bobcar v. aardvark - amended complaint

8/18/2019 Bobcar v. Aardvark - Amended Complaint

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2. This action arises from Defendant’s use, making, sale, offer for sale,

and/or importing of promotional vehicles, and conduct of activities, that infringe

Plaintiff’s patents and trade dress.

3. This Court has personal jurisdiction over Defendant in that Defendant has

engaged in acts constituting doing business in the State of New York, including in this

judicial district and have intentionally directed its tortious activities toward the State of

New York, including this judicial district. Defendant has committed acts of intellectual

property infringement in New York, including this judicial district, and has delivered the

accused promotional vehicles into the stream of commerce with the expectation that they

will be used and/or purchased by consumers in the State of New York, including this

judicial district. Upon information and belief, Defendant has used the accused vehicles in

this State, including this judicial district, and/or offered for sale and/or sold promotional

vehicles, including promotional vehicles that are the subject of this Complaint, to

consumers in the State of New York.

4.

Venue is proper in this Court, pursuant to 28 U.S.C. §§ 1391, and 28

U.S.C. §1400.

THE PARTIES

5. Plaintiff Bobcar Media, LLC is a limited liability company organized and

existing under the laws of the State of New York having a principal place of business at

110 Wall Street, 4th Floor, New York, New York 10005. Bobcar is the owner of the

patents and trademarks that are the subject of this Complaint.

Case 1:16-cv-00885-JPO Document 10 Filed 03/31/16 Page 2 of 27


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6. Defendant Aardvark Event Logistics, Inc. (“Defendant” or “Aardvark”), is

a corporation organized and existing under the laws of the State of Pennsylvania having a

principal place of business at 1979 Pioneer Road, Huntingdon Valley, PA 19006.

Aardvark makes, uses, offers for sale, sells and/or imports the accused promotional

vehicles in the United States.

FACTS

PLAINTIFF’S PATENTS

AND TRADE DRESS

7. Bobcar Media LLC is the owner of new technology and designs, including

new inventions relating to promotional vehicles.

8. Plaintiff’s unique and innovative designs for promotional vehicles are well

known throughout the United States as a result of the popular promotional vehicles that

Plaintiff has designed, introduced, and commercialized in interstate commerce.

9. On May 17, 2011 United States Patent No. 7,942,461 B2 entitled “Method

and Apparatus for Selling Consumer Products” was duly and lawfully issued to Bobcar

by the United States Patent and Trademark Office (hereafter “the ‘461 patent”). A copy

of the ‘461 patent is attached as Exhibit 1 hereto.

10. On July 17, 2012 United States Patent No. 8,220,854 B2 entitled “Method




11. On April 8, 2014 United States Patent No. 8,690,215 B2 entitled “Method




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12. On January 17, 2012 United States Design Patent No. D 652,353 entitled

“Promotional Vehicle” was duly and lawfully issued to Bobcar by the United States

Patent and Trademark Office (hereafter “the ‘353 patent”). A copy of the ‘353 patent is

attached as Exhibit 4 hereto.

13. On March 26, 2013 United States Design Patent No. D 678,823 entitled

“Promotional Vehicle” was duly and lawfully issued to Bobcar by the United States

Patent and Trademark Office (hereafter “the ‘823 patent”). A copy of the ‘823 patent is

attached as Exhibit 5 hereto.

14. Plaintiff Bobcar also has rights to the trade dress of its promotional vehicle

designs. That trade dress includes the combination and arrangement of the following

features:

a promotional vehicle having a compact cab in the front, and a compactshowroom in back, the showroom having substantially rectangular or square

panels on the left and right sides and rear in the closed position, the vehicle

having a configuration in which those panels are raised above the showroomand above the height of the front cab in an open position, the showroom being

open to the public on three sides when the panels are in the open position,

providing an open air showroom which is used to promote goods or services

displayed in the showroom, wherein the promotional vehicle includes acolorful front cab and colorful back, including a colorful coordinated theme

extending the entire length of the vehicle from front to back and

corresponding to the brand or type of goods or services in the showroom, andwith the vehicle having advertising or promotional materials on the panels

visible in the open and closed positions and corresponding to the brand or type

of goods or services in the showroom.

Examples of Bobcar’s promotional vehicles and their trade dress are attached

as Exhibit 6 hereto.



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15. Bobcar was the first to introduce the combination and arrangement of

features above for a promotional vehicle into interstate commerce.

16. The combination and arrangement of features above constitutes the

distinctive trade dress of Plaintiff Bobcar.

17. Bobcar’s trade dress is inherently distinctive.

18. Bobcar’s trade dress also has acquired distinctiveness, also known as

secondary meaning.

19. Bobcar’s trade dress has acquired distinctiveness as demonstrated by, inter

alia: Bobcar’s expenditures of over a million dollars promoting and popularizing its

trade dress; industry recognition, including: the 2015 EX Silver Award for Best Mobile

Marketing Program, which was awarded to Bobcar’s innovative mobile showroom in a

competitive selection from over a thousand entries from agencies throughout the country;

media coverage of Bobcar’s product and programs; Bobcar’s sales success, having

generated millions of dollars of revenue from its trade dress, and having repeatedly been

chosen for marketing programs by major companies and industry leaders such as

Samsung, T-Mobile, Verizon, Clear, Pentax, and Olympus, among others; Bobcar’s

approximately eight years of exclusive use of the trade dress; the recognition of Bobcar’s

trade dress and the good will associated therewith in the industry, including, recognition

and good will with numerous major consumers; and, Aardvark’s plagiarism, which trades

off of Bobcar’s trade dress and the good will and success associated therewith.

20. Bobcar’s trade dress is also non-functional.



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21. The Bobcar trade dress is a combination and arrangement of features

providing a unique ornamental and aesthetic appearance that was designed by Bobcar.

22. Bobcar’s trade dress is not essential to the use or purpose of a promotional

vehicle.

23. There are numerous alternative means to perform the function of

promoting goods and services without using Bobcar’s trade dress.

24. Plaintiff has used its inventions and designs on promotional vehicles used

in interstate commerce, and has generated extensive revenue from its promotional

vehicles using its trade dress.

25. Plaintiff invested significant time, funds, and effort into the development,

marketing, and commercialization of its inventions, trade dress, and designs, with respect

to promotional vehicles.

26. As a result of Plaintiff’s efforts and promotional, advertising, and

marketing activities, Plaintiff’s promotional vehicles, designs therefor, and trade dress

have become widely known throughout the United States.

27. Plaintiff’s intellectual property including its patents, its trade dress, and

the associated goodwill directed to its promotional vehicles, are all valuable assets of

Plaintiff.

DEFENDANT’S INFRINGEMENT OF

PLAINTIFF’S PATENTS AND TRADE DRESS

28.

During the term of the Bobcar’s patents, Defendant has manufactured or

had manufactured for it, and has offered for sale, sold, used, and/or imported articles

embodying the patented inventions and designs of Bobcar’s patents, and engaged in



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activities infringing Bobcar’s patents, namely, the ‘461, ‘854, ‘215, ‘353, and ‘823

patents.

29. Defendant’s articles that infringe Bobcar’s patents include Defendant’s

“Aardy” promotional vehicles. Examples of Defendant’s infringing promotional vehicles

are attached as Exhibit 7 hereto.

30. Defendant’s accused promotional vehicles infringe at least claim 1 of each

of the utility patents, namely, the ‘461, ‘854, and ‘215 patents, among other claims of the

utility patents.

31.

Claim 1 of the ‘461 patent recites an article of manufacture, comprising:

(a) a self-propelled moving vehicle, said self-propelled moving vehicle

comprising a cab and a showroom, said showroom being provided behind said cab;

(b) said showroom comprising a frame and a display platform, said frame and

display platform defining an internal display area;

(c) said self-propelled moving vehicle comprising a series of panels affixed to

said frame, said series of panels comprising a panel on the left side of said showroom, a

panel on the right side of said showroom, and a panel at the rear of said showroom;

(d) said panels having a front side and a back side, wherein advertising is

provided on at least one of said sides of at least one of said panels to promote a product

or service to consumers;

(e) wherein each of said panels is movable, such that said panels have a lowered

position and a raised position;



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(f) wherein said series of panels surround said showroom on three sides when said

panels are in said lowered position;

(g) wherein said display platform is open to the air on at least three sides when

said series of panels are all in said raised position, such that a consumer can reach in from

the left side, right side, and rear of said showroom to touch any products positioned on

said display platform; and,

(h) wherein advertising is provided on said front of at least one of said panels

when said panels are in said raised position, such that said panel serves as a vertical

billboard above said display platform and above said roof of said showroom.

32. Claim 1 of the ‘854 patent recites an article of manufacture, comprising:



(b) said showroom comprising a display area;

(c) said showroom further comprising a series of panels, said series of panels

comprising a panel on the left side of said showroom, a panel on the right side of said

showroom, and a panel at the rear of said showroom;

(d) wherein each of said panels is movable, such that each of said panels has a

closed position and an open position; and

(e) wherein said display area is open to the air when one or more of said panels is

in said open position, such that a consumer can reach in to touch products positioned in

said display area.

33. Claim 1 of the ‘215 patent recites an article of manufacture, comprising:



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(b) said showroom comprising a display area;

(c) said showroom further comprising a series of panels, said series of panels

comprising a panel on the left side of said showroom, a panel on the right side of said

showroom, and a panel at the rear side of said showroom; and,

(d) wherein each of said panels is movable, such that each of said panels has a

closed position and an open position.

34.

As shown by the images of the accused product in Exhibit 7, and further

images on Defendant’s website, the accused product includes all of the limitations of the

claims set forth above, infringing those claims.

35. Specifically, as shown in Exhibit 7, the accused product is a self-propelled

moving vehicle, the self-propelled moving vehicle having a cab (at the front of the

vehicle), and having a showroom provided behind the cab.

36.

As shown in Exhibit 7, the back of the accused product includes a frame

and a display platform, with the frame and display platform defining an internal display

area.

37. As also shown in Figure 7, the accused product has a series of panels

affixed to that frame. In particular, the accused product includes a panel on the left side

of the showroom, a panel on the right side of the showroom, and a panel at the rear of the

showroom. The panels have a front side and a back side, wherein advertising is provided

on at least one of the sides of at least one of the panels to promote a product or service to



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consumers. Each of the panels is movable, such that they have a lowered or closed

position and a raised or open position. The series of panels surround the showroom on

three sides when the panels are in the lowered position.

38. As shown in Exhibit 7, the display platform of the accused product is open

to the air on at least three sides when the series of panels are all in the raised position,

such that a consumer can reach in from the left side, right side, and rear of the showroom

to touch any products positioned on the display platform.

39. As also shown in Exhibit 7, advertising is provided on the front of at least

one of the panels when the panels are in the raised position, such that the panel serves as

a vertical billboard above the display platform and above the roof of the showroom.

40. Although for any particular patent claim all of the above-cited features of

the accused product are not necessarily needed to infringe, the presence of all of these

features in the accused product confirms that the accused product literally infringes at

least claim 1 of each and every utility patent-in-suit.

41.

Alternatively or additionally, the accused product infringes at least claim 1

of each and every utility patent-in-suit under the doctrine of equivalents.

42. Defendant’s accused promotional vehicles also infringe the single claim of

each of the design patents, namely, the ‘353, and ‘823 patents.

43. An image of one of Defendants’ accused products is attached as Exhibit 7

hereto. Further images are located on Defendant’s website, www.theaardy.com.



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44. In the eye of an ordinary observer, giving such attention as a purchaser

usually gives, Defendants’ accused design and Plaintiff’s patented designs are

substantially the same.

45. An ordinary observer would see the design of Defendants’ accused

product as making the same design impression, or as being the same design, as the

patented design of the ’353 patent.

46. An ordinary observer would likewise see the design of Defendants’

accused product as making the same design impression, or as being the same design, as

the patented design of the ’823 patent.

47. An ordinary observer would likewise consider the accused design, in the

context of any prior art, and giving such attention as a purchaser usually gives, to be the

same as the patented designs of the ‘353 and ‘823 patents.

48. In the eye of the ordinary observer, giving such attention as a purchaser

usually gives, the accused design and patented designs are substantially the same, with

the resemblance being such as to deceive such an observer, inducing him to purchase one

supposing it to be the other.

49. In fact, Defendants’ accused design is virtually identical, if not identical,

to Plaintiff’s patented designs.

50. Defendants’ accused design infringes Plaintiff’s design patent rights.

51. In addition to its acts of patent infringement, Defendant also infringes

Bobcar’s trade dress.



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52. Defendant’s accused product includes all of the features of Bobcar’s trade

dress described above. An example of Defendant’s accused product, including the

features of Plaintiff’s trade dress, is set forth in Exhibit 7. Likewise, numerous images of

further infringements of Bobcar’s trade dress are shown on Defendant’s website,

http://www.theaardy.com.

53. Defendant’s trade dress poses a likelihood of confusing and misleading

consumers into believing that Defendant’s goods originate from, are sponsored by, or are

affiliated with Bobcar.

54.

Defendant’s bad faith activities have caused and will continue to cause a

likelihood of deception and confusion in the marketplace among consumers, and

extensive damage to Bobcar and its business, goodwill and reputation.

55. In addition, there has been actual confusion.

56. Defendant has illegally profited from its infringement of Bobcar’s

patented inventions, designs, and trade dress.

57.

Defendant’s acts have been without license or authority of Bobcar.

WILLFUL INFRINGEMENT

58. Defendant’s activities have been deliberate and willful.

59. Defendant is aware of Bobcar’s patented inventions and designs, and has

deliberately chosen to use, sell, and offer for sale, promotional vehicles intended to copy

or imitate those inventions and designs.

60. Defendant is also aware of Bobcar’s trade dress, and has deliberately

chosen to make, use, sell and/or offer for sale promotional vehicles which incorporate



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highly similar dress, and which are intended to cause confusion with Bobcar’s trade

dress.

61. On December 21, 2015 counsel for Plaintiff Bobcar wrote to Defendant

Aardvark. A copy of that letter is attached as Exhibit 8.

62. In the December 21st letter, counsel for Plaintiff notified Defendant of

Bobcar’s intellectual property, including, but not limited to, the patents-in-suit.

63. Counsel for Plaintiff also notified Defendant that it was infringing

Bobcar’s intellectual property.

64.

Counsel for Defendant responded in a letter dated January 5, 2016. A

copy of that letter is attached as Exhibit 9.

65. In the January 5th letter, counsel for Defendant provided no explanation of

why Defendant Aardvark’s accused product does not infringe.

66. Counsel for Plaintiff Bobcar responded in a letter dated January 12, 2016.

A copy of that letter is attached as Exhibit 10.

67.

In the January 12th letter, counsel for Plaintiff pointed out to counsel for

Defendant that, with respect to the January 5th letter, “there is not a single detail in your

letter supporting your alleged non-infringement position.”

68. Counsel for Defendant Aardvark responded in a letter dated January 19,

2016. A copy of that letter is attached as Exhibit 11.

69. Counsel for Defendant again did not provide any details of any non-

infringement position.



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70. Counsel for Plaintiff responded in a letter dated January 26, 2016. A copy

of that letter is attached as Exhibit 12.

71. In the January 26th letter, counsel for Plaintiff stated to counsel for

Defendant Aardvark as follows: “Upon reviewing your letters, it is likewise apparent that

Aardvark’s product infringes Bobcar’s patents. We pointed out in our January 12, 2016

letter that your January 5th letter did not include even a single detail supporting your

alleged non-infringement position. In your latest letter, that remains the case.”

72. In the January 26th letter, counsel for Plaintiff requested a response by

February 3rd.

73. Despite the numerous requests listed above, Defendant’s counsel was still

unable by that date to provide any justification for its allegations of non-infringement.

74. In fact, counsel for Defendant did not provide a response of any form.

75. Nonetheless, Defendant has deliberately continued to engage in its

infringing activities using its infringing product.

76.

Even though Defendant’s own counsel was unable after numerous

requests to provide even a single detail of an alleged non-infringement position,

Defendant has continued its accused activities.

77. Defendant has knowledge of Bobcar’s patents, and knowledge of an

objectively high risk that its accused vehicle and activities infringe those patents.

78. From December 21, 2015 onward, Defendant has acted despite an

objectively high likelihood that its actions constituted infringement of a valid patent, and



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this objectively-defined risk was either known or so obvious that it should have been

known to the Defendant.

79. Prior to December 21, 2015 Defendant was on constructive notice of

Bobcar’s patent rights.

80. Upon information and belief, prior to December 21, 2015 Defendant was

likewise aware of Bobcar’s products and intellectual property.

81. Upon information and belief, Defendant nonetheless chose to infringe

prior to December 21, 2015 despite an objectively high likelihood that its actions

constituted infringement of a valid patent, with this objectively-defined risk being either

known or so obvious that it should have been known to the accused infringer.

82. Defendant’s actions constitute willful infringement under the current legal

standard, and any future standards of law applicable thereto.

83. Defendant’s activities are, and have been, in bad faith.

84. Defendant has used its infringing promotional vehicles to advertise,

market, and promote third party products to Bobcar’s detriment, offering itself as a

cheaper alternative to Bobcar.

85. Defendant has used its infringing promotional vehicles to advertise,

market, and promote Defendant’s infringing product to Bobcar’s customers and potential

customers.

86. Defendant is and has been knowingly harming Bobcar’s business, using

Bobcar’s own intellectual property.



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87. Defendant’s actions have caused and are causing irreparable damage to

Bobcar.

88. Bobcar has been damaged by Defendant’s bad faith activities and will

continue to be damaged unless Defendant is restrained and enjoined by this Court.

89. Bobcar has no adequate remedy at law.

90. Bobcar has been damaged by Defendant’s illegal actions in an amount to

be determined by a jury and this Court, including recovery and relief for Bobcar’s lost

sales, lost profits, price erosion, and damage to its reputation and good will, and/or a

disgorgement of Defendant’s revenues and profits, and recovery of Bobcar’s attorneys’

fees and costs.

COUNT I

PATENT INFRINGEMENT:

(35 U.S.C. §101 et seq.)

91. Bobcar repeats and re-alleges each and every allegation contained in the

preceding paragraphs as if fully set forth herein.

92.

This claim arises under 35 U.S.C. §101 et seq.

93. This Court has jurisdiction over this claim pursuant to 28 U.S.C. §1331.

94. Defendant’s acts constitute infringement of the ‘461, ‘854, ‘215, ‘353, and

‘823 patents, under 35 U.S.C. §271.

95. Defendant’s acts constitute direct literal infringement, and/or infringement

under the doctrine of equivalents, of each of Bobcar’s design patents, and at least claim 1

of each of Bobcar’s utility patents.

96. Defendant’s acts likewise constitute inducement of infringement.



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97. Upon information and belief, Defendant is inducing third parties to engage

in infringement of Bobcar’s patents.

98. Upon information and belief, Defendant has engaged or is engaging in an

affirmative act to encourage the manufacturer of the accused product to manufacture the

accused product and thereby infringe Bobcar’s patents-in-suit.

99. Upon information and belief, Defendant has and has had specific intent to

induce infringement of Plaintiff’s patents.

100. Upon information and belief, Defendant has and has had actual knowledge

that the induced acts constitute patent infringement, or, has and has had willful blindness

thereto.

101. Defendant’s acts of infringement were and are willful and deliberate.

102. Defendant has profited from its infringing activities.

103. As a result of Defendant’s conduct, Bobcar has been substantially harmed.

Bobcar has suffered, and continues to suffer, substantial damages as a result of

Defendant’s bad faith activities. Bobcar has also suffered actual damages, including lost

profits, and price erosion, and has been forced to retain legal counsel and pay costs of

court to bring this action.

COUNT II

LANHAM ACT TRADEMARK INFRINGEMENT

AND UNFAIR COMPETITION:

(15 U.S.C. §1125(a) )

104.

Bobcar repeats and re-alleges each and every allegation contained in the

preceding paragraphs, as if fully set forth herein.

105.

This claim arises under the Lanham Act, 15 U.S.C. § 1051 et seq.



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107. Defendant’s infringing trade dress is designed and intended to mislead

consumers.

108. Defendant is intentionally using trade dress which is confusingly similar to

Bobcar’s trade dress in a manner that has caused and is likely to cause confusion, or to

cause mistake, or to deceive as to the affiliation, connection, or association of Defendant

with Bobcar, or as to the origin, sponsorship, or approval of Defendant’s goods by

Bobcar.

109.

Defendant’s activities, in selling and offering for sale promotional vehicles

with trade dress which is confusingly similar to Bobcar’s trade dress, constitute unfair

competition, false designation of origin, in violation of Section 43(a) of the Lanham Act,

15 U.S.C. §1125(a).

110. Defendant’s acts of infringement were and are willful and deliberate.

111. Defendant has profited from its illegal and bad faith activities.

112.

As a result of Defendant’s conduct, Bobcar has been substantially harmed.

Bobcar has suffered, and continues to suffer, substantial damages as a result of

Defendant’s bad faith activities. Bobcar has also suffered actual damages, including lost

profits, and price erosion, and has been forced to retain legal counsel and pay costs of

court to bring this action.

COUNT III

UNFAIR COMPETITION UNDER NEW YORK LAW

113. Bobcar repeats and re-alleges each and every allegation contained in the

preceding paragraphs, as if fully set forth herein.



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114. This claim arises under the common law of the State of New York.


116. Bobcar has created its designs, promoted its promotional vehicles, and

created its marketing programs, through years of extensive time, labor, skill and money.

117. Defendant has misappropriated the results of that labor and skill and those

expenditures of Bobcar.

118. Defendant has used trade dress that is confusingly similar to Bobcar, for

identical or highly similar goods, in competition with Bobcar, gaining an unfair

advantage, because Defendant bore little or no burden of expense of development and

promotion of those goods.

119. Defendant has also used the commercial and advertising programs of

Bobcar.

120. An example of one such program is an advertising and marketing program

designed and developed by Bobcar, in which Bobcar’s promotional vehicle trade dress

described above would be used in conjunction with a vehicle that jointly promotes the

products and services of two separate companies, Samsung and T-Mobile.

121. Such program was conceived of, designed, and developed by Bobcar.

122. Defendant has misappropriated Bobcar’s trade dress and advertising and

marketing ideas and program, by use of Bobcar’s promotional vehicle trade dress

described above in conjunction with an infringing vehicle that jointly promotes the

products and services of both Samsung and T-Mobile.



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123. By knowingly using confusingly similar product trade dress for identical

or highly similar goods, to compete against Bobcar’s goods, Defendant has

misappropriated a commercial advantage belonging to Bobcar.

124. By knowingly using Bobcar’s trade dress for identical or highly similar

goods, with the advertising and marketing program that Bobcar developed, to compete

against Bobcar’s goods, Defendant has misappropriated a commercial advantage

belonging to Bobcar.

125. Defendant has deliberately used Bobcar’s intellectual property and ideas

in bad faith, to undercut Bobcar and injure Bobcar and its business.

126. Defendant’s activities constitute bad faith misappropriation of the labors

of Bobcar which is likely to cause confusion, and to deceive purchasers as to the origin of

the goods.

127. Defendant’s actions have caused significant commercial damage to

Bobcar.

128.

Defendant’s conduct is illegal and actionable under the common law of

unfair competition of the State of New York.

129. Bobcar has been injured by Defendant’s illegal actions and is entitled to

the remedies provided under New York law.

DAMAGES

130. Bobcar is being irreparably harmed by Defendant’s infringing activities,

and has no adequate remedy at law.



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131. Bobcar has been extensively damaged by Defendant’s intellectual property

infringement in an amount to be determined by a jury and this Court.

132. Bobcar seeks damages as a result of Defendant’s infringement which

include, but are not limited to: Bobcar’s lost sales, lost profits, price erosion and damage

to its reputation and good will; and/or disgorgement of Defendant’s revenues and profits;

from Defendant’s sales of infringing promotional vehicles, associated parts thereof, and

from convoyed sales.

133. Bobcar requests that this honorable Court assess enhanced damages

against Defendant in the fullest amount permissible by law, including, but not limited to,

treble damages under federal law and punitive damages under New York law, and award

Bobcar its attorneys’ fees, in view of the willful, egregious, malicious, and extensive

nature of Defendant’s bad faith activities complained of herein, and in view of the

numerous violations, the willful nature of the violations, and the significant damage to

Bobcar, as set forth above.

JURY TRIAL DEMAND

134. Pursuant to Rule 38, Fed. R. Civ. P. Bobcar hereby demands a trial by jury

on all issues set forth herein that are properly triable to a jury.

PRAYER FOR RELIEF

WHEREFORE, Bobcar respectfully requests that the Court, upon final hearing of

this matter, grant the following relief against Defendant:

A. That Defendant be adjudged to have engaged in patent infringement of

Bobcar’s rights under United States Patent No. 7,942,461 B2 (“the ‘461



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patent), under 35 U.S.C. §101 et seq.;

B. That Defendant be adjudged to have engaged in patent infringement of



C. That Defendant be adjudged to have engaged in patent infringement of



D. That Defendant be adjudged to have engaged in patent infringement of

Bobcar’s rights under United States Design Patent No. D652,353 (“the

‘353 patent), under 35 U.S.C. §101 et seq.;

E. That Defendant be adjudged to have engaged in patent infringement of

Bobcar’s rights under United States Design Patent No. D678,823 (“the

‘823 patent), under 35 U.S.C. §101 et seq.;

F. That Defendant be adjudged to have engaged in federal unfair competition

and trademark infringement under Section 43 of the Lanham Act, 15

U.S.C. §1125 and unfair competition and trademark infringement under

the common law and statutory law of the State of New York.

G. That the ‘461, ‘854, ‘215, ‘353, and ‘823 patents were duly and legally

issued by the U.S. Patent Office, and are valid and enforceable;

H. That Defendant, its officers, agents, servants, employees, representatives,

distributors and all persons in concert or participation with Defendant be

enjoined pursuant to 35 U.S.C. §283 from engaging in any activities which



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infringe Bobcar’s rights in the patents under 35 U.S.C. §271;

I. That Defendant, its officers, agents, servants, employees, representatives,

distributors, and all persons in concert or participation with Defendant be

enjoined pursuant to 35 U.S.C. §283 from making, using, importing,

exporting, offering for sale and selling any vehicles and engaging in any

activities which directly infringe the patents under 35 U.S.C. §271;

J. That Defendant, its officers, agents, servants, employees, representatives,


preliminarily and permanently enjoined from offering for sale, selling or

marketing merchandise that tends in any way to deceive, mislead or

confuse the public into believing that Defendant’s merchandise in any way

originates with, is sanctioned by, or is affiliated with Bobcar;

K. That Defendant, its officers, agents, servants, employees, representatives,


preliminarily and permanently enjoined from otherwise competing

unfairly with Bobcar;

L. That Defendant, its officers, agents, servants, employees, representatives,


preliminarily and permanently enjoined from engaging in further acts of

misrepresentation regarding Bobcar and Bobcar’s promotional vehicles;

M. That Defendant, its officers, agents, servants, employees, representatives,




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preliminarily and permanently enjoined from engaging in further

deceptive and unfair business practices with respect to Bobcar;

N. That Defendant, its officers, agents, servants, employees, representatives,


preliminarily and permanently enjoined from engaging in further acts

infringing Bobcar’s rights under New York law;

O. That the Defendant be directed to file with this Court and serve on Bobcar

within thirty (30) days after service of the injunction, a report in writing,

under oath, setting forth in detail the manner and form in which the

Defendant has complied with the injunction;

P. That Defendant be required to account for and pay over to Bobcar any and

all revenues and profits derived by it and all damages sustained by Bobcar

by reason of the acts complained of in this Complaint, including an

assessment of interest on the damages so computed, and that the damages

be trebled pursuant Section 35 of the Lanham Act, 15 U.S.C. §1117, as

well as 35 U.S.C. §§284 and 289, and all further applicable law;

Q. That Defendant be required to account for and pay over to Bobcar such

actual damages as Bobcar has sustained as a consequence of Defendant’s

infringement, and that the damages relating to patent infringement be

trebled pursuant to 35 U.S.C. §284, and to account for and pay to Bobcar

all of Defendant’s gains, revenues, profits and advantages attributable to

or derived by Defendant’s infringement.



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R. That each such award of damages be enhanced to the maximum available

for each infringement in view of each of Defendant’s willful infringement

of Bobcar’s rights;

S. That the Defendant be required to deliver up for impoundment during the

pendency of this action, and for destruction thereafter, all copies of the

infringing materials in its possession or under its control and all materials,

including all molds, master models and other materials used for making

same;

T.

That Bobcar be awarded punitive or exemplary damages under New York

law because of the egregious, malicious, and tortious conduct of

Defendant complained of herein;

U. That Bobcar recover the costs of this action including its expenses and

reasonable attorneys’ fees pursuant to 15 U.S.C. §1117, 35 U.S.C. §285

and all further applicable law, because of the deliberate and willful nature

of the infringing activities of Defendant sought to be enjoined hereby,

which make this an exceptional case warranting such award;

V. That Bobcar be awarded pre-judgment and post-judgment interest;

W. That Bobcar obtain all further relief permitted under the laws of the United

States and the State of New York; and,

X. That Bobcar obtain all such other and further relief as the Court may deem

just and equitable.



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Dated: March 31, 2016 /s/Morris E. Cohen

Morris E. Cohen (MC-4620)

Limor Wigder (LW-1986)

GOLDBERG COHEN LLP

1350 Avenue of the Americas, 3rd

Floor New York, New York 10019

(646) 380-2087 (phone)

(646) 514-2123 (fax)[email protected]

[email protected]



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CERTIFICATE OF SERVICE

I hereby certify that on March 31, 2016, a true and correct copy of the foregoing

was served on counsel of record via the Court's ECF system.

Dated: March 31, 2016 /s/ Morris E. Cohen

Morris E. Cohen



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December 21, 2015

Via Federal ExpressPresident

Aardvark Event Logistics, Inc.

1979 Pioneer Road

Huntingdon Valley, PA 19006

Re: Infringement of Bobcar Media’s Intellectual Property

Dear Sir/Madam:

We represent Bobcar Media LLC (“Bobcar”) in the above-captioned matter. Bobcar is the

owner of United States Patent No. 7,942,461, Patent No. 8,220,854, Patent No. 8,690,215, DesignPatent No. D652,353, Design Patent No. D678,823, and further related intellectual property.

It has come to our attention that your company is using Bobcar’s patented articles and

designs for promotional vehicles, and upon information and belief, is making, offering for sale,

selling, and/or importing the same – all without Bobcar’s authorization. Our client’s inventions

are being used, for example, in connection with your “Glade Aardy’s” promotional vehicle, alongwith many others, as illustrated at length on your website www.aardy.com.

Accordingly, we hereby demand that you immediately cease and desist from any and allillegal use, manufacture, offer for sale, sale, and/or importing of any products incorporating our

client’s patented inventions.

In addition, please contact us with a response by Wednesday January 6, 2016, so that

your infringement, and the damages associated therewith, can be addressed without delay. We are

hoping to resolve this matter with voluntary compliance and cooperation on your part.

Our client has directed us to take vigorous action to protect its valuable intellectual property

rights, and to prevent further infringement of its rights. In the event that an amicable settlement

of your violations is not achieved, Bobcar intends to file a lawsuit in the U.S. District Court forthe Southern District of New York to redress your infringement. Accordingly, Bobcar hereby

reserves all rights it has under 35 U.S.C. §271, and all further applicable law and equity. This

includes the right to a court-ordered injunction, and to costs, attorneys’ fees, and damages, whichthemselves may be increased for willful infringement. Such willful infringement, includes, but is

not limited to, any infringement that you engage in after the date of this letter.

Sincerely yours,

/s/ Morris E. Cohen

Morris E. Cohen



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One Logan Square 18th & Cherry Streets Philadelphia, PA 19103

www.BlankRome.com

oca Raton • Cincinnati • Fort Lauderdale • Houston • Los Angeles • New York • Philadelphia • Pittsburgh • Princeton • San Francisco • Shanghai • Tampa • Washington • Wilmi

110106.00602/101856643v.1

Phone: (215) 569-5619

Fax: (215) 832-5619

Email: [email protected]

January 5, 2016

VIA E-MAIL AND FIRST CLASS MAIL:

Morris E. Cohen

Goldberg Cohen LLP

1350 Avenue of the AmericasSuite 425

New York, NY 10019

Re: Allegations of Infringement of Bobcar Media’s

Intellectual Property by Aardvark Event Logistics, Inc.

Dear Mr. Cohen:

This firm represents Aardvark Event Logistics, Inc. (“AEL”)

in connection with certain intellectual property matters. We are

in receipt of your letter of December 21, 2015 alleging that our

client infringes certain patents owned by Bobcar Media LLC. As

you are no doubt aware, allegations of patent infringement are a

very serious matter. Our client has the utmost regard for the

intellectual property rights of others, and thoroughly

investigates all allegations of infringement. In fact, the

configuration of our client’s “Aardy” promotional vehicles is

itself the subject of a federally-registered trademark. See U.S.

Trademark Reg. No. 4,719,992.

Although this letter is not intended as a detailed

discussion of the merits of your allegations, we wish to

emphasize a few critical points. First, we have reviewed thethree utility patents you reference, and we are not convinced

that anything disclosed therein constitutes patentable subject

matter, or that the patents would withstand any level of

scrutiny in litigation. Companies have engaged in the practice

of advertising via self-propelled vehicles for decades—virtually



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January 6, 2016

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110106.00602/101856643v.1

since the advent of the automobile. A quick Internet search

further confirms that several of these concepts are the subject

of granted U.S. and foreign patents that predate the earliest

priority date of the cited patents by several years. In view of

such a vast landscape of prior art, it would be all but

impossible to maintain the presumptive validity of your client’s

patents if they were ever litigated. Moreover, with respect to

the design patents cited, none of our client’s promotional

vehicles can be considered substantially the same as the

patented design(s), particularly when the two are compared in

the context of the prior art mentioned above.

In an effort to resolve this matter amicably, we have

endeavored to provide you with a substantive response prior to

the date requested. However, our client cannot agree to any of

the demands set forth in your letter, as it does not appear to

us that any of the allegations of infringement are even remotely

warranted. Should it become necessary, our client is fully

prepared to mount a vigorous defense to substantiate its own

intellectual property rights in litigation, and to invalidate

your client’s putative patent rights.

Nothing contained in this letter is intended to be, orshould be considered as, an acknowledgement of our client’s

obligation to respond to your letter, an admission of any fact

alleged therein, or a waiver of any rights held by AEL, all of

which are expressly reserved.

Sincerely yours,

TIMOTHY D. PECSENYE

TDP:smj

cc: Aardvark Event Logistics, Inc.



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January 12, 2016

Via Email ([email protected]) Timothy D. Pecsenye

Blank RomeOne Logan Square

18th & Cherry Streets

Philadelphia, PA 19103

Re: Aardvark Infringement of Bobcar Media’s Intellectual Property

Dear Mr. Pecsenye:

Thank you for your letter of January 5, 2016.

With respect to infringement, a comparison of Bobcar’s patent claims to Aardvark’s

product makes it very apparent that Aardvark’s product falls within those claims; and, therefore,

infringes Bobcar’s patents. We see no basis for concluding otherwise. In fact, there is not a singledetail in your letter supporting your alleged non-infringement position.

Regarding validity, your letter asserts that Bobcar’s patents are invalid based on “a quickInternet search”, and asserts in as vague terms as possible that there is allegedly prior art that

predates our client’s earliest priority date. Yet again, however, no details are provided. In fact,

not a single prior art reference was cited in your letter.

Accordingly, we respectfully cannot give your assertions any weight whatsoever.

Furthermore, as you know, Bobcar’s patents are not directed to the general concept of anyadvertising via a self-propelled vehicle. Rather, the patents are legally directed to the specific

subject matter recited in their claims. In the process of examining Bobcar’s patent claims, the U.S.Patent Office conducted detailed searches of the prior art when it examined each and every patent.

Thus, the Patent Office already analyzed the prior art, and did so at least six times. Based upon its

in-depth searches, the Patent Office concluded in each and every case that the claims of Bobcar’s patents do recite patentable subject matter, and it issued those patents. Thus, Bobcar’s patents are

now entitled to a presumption of validity as a matter of law. See, 35 U.S. Code § 282.

As a result, if you have a particular basis for your allegations, we would ask you to forward

those details to our attention so that we can evaluate them. So as to address Bobcar’s concerns as

soon as possible, please provide us with a response by Tuesday January 19, 2016.

Please note that this letter is without prejudice to Bobcar’s rights, all of which are expressly

reserved herein.



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Letter of Jan. 12, 2016 to T Pecsenye

Page 2 of 2

Sincerely yours,

/s/ Morris E. Cohen

Morris E. Cohencc: Bobcar Media LLC



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One Logan Square 18th & Cherry Streets Philadelphia, PA 19103

www.BlankRome.com


140903.00604/101899682v.1

Phone: (215) 569-5619

Fax: (215) 832-5619

Email: [email protected]

January 19, 2016

VIA E-MAIL:

Morris E. Cohen

Goldberg Cohen LLP

1350 Avenue of the AmericasSuite 425

New York, NY 10019

Re: Allegations of Infringement of Bobcar Media’s

Intellectual Property by Aardvark Event Logistics, Inc.

Dear Mr. Cohen:

We write further to your letter of January 12, 2016 in

which you maintain that our client infringes patents assigned to

Bobcar Media LLC. We are disappointed that you continue to

threaten our client with litigation, particularly when the

claims are directed to a mobile kiosk/showroom concept that has

been practiced for decades.

Your letter contends that Bobcar’s patents have been

examined “in-depth” by the U.S. Patent and Trademark Office in

view of the prior art, but our own review of the patents

confirms that the patent examiner named on the utility patents

did not raise a single prior art rejection during prosecution.

Moreover, establishing infringement of a design patent is

exceedingly difficult, and it is readily apparent that the

claimed ornamental designs are not at all similar to ourclient’s Aardy vehicle, much less substantially the same as the

patent laws require the patent owner to demonstrate.

As you know, the AIA’s post-grant proceedings provide for

both ex parte and inter partes review of issued patents at a



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oca Raton • Cincinnati • Fort Lauderdale • Houston • Los Angeles • New York • Philadelphia • Pittsburgh • Princeton • San Francisco • Shanghai • Tampa • Washington • Wilm

140903.00604/101899682v.1

fraction of the cost of litigation. Given that none of the

patents were substantively examined in the first instance, it is

almost certain that the Patent Office would opt to review or re-

examine the patents if our client were to mount a challenge

against them in response to any assertion of the claims against

our client. We further note that post-grant proceedings require

only a showing that there is a “substantial new question of

patentability” or that there is a “reasonable likelihood” that

the claims are invalid over the prior art. Finally, the success

rate of post-grant challenges speaks for itself, and we are

convinced that a post-grant challenge would succeed in thiscase, and on these patents, should it become necessary.

Attached please find three U.S. patent documents that are

of particular relevance to the claims recited in the utility

patents you reference: U.S. Patent Nos. 6,585,305 (“the ’305

patent”) and 7,287,349 (“the ’349 patent”), and U.S. Pat. Pub.

No. 2009/0066106 (“the ’106 publication”). The ’349 patent

discloses an advertising assembly that can be mounted to the bed

of a Low-Speed Electric Vehicle, which appears to be the exact

vehicle that the Aardy is modeled after. See, e.g., Fig. 1:



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The ’349 patent is directed to an advertising assembly that can

be mounted onto the bed of a Low-Speed Electric Vehicle (see

above). The concept of a mobile showroom mounted onto the bed of

a truck (i.e., in place of the advertising display shown above)

was disclosed in the ’305 patent as early as 2001: “A mobile

showroom for displaying merchandise such as furniture andclothing, is comprised of a drivable truck body that has a

freight section converted to a merchandise showroom with see-

through panels and, optionally, scrolling displays that can be

used to showcase the merchandise or show different types of

merchandise, or to provide transparent sections through which

the merchandise itself may be viewed.” ’305 patent at Fig. 1 and

Abstract.



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The ’305 patent also discloses that “As described below, the

mobile showroom 10 comprises a vehicle 12 that has a driver’s

cabin 15 and a freight cabin 20. The freight cabin 20 is

illustrated to be substantially of rectangular shape, With a

superstructure 14, defined by various side walls or panels,

including a rear wall 22, a driver’s-side panel 24 and a

passenger-side panel 26, as well as a front panel 34. These

walls or panels define an interior space 16, in which a

collection of merchandise, such as furniture and the like, is

intended to be arranged. The interior 16, which is the actual

showroom, is optionally separated from the driver cabin 16 by a

storage space 18, to which access may be had via side door 36

that can be opened by handle 38. Access to the showroom 16 may

be provided through a rear door 21, having a door handle 23 and

supported by hinges 25.” ’305 patent at 3:10-25.

Finally, the ’106 publication discloses a multifunctional

compartment for vehicles with movable panels, including

specifically “to be used for various special vehicles and can be

extended to achieve additional functions, for instance,

advertising when loading goods.” ’106 publication at [0007] and

Figs. 5a and 5b.



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In view of the above references, it would have been a matter ofroutine experimentation to substitute the mobile showroom and/or

a multifunction compartment for the advertising display of the

’349 patent in order to display merchandise and/or additional

advertising. However, our review of the relevant prior art is



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still ongoing, and any contentions made herein should in no way

be seen as an admission or adoption of any particular claim

scope or construction, or as any admission that any particular

element is met in any particular way, or any representation that

the prior art cited is the most applicable or analogous art of

record.

We are hopeful that this correspondence resolves any

question as to our position regarding the merits of your

infringement claims. As I stated in my earlier letter, we are

quite certain our client does not infringe any valid claims of

the patents you reference, and nothing contained in this letter

is intended to be, or should be considered as, an

acknowledgement of our client’s obligation to respond to your

letter, an admission of any fact alleged therein, or a waiver of

any rights held by our client, all of which are expressly

reserved.

Sincerely yours,

TIMOTHY D. PECSENYE

TDP:smj

cc: Aardvark Event Logistics, Inc.

Attachments



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January 26, 2016

Via Email: [email protected]

Timothy D. PecsenyeBlank Rome LLPOne Logan Square

130 North 18th Street

Philadelphia, PA 19103-6998

Re: Aardvark Infringement of Bobcar Media’s Intellectual Property

Dear Mr. Pecsenye:

We have received your letter of January 19, 2016 on behalf of your client Aardvark Event

Logistics, Inc. (“Aardvark”). Your latest letter continues to make it clear that Aardvark’s allegeddefenses are entirely without merit.

In your letter of January 5, 2016, you had alleged that Bobcar’s patents were invalid dueto a “vast landscape of prior art” including references around “virtually since the advent of the

automobile.” But when we requested specifics as to this “vast landscape,” you subsequently

forwarded us a mere three references.

In fact, none of those references detract in any way from the strong presumption of validity

attached to our client’s patents. Indeed, your letter deliberately avoids reference to the claimlanguage of Bobcar’s utility patents, and likewise avoids the scope of the claim of each design

patent.

The closest reference to a patent claim in your January 19, 2016 letter is the single sentencethat Bobcar’s claims “are directed to a mobile kiosk/showroom concept that has been practiced for

decades.” However, absolutely no evidence thereof is provided. Nor does your letter provide an

analysis of even one patent claim. Yet, the only way to properly conduct a legal analysis is withreference to the specifics of the claims.

Moreover, it is very revealing that the letter of January 19 th admits that your “review of therelevant prior art is still ongoing.” That would not be necessary if you had any actual grounds for

your allegation that our client’s inventions had been “practiced for decades.” The fact that you

need to continue your review is because you have no real evidence of invalidity.

Upon reviewing your letters, it is likewise apparent that Aardvark’s product infringes

Bobcar’s patents. We pointed out in our January 12, 2016 letter that your January 5th letter did not

include even a single detail supporting your alleged non-infringement position. In your latestletter, that remains the case.



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Accordingly, we expect Aardvark to immediately cease and desist its illegal activity, and

to respect Bobcar’s patent rights. Please confirm by Wednesday February 3rd that Aardvark willbe discontinuing its illegal use of Bobcar’s patented inventions and designs, without any further

delay.

Likewise, we request an accounting of all revenues, profits, and gains relating toAardvark’s infringing vehicles. Specifically, we require:

1.

The total quantity of infringing vehicles manufactured by or for Aardvark, and the

identity of any manufacturer and/or other third party involved in the manufacturing or

distribution of the infringing vehicles.

2.

The total quantity of infringing vehicles used in the past by Aardvark, and the identity of

each agency and customer for whom promotional activities were conducted using those

vehicles, and/or to whom those vehicles were provided.

3.

An accounting of Aardvark’s total revenues and gross profits relating to the use,manufacture, sale and/or offer for sale of the infringing vehicles, including a breakdownof the revenues generated from Aardvark’s use of the infringing vehicles to promote third

party products, with the details of the infringing uses such as the marketing campaigns.

4.

The total number of infringing vehicles that Aardvark has in its present inventory.

Please provide this information to us by February 3 rd, or confirm that it is being gathered

and will be promptly forwarded to our attention.

This letter is without prejudice to Bobcar’s rights, including the right to pursue any and all

legal remedies available to it at any time without further notice.

Sincerely yours,

/s/ Morris E Cohen


bobcar v. aardvark - amended complaint

Documents