants sought a
license to use some of Mr. Schlütter’s designs for its kitchen and
living room portfolio.
13. In 2013, Mr. Schlütter, along with his business partner
Marlon Carias, incorporated Schwarzmann, LLC as a new venture to
offer design services in Delray Beach, Florida.
14. Additionally, on or around that time, Messrs. Schlütter
and Carias conceived of, and began preparations to produce, an
ornamental and highly distinctive bookshelf, a work of art which is
entitled “Localumentum.”
15. In connection with the newly formed Schwarzmann venture,
Mr. Schlütter, via a related German entity, contacted Hanak, a
highly regarded European furniture manufacturer, and entered into
an agreement with Hanak to construct Schwarzmann’s designs. This
included the prototype and development work to manufacturer a high-
quality commercial embodiment of the Localumentum bookshelf.
16. Schwarzmann invested substantial time, money, and efforts
in developing its relationship with Hanak.
PLAINTIFF’S PATENT AND TRADE DRESS RIGHTS
17. Schwarzmann is the owner by way of assignment of U.S.
Design Patent No. D722,459 (“the ‘459 Patent”) which was duly and
lawfully issued on February 17, 2015, for the ornamental design of
its innovative Localumentum bookshelf, as shown and described
therein (hereafter, the “Schwarzmann’s Patented Design”). See
4
Exhibit A.
DEFENDANTS’ INFRINGING ACTIONS
18. At some point during the course of Schwarzmann’s
interactions with Hanak, upon information and belief, Defendant
Battah discovered Schwarzmann’s relationship with Hanak, and took
steps to improperly interfere with that relationship.
19. To wit, several months after signing an agreement with
Schwarzmann for the supply of furniture, Hanak notified Schwarzmann
that all orders made by Schwarzmann must “go with the express
consent of Hans Krug.” Moreover, Hanak delivered all Schwarzmann
designs in its possession to Hans Krug, which included the
commercial prototype of Schwarzmann’s Patented Design.
20. Upon information and belief, Hanak’s about-face was
spurred by improper influences asserted by Defendant Battah.
21. The loss of Schwarzmann’s supplier relationship caused a
number of consequential damages, including delays, as Schwarzmann
looked for a new supplier which could manufacture designs according
to its stringent quality standards.
22. While Schwarzmann had been determined to focus its
efforts on proceeding with its own pursuits, more recently
Schwarzmann discovered that Defendants have been using, displaying,
importing, offering for sale, and/or selling Schwarzmann’s Patented
Design as if it were a Hans Krug design.
23. Accordingly, the Defendants, who are direct competitors
of Schwarzmann, have been unjustly enriching themselves, by first
5
placing Schwarzmann at a competitive disadvantage via the delays
and consequential damages caused by the interference, and then
proceeding to market, import, offer for sale, and/or sell
Schwarzmann’s Patented Design, having improperly obtained the
prototype and, presumably, drawings and manufacturer know-how,
without incurring the associated development costs themselves.
24. The Defendants have unfairly profited from Schwarzmann’s
own time and monetary efforts to develop Schwarzmann’s Patented
Design.
25. The Defendants’ past and continuous use, display,
marketing, promoting, importing, offering for sale, and/or selling
of Schwarzmann’s Patented Design further constitutes a deliberate
and willful scheme to infringe upon the ‘049 Patent, without
Plaintiff’s consent.
COUNT I – UNJUST ENRICHMENT
26. Plaintiff incorporates herein each and every allegation
set forth in paragraphs 1 through 25 as if fully set forth herein.
27. The Defendants have obtained an unfair benefit from
Schwarzmann, by virtue of the Defendants’ interference with
Schwarzmann’s contract with Hanak, and via the Defendants’ use,
promotion, marketing, offers for sale, and/or sales of
Schwarzmann’s Patented Design, without having incurred the costs
associated with development of same.
28. The Defendants knew that they had unfairly and improperly
obtained this benefit, and retained this benefit by continuing to
6
promote, market, offer for sale, and/or sell Schwarzmann’s Patented
Design.
29. The Defendants’ aforementioned activities placed
Schwarzmann at a competitive disadvantage and have harmed
Schwarzmann.
30. Schwarzmann has no adequate remedy at law.
31. Accordingly, the circumstances are such that it would be
inequitable for the Defendants to maintain the benefit of their
unfair actions, without paying fair value to Schwarzmann.
COUNT II – DESIGN PATENT INFRINGEMENT
set forth in Paragraphs 1 through 25 as if fully set forth herein.
33. Defendants’ aforesaid acts, including the unauthorized
manufacture, import, use, sales, and/or offering for sale of goods
embodying the design as disclosed and claimed in the ‘459 Patent,
i.e., Schwarzmann’s Patented Design, constitute infringement of the
‘459 Patent.
34. Defendants’ aforesaid acts have deprived Plaintiff of
sales that Plaintiff otherwise would have made, entitling Plaintiff
to the profits of Defendant in addition to other available
remedies.
35. Defendants’ aforesaid acts have caused and will cause
great and irreparable injury to Plaintiff, and unless said acts are
restrained by this Court, they will be continued and Plaintiff will
continue to suffer great and irreparable injury.
7
36. Plaintiff has no adequate remedy at law.
COUNT III – INDIRECT DESIGN PATENT INFRINGEMENT BY DEFENDANT

BATTAH
set forth in Paragraphs 1 through 25 as if fully set forth herein.
38. Defendant Battah has been and is inducing infringement of
the ‘459 Patent by actively and knowingly inducing Hans Krug FL and
Hans Krug NC to use, display, offer for sale, and/or sell
Schwarzmann’s Patented Design as claimed in the ‘459 Patent.
39. Defendant Battah’s infringement has been and continues to
be knowing, intentional, and willful.
40. Defendant Battah’s aforesaid acts have deprived Plaintiff
of sales that Plaintiff otherwise would have made, entitling
Plaintiff to the profits of Defendant in addition to other
available remedies.
41. Defendant Battah’s aforesaid acts have caused and will
cause great and irreparable injury to Plaintiff, and unless said
acts are restrained by this Court, they will be continued and
Plaintiff will continue to suffer great and irreparable injury.
42. Plaintiff has no adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays:
A. This this Court will adjudge that the Defendants’
aforesaid acts constitute unjust enrichment under the common law of
the State of Florida.
8
B. That this Court will adjudge that the ‘459 Patent is
valid, enforceable, and has been infringed as a direct and
proximate result of the acts of Defendant as set forth herein, in
violation of Plaintiff’s rights under 35 U.S.C. §1, et seq.
C. That Defendants, and all of their officers, directors,
agents, servants, employees, attorneys, successors, and assigns,
and all persons in active concert or participation therewith, be
permanently enjoined and restrained from further manufacture, use,
sale, offer for sale and/or import of Schwarzmann’s Patented Design
and all other infringement of the ‘049 Patent.
D. That Defendant be required to deliver up for destruction
all of Schwarzmann’s Patented Designs in its possession, custody,
or control, along with all plates, molds, matrices, plans and other
means of making the aforesaid items.
E. That Defendants be directed to file with this Court and
to serve upon Plaintiff within ten (10) days after service of the
injunction issued in this action, a written report, under oath,
setting forth in detail the manner of compliance with the above.
F. That Schwarzmann recover damages adequate to compensate
it for the Defendants’ patent infringement, but in no event less
than a reasonable royalty for the use made of the Plaintiff’s
Patented Design by Defendant, and in addition to the amount of
actual damages found, such sums shall be in an amount three (3)
times the amount of the actual damages found pursuant to 35 U.S.C.
§284.
9
G. That Plaintiff have and recover the profits of Defendant
derived from the use of the infringing designs under the ‘049
Patent, pursuant to 35 U.S.C. §289.
H. That the Defendants be required to pay fair value to
Schwarzmann for their acts of unjust enrichment.
I. That Schwarzmann be awarded punitive damages under the
common law of the state of Florida.
J. That Schwarzmann have and recover both pre-judgment and
post-judgment interest on each and every damage award.
K. That the Court find this case to be exceptional and award
Plaintiff its reasonable attorney fees incurred in this action,
pursuant to 15 U.S.C. §1117, 35 U.S.C. §285, and as otherwise
authorized.
L. That Schwarzmann have and recover its taxable costs and
disbursements herein, pursuant to 15 U.S.C. §1117, and as otherwise
authorized.
M. That the Court retain jurisdiction of this action for the
purpose of enabling Schwarzmann to apply to the Court at any time
for such further orders and interpretation or execution of any
order entered in this action; for the modification of any such
order for the enforcement or compliance therewith and for the
punishment of any violations thereof.
N. That Schwarzmann have and recover such further relief as
the Court may deem just and proper.
10
Respectfully submitted,
Dated: November 3, 2018 By: s/ W. John Eagan
John Cyril Malloy, III

Florida Bar No. 964,220
jcmalloy@malloylaw.com
W. John Eagan
jeagan@malloylaw.com
Jonathan R. Woodard
jwoodard@malloylaw.com
MALLOY & MALLOY, P.L.

2800 S.W. Third Avenue
Miami, Florida 33129
Telephone: (305) 858-8000
Facsimile: (305) 858-0008
Attorneys for Plaintiff,

Schwarzmann, LLC
11
Case 9:18-cv-81515-DMM Document 1-1 Entered on FLSD Docket 11/03/2018 Page 1 of 8
EXHIBIT A

Schwarzmann LLC v. Battah - Complaint

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Case 9:18-cv-81515-DMM Document 1 Entered on FLSD Docket 11/03/2018 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

ANTOUNE E. BATTAH, JR.,

COMPLAINT FOR DESIGN PATENT INFRINGEMENT AND UNJUST ENRICHMENT

Plaintiff, Schwarzmann, LLC (“Plaintiff”), by and through

undersigned counsel, hereby files its Complaint for Design Patent

Infringement and Unjust Enrichment against Antoune E. Battah, Jr.,

Imperial USA, Ltd. (“Hans Krug NC”), (collectively “Defendants”)

and alleges as follows:

1. Plaintiff, Schwarzmann, LLC, is a limited liability

company organized and existing under the laws of the State of

Florida, with an address at 360 North Congress Ave., Delray Beach,

2. Upon information and belief, Defendant, Antoune E.

Battah, Jr. is an individual, is a principal officer of Hans Krug

the acts complained of herein, with the authority to supervise and

control the infringing and tortious acts of the Defendants.

3. Upon information and belief, Defendant Imperial USA Hans

Krug, Inc. is a corporation organized and existing under the laws

of the State of Florida, with an address at 190 Glades Rd., Suite

A, Boca Raton, FL 33432.

4. Upon Information and belief, Defendant Imperial USA, Ltd.

is a limited company organized and existing under the laws of the

State of North Carolina, with an address at 5808 Long Creek Park

Drive, Suite A, Charlotte NC 28269.

JURISDICTION AND VENUE

5. This is an action for injunctive and other relief under

design patent infringement, as well as for unjust enrichment under

the common law of the State of Florida.

6. This Court has jurisdiction over this action pursuant to

28 U.S.C. §§1331, 1338, and 1367.

7. Upon information and belief, personal jurisdiction is

a. Defendant Hans Krug FL is incorporated in Florida;

b. Defendant Hans Krug NC has operated, conducted,

engaged in, or carried on a business venture, and has engaged

in substantial and not isolated activity within this state,

and within the Southern District of Florida;

c. Defendant Battah has operated, conducted, engaged

in, or carried on a business venture, and has engaged in

substantial and not isolated activity within this state, and

within the Southern District of Florida; and

d. the Defendants have committed tortious acts within

this state, and within the Southern District of Florida,

including the acts complained of herein.

8. Venue is also proper under 28 U.S.C. §1400(b) because

Defendant Hans Krug FL resides within the Southern District of

and belief, have committed acts of infringement within the Southern

District of Florida, and have a regular and established place of

business within the Southern District of Florida, namely, via the

related entity Hans Krug FL.

9. Venue is also proper under 28 U.S.C. §§1391(b) because a

substantial part of the events or omissions giving rise to the

claims occurred within the Southern District of Florida, and a

substantial part of property that is the subject of the action is

situated within the Southern District of Florida.

10. Michael Schlütter is a principal of Schwarzmann, as well

recognition for his furniture and interior designs.

12. Mr. Schlütter’s first contact with the defendants

occurred sometime prior to 2013 when the Defendants sought a

living room portfolio.

13. In 2013, Mr. Schlütter, along with his business partner

Marlon Carias, incorporated Schwarzmann, LLC as a new venture to

offer design services in Delray Beach, Florida.

14. Additionally, on or around that time, Messrs. Schlütter

and Carias conceived of, and began preparations to produce, an