Case 1:18-cv-00276 Document 1 Filed 04/02/18 Page 1 of 30
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, AUSTIN DIVISION
ZIP TOP, LLC, AND FINELL CO., LLC, Plaintiffs, v. BLUEAVOCADO CO., Defendant.
§ § § § § § § § § §
CIVIL ACTION NO. 1:18-cv-00276 JURY TRIAL REQUESTED
ORIGINAL COMPLAINT
Plaintiffs bring this action seeking declaratory judgment against defendant BlueAvocado Co. as follows:
NATURE OF THE ACTION AND BACKGROUND
1.
This action arises out of an attempted business partnership, wherein BlueAvocado
sought Finell Co., LLC to design a new line of heat-resistant, lightweight storage bags based on concepts disclosed in BlueAvocado’s patent publications, as well as other products.
After
exploratory discussions, Rebecca Finell determined the fit was not good and the parties parted ways without entering into a partnership agreement. 2.
BlueAvocado sought Rebecca Finell, CEO of Finell Co., LLC, because she has a
proven track record of disrupting traditional product categories with her innovative product designs and marketing. In 2004, Rebecca Finell founded founded Boon, Inc., through which she created and invented a wide variety of award winning BOON™ brand baby products, which parents everywhere now use every day. In 2008, she she founded Keen Distribution to distribute baby
Case 1:18-cv-00276 Document 1 Filed 04/02/18 Page 2 of 30
products, such as the Bumbo™ baby bab y seat. More recently, she founded Finell Co., LLC through which she launched FINELL® brand luxury products, which quickl y received international design recognition, the attention of top luxury stores, and ongoing features in high-profile press and movies for its award-winning luxury home goods and handbags. 3.
After deciding not to partner with BlueAvocado, Rebecca Finell founded Zip Top
LLC through which she applied and continues to apply her creative genius and product development connections to produce Zip Top™ containers. BlueAvocado now claims claims her Zip Zip Top™ containers infringe BlueAvocado patents, trademarks, and trade dress, and asserts she has violated a non-disclosure agreement and misappropriated proprietary information. 4.
Plaintiffs Finell Co. and Zip Top seek a declaration from this court that Zip Top™
containers do not infringe any intellectual property rights of BlueAvocado and that Finell Co. and Zip Top have not violated the non-disclosure agreement or misappropriated trade secrets.
PARTIES
1.
Plaintiff Finell Co., LLC is a Texas Limited Liability Company with a principal
place of business in Austin, Texas. 2.
Plaintiff Zip Top, LLC is a Texas Limited Liability Company with a principal place
of business in Austin, Texas. 3.
Plaintiff Zip Top offers virtually indestructible and endlessly reusable storage
containers molded from platinum silicone silicone that stand up and stay open. Zip Top™ containers are food safe, freezer safe, microwave safe, and oven safe heat resistant to 425 degrees Fahrenheit. 4.
Defendant BlueAvocado Co. is a Texas Corporation with a mailing address of P.O.
Box 1691, Austin, TX 78767. Defendant BlueAvocado Co. may be served via its registered agent, Capitol Corporate Services, Inc., 206 E. 9th St. St. Ste. 1300, Austin, Austin, Texas 78701-4411.
2
On
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information and belief, Defendant BlueAvocado Co. is headquartered and conducts operations in Austin, Texas. 5.
BlueAvocado markets and sells plastic bags die cut cu t from sheets of plastic and then
heat staked/sealed at the joints. JURISDICTION AND VENUE
6.
The Western District of Texas has subject matter jurisdiction over this action as it
involves patent rights arising under federal law, namely 35 U.S.C. § 100 et seq.; trademark and trade dress rights arising under federal law, namely 15 U.S.C. § 1051 et seq.; and trade secrets arising under federal law, namely 18 U.S.C. § 1836 et seq. 7.
This action seeks a declaratory judgment and other relief under the Declaratory
Judgment Act, 28 U.S.C. §§ 2201–2202. It presents an actual case or controversy under Article III of the United States Constitution and serves the essential purpose of clarifying and settling the legal rights at issue. Specifically, this action in part seeks a declaration declaration that Plaintiffs have not violated any of BlueAvocado’s patent, trademark, or trade dress rights and that Plaintiffs P laintiffs have not violated any obligation of confidentiality or misappropriated trade secrets.
To the extent
BlueAvocado’s threat of litigation alleges a “violation of confidentiality” that sounds in Texas Tex as law and not federal law, this Court may ma y exercise supplemental jurisdiction over those state law claims. 8.
This Court has general personal jurisdiction over BlueAvocado at least because
BlueAvocado is a Texas business entity and, upon information and belief, is headquartered and conducts business in this judicial district. 9.
This Court has specific personal jurisdiction over BlueAvocado at least because all
of the relevant events and acts took place in this judicial district.
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VENUE
10.
Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1) and pursuant to
28 U.S.C. § 1400(b) because BlueAvocado resides in Austin, Texas.
GENERAL ALLEGATIONS Rebecca Finell’s Prior Experience
11.
Rebecca Finell has proven herself as a product designer and brand strategist.
12.
In 2004, she founded Boon Inc., and served as its president, principal designer, and
chief brand strategist. strategist. Through Boon, she invented and marketed innovative and award winning baby products, including: the Boon™ green grass drying rack, the Boon™ squirt spoon, and the Boon™ “Frog Pod,” which is a stylish tool for scooping toys out of a bathtub and hanging them out of the way to dry.
13.
Detailed
information
about
these
BOON™
products
is
available
at
www.booninc.com.. www.booninc.com 14.
In 2008, she started Keen Distribution Distribution and served as its CEO. Keen took other
brand's baby products products and distributed distributed them into the U.S. market. It grew very fast, more than $5M in year one. Keen elevated many products, including the Bumbo™ baby seat with branding, product redesigns, packaging, photography, marketing, copy, new line extensions. Rebecca Finell personally showed/sold each product line to big mass market buyers in the U.S. market.
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15.
In 2011, Rebecca Finell sold Keen Distribution and Boon, Inc. as a package deal to
TOMY for over $31 million, while retaining an ownership piece of the TOMY company. compan y. 16.
In 2013, Rebeca Finell launched Finell Co. LLC to develop FINELL® branded
luxury products, including a line of tabletop accessories, serving trays, bowls, and even h andbags. Finell Co. LLC quickly received international design recognition, awards, and the attention of top luxury stores. These products continue to be featured in high-profile high-profile press and movies.
17.
Rebecca Finell invented and designed many FINELL® products made of silicone
because of its strength, flexibility and versatility. For example, FINELL® silicone products include vessels and placemats/runners of different silicone shapes and color s.
18.
Detailed information about FINELL® products is available at www.finell.co.
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