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.

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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,

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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.

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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

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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

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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

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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

32. Plaintiff incorporates herein each and every allegation

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.

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36. Plaintiff has no adequate remedy at law.

COUNT III – INDIRECT DESIGN PATENT INFRINGEMENT BY DEFENDANT

BATTAH

37. Plaintiff incorporates herein each and every allegation

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.

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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.

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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.

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Respectfully submitted,

Dated: November 3, 2018 By: s/ W. John Eagan

John Cyril Malloy, III

Florida Bar No. 964,220
[email protected]
W. John Eagan
Florida Bar No. 105,101
[email protected]
Jonathan R. Woodard
Florida Bar No. 96,553
[email protected]

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

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EXHIBIT A
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