Omm Imports v. YRS Group - Complaint
Omm Imports v. YRS Group - Complaint
Omm Imports v. YRS Group - Complaint
Plaintiff,
JURY TRIAL DEMANDED
v.
Defendant.
Plaintiff, OMM IMPORTS, INC., a Florida corporation, d/b/a ZERO GRAVITY, files
this Complaint for Willful Patent Infringement against YRS GROUP, INC., a Nevada
1. This is an action brought pursuant to the Patent Laws of the United States, 35
2. This Court has original jurisdiction pursuant to Title 28, United States Code,
Section 1331, as this case involves a federal question arising under the Constitution, laws or
3. At all times material hereto, OMM IMPORTS, INC., a Florida corporation, d/b/a
ZERO GRAVITY (hereinafter “OMM”), had and has its principle address located in Miami-
4. Based on information and belief, at all times material hereto, YRS GROUP, INC.,
a Nevada corporation, d/b/a/ OPATRA USA (“OPATRA”), has and had its principal address
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located in Nevada, but has conducted business via interstate channels in this judicial district, and
6. Venue is proper in the Southern District of Florida pursuant to Title 28, United
States Code, Section 1391(c) and/or 1400(b) because a substantial part of the events giving rise
to the infringement claims at issue occurred within this judicial district, and OPATRA’s parent
7. All conditions precedent have been met, waived, or satisfied to bring this lawsuit.
GENERAL ALLEGATIONS
8. OMM was formed as a Florida corporation in 2014, and since then has been
focused, inter alia, on designing and developing the safest, most effective, and most uniquely
9. One such product designed and developed by OMM and marketed to consumers
is known as the Perfectio®, which is an FDA-cleared Class II medical device designed by OMM
offering consumers the ability to perform easy, pain free, high-end facial skin rejuvenation in the
comfort and privacy of their own homes. OMM offers the Perfectio® as well as the Perfectio®
Plus (collectively, the “Perfectio® line”). Both devices are identical from a design perspective,
10. The Perfectio® line promotes skin health through the use of light-emitting diodes
11. At one time, red LED facial treatment was exclusively offered through doctor’s
offices and high-end spas, but OMM, though its Perfectio® line, became an industry leader by
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designing and bringing to market red light skin rejuvenation therapy for consumer home use.
12. Consumers who purchase a product from the Perfectio® line receive a Perfectio®
device, its charging base, electrical cord, user manual, warranty, and travel kit, all packaged and
See [Exhibit “B”, larger copies of all images attached throughout this Complaint].
13. On March 3, 2016, as a result of the sleek unique design aspects of the Perfectio®
line, OMM filed U.S. Design Patent Application No. 29/556,810 with the United States Patent
14. Thereafter, on July 11, 2017, the USPTO granted the foregoing application, and
15. Some of the designs set forth in the ‘960 Patent include the following
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16. As is apparent from the foregoing images, FIG. 1 of the ‘960 Patent depicts a
front-elevation view of the patented design; FIG 2, FIG 3 and FIG 4 depict rear-elevation, right-
side and left-side views, respectively, of the same uniquely designed device.
17. The ‘960 Patented design, as embodied in the Perfectio® line, has garnered
18. Unfortunately, as a direct result of such wide success, OMM has recently
discovered several entities promoting competing devices that infringe the claims of the ‘960
Patent.
19. One such infringer is Defendant, OPATRA, which was originally formed as a
company based in the United Kingdom. Presumably based on the heavy consumer demand for
the product, OPATRA recently expanded its operations into the United States, and presently
markets throughout the country over the internet through, at least, http://www.us.opatra.com.
20. One product line marketed by OPATRA via its us.opatra.com web domain
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LED light and heat therapy.” See [Exhibit “C”, a screenshot image from OPATRA’s website].
well as a recently launched SYNERGY Limited Edition device, which corresponds to OMM’s
Perfectio® Plus. (Collectively, the SYNERGY devices are referred to as the “SYNERGY line”)
22. OPATRA markets its competing SYNERGY line to target the exact same
23. In fact, not only has OPATRA copied OMM’s unique patented design, but it has
also copied, almost word-for-word, OMM’s marketing video, as well as OMM’s packaging of
24. In another effort to trade off of OMM’s Perfectio® devices, OPATRA falsely
marks its products as having been cleared by the FDA as a medical device, when, based on
information and belief, OPATRA has not obtained such clearance. See image below:
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25. Additionally, and most importantly, OPATRA styled its device to look virtually
identical stylistically to the Perfectio® line and, more critically, to the claims of the ‘960 Patent.
For example, the following are some additional images of the infringing SYNERGY device:
26. In an effort to avoid this instant litigation, OMM contacted OPATRA to demand
an immediate cessation of all infringing activity. Such efforts were to no avail, as OPATRA
27. As such, OMM has been required to retain the undersigned counsel to pursue its
interests in this matter, and is obligated to pay the undersigned a reasonable attorneys’ fee for
their services, and to reimburse the undersigned for any costs incurred in connection with said
representation.
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COUNT I:
TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
28. Plaintiff re-alleges and re-avers paragraphs one (1) through twenty-seven (27) as
29. This is an action, in part, for temporary and permanent injunctive relief pursuant
to Title 35, United States Code, Section 283, of the United States Patent Act. Said section
provides that this Court may “grant injunctions in accordance with the principles of equity to
prevent the violations of any right secured by patent, on such terms as the court deems
reasonable.”
30. As alluded to in more detail above, OPATRA has infringed, and continues to
infringe, on the claims of the ‘960 Patent by, at least, making, using, selling and/or offering for
31. This action also seeks temporary and permanent injunctive relief pursuant to
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), for OPATRA’s trade dress infringement
32. As alluded to in more detail above, OPATRA has engaged in trade dress
infringement and unfair competition by, inter alia, copying OMM’s distinctive packaging that
33. Such refusal to honor OMM’s exclusive patent rights, and intentional copying of
OMM’s distinctive packaging, has caused, and will continue to cause, irreparable harm. Each
day that OMM is deprived of its earned intellectual property rights causes irreparable injury.
34. OMM has no adequate remedy at law, especially because the property at issue is
intellectual property.
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35. There is no remedy at law that can fully compensate OMM for the deprivation of
said intellectual property rights, and, in light of the facts of this case, there is a substantial
likelihood that OMM will succeed on the merits of the instant case.
WHEREFORE, OMM respectfully requests that the Court enter a temporary and
permanent injunction enjoining OPATRA, and all those in active concert and participation with
it, from using, making, selling, marketing, distributing, transferring, or otherwise infringing on
the claims of the ‘960 Patent and of OMM’s trade dress as more fully set forth above, together
with costs, attorneys’ fees, and such other and further relief as this Court deems just and proper.
COUNT II:
WILLFUL PATENT INFRINGEMENT
36. Plaintiff re-alleges and re-avers paragraphs one (1) through twenty-seven (27) as
37. This is an action for patent infringement pursuant to Title 35, United States Code,
38. As more fully set forth above, OPATRA has infringed, and continues to infringe,
the claims of the ‘960 Patent by, at least, making, using, offering for sale, and/or selling the
39. All such infringing conduct of OPATRA has occurred and was committed by
OPATRA in a willful, knowing, bad-faith, and brazen manner, evidenced not only by the clear
copying of OMM’s Perfectio® line, but also of the bold wholesale copying of OMM’s marketing
40. OPATRA’s actions have caused, and continue to cause, irreparable harm to OMM
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WHEREFORE, OMM respectfully demands judgment against OPATRA for the full
amount of damages sustained, including, but not limited to, any and all remedies available
pursuant to the Patent Laws of the United States, 35 U.S.C. §§ 271, et. seq., which include, but
are not limited to, a reasonable royalty award, disgorgement of the profits received by OPATRA,
treble damages, costs, pre and post judgment interest at the maximum allowable rate, attorneys’
fees, and such other and further relief this Court deems just and proper.
COUNT III:
TRADE DRESS INFRINGEMENT/UNFAIR COMPETITION
41. Plaintiff re-alleges and re-avers paragraphs one (1) through twenty-seven (27) as
42. This is an action for trade dress infringement and unfair competition pursuant to
15 U.S.C. § 1125(a).
Specifically, OMM sells its Perfectio® devices (i) in a rectangular box approximately 10’’ x 4.5’’
x 4.5’’; (ii) made from a shiny moire like fabric; (iii) which contains a diagonal opening on the
side, and a flat opening in the front, opening backwards; (iv) and which contains a felt interior,
(v) and in which the device is located in the bottom-center of the box, facing upwards, with the
45. Notwithstanding OMM’s valid and enforceable rights in and to the Perfectio®
trade dress, OPATRA uses identical packaging for its SYNERGY line, even including almost
identical verbiage on the back of its box regarding the description of the product and the
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46. The SYNERGY device is packaged in an identical gold moire like fabric used by
OMM in connection with its Perfectio® Plus device packaging, while the SYNERGY Limited
Edition is packaged in a silver moire like fabric, such as that used by OMM in connection with
its Perfectio® device, which OPATRA refers to as “rose gold.” Images comparing the packaging
47. Moreover, OMM markets its Perfectio® devices, in part, with an approximately
48. OPATRA has copied this video in substantial part, using almost the exact same
49. By using OMM’s trade dress without permission, OPATRA is unfairly benefiting
from OMM’s investment in the Perfectio® trade dress and the reputation, success, and goodwill
OMM has cultivated through its marketing, promotion, and sales of its Perfectio® devices.
advertising and offering its SYNERGY line for sale is likely to cause consumer confusion and
mistake, and to deceive consumers as to the source, origin, or affiliation of OPATRA’s products.
51. OPATRA’s actions constitute trade dress infringement, unfair competition and
false designation of origin in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
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52. Upon information and belief, OPATRA knew of OMM’s trade dress when it
designed its SYNERGY line. Accordingly, OPATRA’s infringement has been and continues to
WHEREFORE, OMM respectfully demands judgment against OPATRA for the full
amount of damages sustained, including, but not limited to, any and all remedies available
pursuant to Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a,) which include, but are not
limited to, a reasonable royalty award, disgorgement of the profits received by OPATRA, treble
damages, costs, pre and post judgment interest at the maximum allowable rate, attorneys’ fees,
and such other and further relief this Court deems just and proper.
Respectfully Submitted,
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Case 1:18-cv-21705-KMM Document
JS 44 (Rev. 06/17) FLSD Revised 06/01/2017 1-1 COVER
CIVIL EnteredSHEET
on FLSD Docket 04/30/2018 Page 1 of 2
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose
of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) NOTICE: Attorneys MUST Indicate All Re-filed Cases Below.
I. (a) PLAINTIFFS OMM IMPORTS, INC. DEFENDANTS YRS GROUP, INC., a Nevada corporation, d/b/a
a Florida corporation, d/b/a ZERO GRAVITY OPATRA USA,
(b) County of Residence of First Listed Plaintiff Miami-Dade County County of Residence of First Listed Defendant Clark County
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Alexander D. Brown, Esq., The Concept Law Group, P.A., 6400 N.
Andrews Ave, Suite 500, Ft. Lauderdale, FL 33309, 754-300-1500
(d) Check County Where Action Arose: MIAMI- DADE MONROE BROWARD PALM BEACH MARTIN ST. LUCIE INDIAN RIVER OKEECHOBEE HIGHLANDS
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)
(For Diversity Cases Only) and One Box for Defendant)
1 U.S. Government 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4
of Business In This State
2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
VI. RELATED/ (See instructions): a) Re-filed Case YES NO b) Related Cases YES NO
RE-FILED CASE(S) JUDGE: DOCKET NUMBER:
Cite the U.S. Civil Statute under which you are filing and Write a Brief Statement of Cause (Do not cite jurisdictional statutes unless diversity):
VII. CAUSE OF ACTION 35 U.S.C. §§ 271, et. seq
LENGTH OF TRIAL via 5-10 days estimated (for both sides to try entire case)
VIII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION
DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER F.R.C.P. 23
JURY DEMAND: Yes No
ABOVE INFORMATION IS TRUE & CORRECT TO THE BEST OF MY KNOWLEDGE
DATE SIGNATURE OF ATTORNEY OF RECORD
April 30, 2018
VII. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553
Brief Description: Unauthorized reception of cable service
VIII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
Date and Attorney Signature. Date and sign the civil cover sheet.
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EXHIBIT A
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COMPOSITE
EXHIBIT B
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EXHIBIT C
4/1/2018Case 1:18-cv-21705-KMM Opatra - OPATRA 1-5
Document SYNERGY RED LIGHT
Entered onHEATING
FLSD THERAPEUTIC DEVICE
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EN (/_synergy?language=EN¤cy=USD) FR (/_synergy?language=FR¤cy=EUR)
SYNE R GY BY O PATR A
WAV ELEN GTHS IN FRA RED AN D RED LIGHT ARE WELL RESEARC HED TO
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size: 0
Price: 5,490.00 $
Select quantity:
ADD TO CART
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Document SYNERGY RED LIGHT
Entered onHEATING
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(https://www.facebook.com/dialog/oauth
client_id=430469840480865&redirect_uri=http://us.opatra.com/Controls/FbLoginHandler.aspx&state=sdzssbpab
(www.facebook.com) (www.twitter.com)
(www.googleplus.com) (www.pinterest.com)
(www.youtube.com)
© 2015, Opatra by Flow Concept.
All rights reserved
http://www.us.opatra.com/_synergy 2/2