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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF TENNESSEE NASHVILLE DIVISION R & L MERCHANDISE, LLC., d/b/a ) BELLA RYAN, ) ) Plaintiff, ) ) v. ) Civil Action No. ) ALEX AND ANI, LLC., d/b/a ALEX AND ) JUDGE ANI, ) ) JURY TRIAL DEMANDED Defendant. ) DECLARATORY JUDGMENT COMPLAINT Plaintiff R & L Merchandising, LLC, d/b/a Bella Ryann brings this Declaratory Judgment Complaint against defendant Alex & Ani, LLC, d/b/a Alex & Ani. This Declaratory Judgment Complaint relates to R & L Merchandising, LLC’s current efforts to resolve ongoing disputes between the parties – direct competitors in the field of jewelry – regarding their respective legal rights to manufacture and sell jewelry what is colloquially known as “bangle bracelets.” Specifically, R & L Merchandising, LLC seeks declaratory judgments of patent non-infringement and invalidity with respect to one Alex and Ani, LLC design patent directed to expandable bracelets, and of trade dress non-infringement with respect to a bangle bracelet sold by Alex and Ani, LLC. Plaintiff R & L Merchandising, LLC alleges as follows: NATURE OF THIS ACTION 1. This is an action seeking Declaratory Judgments that United States Patent No. D498,167 (“the ’167 patent”), which is owned by Alex and Ani., LLC, has not been infringed by R & L Merchandising, LLC and/or is invalid and that R & L Merchandising, LLC has not infringed Case 3:12-cv-01081 Document 1 Filed 10/19/12 Page 1 of 8 PageID #: 1

Transcript of 1 - Complaint

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

R & L MERCHANDISE, LLC., d/b/a ) BELLA RYAN, )

) Plaintiff, )

) v. ) Civil Action No.

) ALEX AND ANI, LLC., d/b/a ALEX AND ) JUDGE ANI, ) ) JURY TRIAL DEMANDED Defendant. )

DECLARATORY JUDGMENT COMPLAINT

Plaintiff R & L Merchandising, LLC, d/b/a Bella Ryann brings this Declaratory Judgment

Complaint against defendant Alex & Ani, LLC, d/b/a Alex & Ani. This Declaratory Judgment

Complaint relates to R & L Merchandising, LLC’s current efforts to resolve ongoing disputes

between the parties – direct competitors in the field of jewelry – regarding their respective legal

rights to manufacture and sell jewelry what is colloquially known as “bangle bracelets.”

Specifically, R & L Merchandising, LLC seeks declaratory judgments of patent non-infringement

and invalidity with respect to one Alex and Ani, LLC design patent directed to expandable

bracelets, and of trade dress non-infringement with respect to a bangle bracelet sold by Alex and

Ani, LLC. Plaintiff R & L Merchandising, LLC alleges as follows:

NATURE OF THIS ACTION

1. This is an action seeking Declaratory Judgments that United States Patent No.

D498,167 (“the ’167 patent”), which is owned by Alex and Ani., LLC, has not been infringed by R

& L Merchandising, LLC and/or is invalid and that R & L Merchandising, LLC has not infringed

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any rights of Alex and Ani, LLC arising under section 43(a) of the Lanham Act.

2. This action arises under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and

2202, the Patent Laws of the United States, Title 35 of the United States Code, and Section 43(a)

of the Lanham Act.

3. R & L Merchandising, LLC, d/b/a Bella Ryann, (“R & L” or “Plaintiff”) is a

limited liability corporation organized and existing under the laws of the state of Tennessee, with

its principal place of business located in Davidson County, Tennessee.

4. R & L manufactures and sells expandable bracelets with attached charms.

5. On information and belief, Alex & Ani, LLC, (“Alex & Ani” or “Defendant”) is an

LLC organized and existing under the laws of the state of Rhode Island. Its registered agent for

service of process is Michael F. Sweeney, Esq., One Financial Plaza, Suite 1800, Providence, RI

02903.

6. Alex & Ani and R & L manufacture and sell bangle bracelets. Alex & Ani and R &

L have an ongoing dispute regarding their respective legal rights to manufacture and sell bangle

bracelets. Alex & Ani has indicated to R & L that Alex & Ani believes R & L is infringing its

bangle bracelet design. R & L seeks to resolve the parties’ current disputes regarding bangle

bracelets and thus R & L brings this declaratory judgment action, in which R & L seeks a

declaration that the patents have not been infringed by R & L and/or are invalid.

JURISDICTION AND VENUE

7. This Court has jurisdiction over the subject matter of this action pursuant to 28

U.S.C. §§ 1331, 1338(a), 2201 and 2202.

8. This action is filed to resolve an actual and justiciable controversy between the

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parties hereto. Alex & Ani’s conduct towards R & L establishes that a real and substantial dispute

exists between the parties regarding Alex & Ani’s allegations that R & L’s product infringes the

‘167 patent and Alex & Ani’s trade dress rights. This dispute is both definite and concrete and

admits of specific relief through a decree of a conclusive character. As set forth in succeeding

paragraphs herein, Alex & Ani has taken at least one affirmative act related to enforcement of its

patent and trade secret rights, and R & L is currently engaged in offering for sale a bracelet

alleged by Alex & Ani to infringe those rights. Accordingly there is a conflict of asserted rights

among the parties and an actual controversy exists between R & L and Alex & Ani with respect to

the infringement, validity, and scope of the ‘167 patent and of Alex & Ani’s trade dress rights.

9. This Court has personal jurisdiction over Alex & Ani because it has purposely

directed its activities at the State of Tennessee and purposely availed itself of the benefits and

protections of the laws of this State, including this Judicial District, by repeatedly directing

correspondence to R & L alleging that bracelets currently being offered for sale by R & L infringe

Alex & Ani’s patent and trade dress rights. Further, the Alex & Ani correspondence not only

threatened litigation, but also demanded payment of $150,000, surrender of all R & L bracelets for

destruction, and ordered R & L to preserve allegedly relevant documents in eight specific

categories in anticipation of litigation.

10. This Court also has personal jurisdiction over Alex & Ani because Alex & Ani’s

contacts with the State of Tennessee are significant and pervasive. The State of Tennessee is a

large and important market for the sale of Alex & Ani’s products. Alex & Ani has sales

representatives, dealers, and distributors located in the State of Tennessee that market, promote,

and sell Alex & Ani’s products. Alex & Ani has conducted business continuously and

systematically in the State of Tennessee and in this judicial district for many years and continues

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to conduct that business actively today.

11. Venue is proper in this Court under 28 U.S.C. § 1391(c) because Alex & Ani is

subject to personal jurisdiction in Tennessee, and thus is deemed to reside in Tennessee for

purposes of venue.

12. Venue may also be proper under 28 U.S.C. § 1391(b) inasmuch as a substantial

part of the events giving rise to Alex & Ani’s allegations of patent and trade dress infringement

took place in this judicial district. That is, R & L is based in Tennessee, and records pertinent to

any alleged infringement by the Accused Products are in Tennessee, as are pertinent witnesses

relative to R & L’s alleged infringement.

FACTUAL BACKGROUND

13. R & L designs, manufactures, and sells bangle bracelet products in the United

States and elsewhere.

14. Alex & Ani designs, manufactures, and sells bangle bracelet products in the United

States and elsewhere.

15. Alex & Ani is the owner of the D498,167 patent, entitled “Expandable Wire

Bracelet,” which issued on November 9, 2004. A true and correct copy of the D498,167 patent is

attached hereto as Exhibit A.

16. On October 17, 2012, Alex & Ani, through its attorney, served a cease and desist

letter via email on R & L. Alex & Ani’s Communications to R & L regarding the ‘167 patent

stating that R & L’s bangle bracelet infringed the ‘167 patent and threatened to bring suit in the

Southern District of New York unless R & L surrendered its “infringing” product and paid a

substantial monetary fee. A copy of this correspondence is attached as Exhibit B.

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17. On October 18, 2012, Alex & Ani’s attorney served another cease and desist letter

via email. A copy of this correspondence is attached as Exhibit C.

18. On information and belief, if this action is dismissed for lack of subject matter

jurisdiction, Alex & Ani will sue R & L for infringement of the ‘167 patent in a separate action in

another court.

19. By virtue of all the foregoing circumstances, including but not limited to the

statements and actions of Alex & Ani, an immediate, real, and justiciable controversy exists

between Alex & Ani and R & L over the validity and R & L’s alleged infringement of the ‘167

patent and of Alex & Ani’s alleged trade dress rights.

20. Under all the circumstances alleged herein, a substantial controversy exists

between Alex & Ani and R & L of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment regarding the parties’ adverse legal interests with respect to Alex & Ani’s

U.S. Patent D498,167 and Alex & Ani’s alleged trade dress rights.

21. The Court may and should exercise its broad discretion to adjudicate this action

under the Declaratory Judgment Act. There is no better or more effective remedy or forum for

resolving the present controversies between the parties regarding bangle bracelets. Such

adjudication will serve the underlying purposes of the Declaratory Judgment Act by resolving

legal disputes between Alex & Ani and R & L regarding their respective legal rights to

manufacture and sell bangle bracelets. These disputes should be resolved efficiently and

economically in this action, deciding the controversies between the parties with certainty,

completeness and finality.

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COUNT I DECLARATORY JUDGMENT OF NONINFRINGEMENT OF THE ‘167 PATENT

22. R & L realleges and incorporates by reference the averments pled in the preceding

paragraphs of this Complaint.

23. An actual and justiciable controversy exists between R & L and Alex & Ani

regarding the alleged infringement of the ‘167 patent by R & L’s manufacture and sales of bangle

bracelets.

24. R & L’s bangle bracelet products do not infringe, literally or under the doctrine of

equivalents, any valid claim of the ‘167 patent.

25. R & L is not infringing, and has never infringed, any valid claim of the ‘167 patent,

either directly or indirectly, either literally or under the doctrine of equivalents.

26. R & L is entitled to judgment declaring that it has never infringed and is not

infringing any valid claim of the ‘167 patent.

COUNT II DECLARATORY JUDGMENT OF INVALIDITY OF THE ‘167 PATENT

27. R & L realleges and incorporates by reference the averments pled in the preceding

paragraphs of this Complaint.

28. An actual and justiciable controversy exists between R & L and Alex & Ani

regarding the invalidity of the ‘167 patent under 35 U.S.C. §§ 102, 103, 112 and/or 251.

29. The ‘167 is invalid under 35 U.S.C. §§ 102, 103, 112 and/or 251.

30. R & L is entitled to judgment declaring that U.S. Patent D498,167 is invalid.

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COUNT III DECLARATORY JUDGMENT OF TRADE DRESS NON-INFRINGEMENT

31. R & L realleges and incorporates by reference the averments pled in the preceding

paragraphs of this Complaint.

32. R & L has not and is not committing any acts of trade dress infringement.

COUNT IV DECLARATORY JUDGMENT OF TRADE DRESS INVALIDITY

33. R & L realleges and incorporates by reference the averments pled in the preceding

paragraphs of this Complaint.

34. Alex & Ani’s claim of trade dress is invalid.

35. The design that Alex & Ani purports to have claimed as its trade dress is vague, is

lacking in inherent distinctiveness, depends on features that are generic and commonly used, as

well as elements that are functional and used to compete in its particular market and do not

indicate they come from a common source with others and are not likely to confuse consumers as

to their origin and have not and are unlikely to develop secondary meaning.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for entry of judgment as follows:

1. That the Defendant, together with all of its officers, agents, servants, employees,

representatives, and attorneys, and all persons in active concert or participation with any of them

be forthwith preliminarily and thereafter permanently enjoined and restrained from contacting

dealers whom Plaintiff has a business relationship and alleging that Plaintiff has infringed

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Defendant's patents and/or trade dress;

2. That the Court declare that Plaintiff has not infringed and is not infringing U.S.

Patent 0498,167;

3. That the Court declare that U.S. Patent D498,167 is invalid;

4. That the Court declare that Plaintiff has not infringed Defendant's claimed trade

dress;

5. That the Court award Plaintiff attorneys' fees and costs incurred in this action; and

6. For any such other and further relief as this Court deems just and proper.

7. Declaring Plaintiff is free to make, sell and distribute its bangle bracelets.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, R & L demands a trial by

jury of any and all issues on which a trial by jury is available under applicable law.

8

Respectfully submitted,

Randall W. Burton, No. 15393 144 Second Avenue North, Suite 212 Nashville, Tennessee 37201 (615) 620-5838 Attorney for Plaintiff

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EXHIBIT 1

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I IIIII 1111111111111111111111111111111111111111111 11111111111 USOOD498167S

(12) United States Design Patent (lo) Patent No.: US D498,167 S ** Nov. 9, 2004 Ferlise (45) Date of Patent:

(54) EXPANDABLE WIRE BRACELET

(76) Inventor: Carolyn Rafaelian Ferlise, 41 Highgate Rd., Cranston, RI (US) 02920

(**) Term: 14 Years

(21) Appl. No.: 29/194,053

(22) Filed: Nov. 19, 2003

Related U.S. Application Data

(62) Division of application No. 29/181,844, filed on May 16, 2003, now Pat. No. Des. 487,709.

(51) LOC (7) Cl. .................................................... 11-01 (52) U.S. Cl. .......................................................... Dll/5 (58) Field of Search .......................... Dll/1-15, 18-20,

(56)

Dll/22-25, 93; 59/79.1, 79.3, 78, 83; 63/3-4, 9,21, 38

References Cited

U.S. PATENT DOCUMENTS

428,339 A * 5/1890 Howard ... .. ... ... ... ... ... .. ... 63/11 D69,012 S * 12/1925 Dalin .......................... Dll/30

D247,102 S * 1!1978 Durante ........................ Dll/5 5,247,814 A * 9/1993 McDonald .................... 63/3.2

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D472,177 S * 3/2003 McCullough-McPherson Dll/4

* cited by examiner

Primary Examiner-Louis S. Zarfas Assistant Examiner-John Windmuller (74) Attorney, Agent, or Firm-Linda M. Buckley; Christine C. O'Day; Edwards & Angell, LLP

(57) CLAIM

The ornamental design for an expandable wire bracelet, as shown and described.

DESCRIPTION

FIG. 1 is a perspective view of an expandable wire bracelet, showing my new design; FIG. 2 is a top plan view thereof; FIG. 3 is a bottom view thereof; FIG. 4 is a left side view thereof; FIG. 5 is a right side view thereof; FIG. 6 is a rear view thereof; and, FIG. 7 is a front view thereof. The subject matter depicted in dashed lines in FIGS. 1-7 is shown for illustrative purposes only and forms no part of the claimed design.

1 Claim, 7 Drawing Sheets

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EXHIBIT 1

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U.S. Patent Nov. 9, 2004

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EXHIBIT 1

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EXHIBIT 1

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EXHIBIT 1

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EXHIBIT 1

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U.S. Patent Nov. 9, 2004

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EXHIBIT 1

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U.S. Patent Nov. 9, 2004 Sheet 6 of 7 US D498,167 S

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EXHIBIT 1

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420 Lexington Avenue

Suite 2743

New York, New York 10170

Phone: 212.300.5358

Fax: 888.265.7054

www.garbarinilaw.com

VIA E-MAIL to [email protected]

AND FEDERAL EXPRESS

Randa Isa Reep

Bella Ryann

7348 Charlotte Pike

Nashville, TN37209

Re: Alex and Ani, LLC v. Bella Ryann

Ms. Reep:

Our firm has been retained by Alex and Ani, LLC to enforce its intellectual property

rights to a particular design of bangle bracelet covered by U.S. Patent No. D498,167 and

associated trade dress rights in its signature bangle bracelet (see Attachment 1).

You, along with Bella Ryann (collectively “You”) have imported, manufactured, sold,

and offered for sale at least one infringing style of bangle bracelet (see “Accused Bangles,”

Attachment 2) without authorization or license. This infringes Alex and Ani's intellectual

property rights under 35 U.S.C. § 271 and Section 43(a) of the Lanham Act.

Alex and Ani demands that Bella Ryann immediately cease and desist from any further

importation, sale, or offer for sale of infringing bangle bracelets. Moreover, Alex and Ani

demands that any infringing bangle bracelets in Bella Ryann’s possession be delivered to the

above law firm for permanent disposal.

Patent Claims

You have infringed, and are continuing to infringe, the '167 patent directly and by

inducement, by making, using, importing, selling, and offering for sale infringing bangle

bracelets in the United States. Under the patent laws of the United States, Alex and Ani has the

right to certain remedies for the infringement. These remedies include money damages adequate

to compensate for the infringement but in no event less than a reasonable royalty under 35

U.S.C. § 284. Moreover, it is believed that Bella Ryann’s infringement has been willful,

entitling Alex and Ani to treble damages and its attorneys’ fees.

EXHIBIT 2

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Garbarini FitzGerald P.C.

Page 2

Trade Dress Claims

You have infringed, and are continuing to infringe, Alex and Ani's trade dress rights in its

signature bangle bracelet in violation of Section 43(a) of the Lanham Act by essentially

duplicating the overall appearance of the bracelet including its size, shape, wire gauge, etc. Your

direct copying of the charms, style and layout has created actual confusion in the marketplace.

You have clearly and deliberately attempted to copy the marketing, tags, even the use of charm

layout in order to capitalize on the renown of Alex and Ani. Under the Lanham Act, Alex and

Ani is entitled to money damages for the infringement including all profits made by the sale of

infringing bangle bracelets.

Demand

As a compromise and settlement of this dispute prior to litigation being filed, Alex and

Ani demands $150,000, surrender of all infringing bangle bracelets for destruction, and an

undertaking by Bella Ryann that it will not infringe Alex and Ani's intellectual property rights in

the future. Should we be unable to adequately resolve this matter, we will be filing a complaint

in the United States Federal Court for the Southern District of New York on October 23, 2012.

In the meantime, You must retain, maintain, and preserve all relevant documents and

things including electronically stored information (such as e-mail) in their original condition,

relevant to:

The Accused Bangles and charms.

Any similar bangle and/or charms.

Wright Chicken Farm.

B.L. Rogers.

Don Mar Associates.

Alex and Ani, LLC.

Northeast Market Center.

All sales of the Accused Bangles.

If You are unwilling, or unable, to comply with the forgoing, please inform us

immediately so we may take appropriate measures. Failure to preserve may constitute spoliation

of evidence. I can be reached at 212.300.5358, should you wish to discuss this matter.

GARBARINI FITZGERALD P.C.

By: __________________________

Richard M. Garbarini

Encls.

EXHIBIT 2

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-------- Original Message -------- Subject: Alex and Ani adv. Bella Ryan From: "Richard Garbarini" <[email protected]> Date: Thu, October 18, 2012 1:09 pm To: [email protected] Cc: "Trisha Desrosiers" <[email protected]>, "Thomas FitzGerald" <[email protected]>

Ms. Reep: Attached are the complete exhibits you should have recieved today via Federal Express. We, regrettably, have been afforded a very short time-frame to resolve this matter, or file in the Federal Court for the Southrn District of New York; which will do by Tuesday, October 23, 2012. If you have any interest in attempting to resolve this pre-litigation, we have to talk by tomorrow. I am sure we can reach an amicable soluton, but I cannot stress enough, that the window of opportunity to do so is very short. Richard M. Garbarini, Esq. GARBARINI FITZGERALD P.C. 420 Lexington Avenue The Graybar Building Suite 2743 New York, NY 10170 Office : 212.300.5358 Direct Line : 212.252.2281 Fax : 888.265.7054 www.garbarinilaw.com certa bonum certamen CONFIDENTIALITY NOTE -- THIS E-MAIL TRANSMISSION IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL OR EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this transmission is NOT the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the GARBARINI FITZGERALD immediately by telephone at 212.300.5358 and delete this message from your system.

EXHIBIT 3

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<!o.JS 44 (Rev. 12/07) CIVIL COVER SHEET 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 ofmitiating the civil docket sheet. {SEE JNSTRUCfJONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

R&L Merchandising, LLC

(b) County of Residence of First Listed Plaintiff Davidson Cty, TN (EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorney's (Finn Name, Address, and Telephone Nul)lber)

DEFENDANTS

Alex and Ani, LLC

County of Residence of First Listed Defendant Providence Cty, Rl (IN U.S . PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND JNVOL VED.

Attorneys (!fKnown)

Randall W. Burton, Attorney at Law, 144 Second Ave., N. Ste. 212 Nashville TN 37201 615 620-5838

II. BASIS OF JURISDICTION (Place an "X" inOneBoxOnly) III. CITIZENSHIP OF PRINCIPAL PARTIES(Piace an "X" in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant)

1!!1 3 Federa!Question PTF DEF PTF DEF 0 I U.S . Government Plaintiff (U.S. Government Not a Party) Citizen of This State 0 I 0 1 Incorporated or Principal Place 0 4 0 4

0 2 U.S. Government Defendant

0 II 0 Insurance 0 120 Marine 0 130 Miller Act 0 140 Negotiable Instrument 0 150 Recovery of Overpayment

& Enforcement of 0 151 Medicare Act 0 152 Recovery of Defaulted

Student Loans (ExcL Veterans)

0 153 Recovery of Overpayment ofVeteran's Benefits

0 160 Stockholders' Suits 0 190 Other Contract 0 195 Contract Product Liability

0 4 Diversity

(Indicate Citizenship of Parties in Item III)

310 Airplane 315 Airplane Product

Liability 320 Assault, Libel &

Slander 330 Federal Employers'

Liability 340 Marine 345 Marine Product

Liability 350 Motor Vehicle 355 Motor Vehicle

PERSONAL INJURY 0 362 Personal Injury -

Med. Malpractice 0 365 Personal Injury -

Product Liability 0 368 Asbestos Personal

Injury Product Liability

PERSONAL PROPERTY 0 370 Other Fraud 0 371 Truth in Lending 0 380 Other Personal

Property Damage 0 385 Property Damage

Product Liability

Citizen of Another State

610 Agriculture 0 620 Other Food & Drug 0 625 Drug Related Seizure

of Property 21 USC 881 0 630 Liquor Laws 0 640 R.R. & Truck

Act 0 720 Labor/Mgmt. Relations 0 730 Labor/Mgmt.Reporting

& Disclosure Act

fj~~iij-!'m!Iiilll!ll·~~--fiiimil!li·IJ~--~§imm~~-0 740 Railway Labor Act 441 Voting 510 Motions to Vacate 0 790 Other Labor Litigation

0 220 Foreclosure 0 230 Rent Lease & Ejectment 0 240 Torts to Land 0 245 Tort Product Liability 0 290 All Other Real Property

442 Employment Sentence 0 791 Empl. Ret.lnc. 443 Housing! Habeas Corpus: Security Act

· Accommodations 530 General 0 444 Welfare 535 Death Penalty 0 445 Amer. w/Disabilities- 540 Mandamus & Other

Employment 550 Civil Rights 0 446 Amer. w/Disabilities- 555 Prison Condition

Other .440 Other Civil Rights

0 463 Habeas Corpus -Alien Detainee

· 465 Other Immigration Actions

of Business In This State

0 2 0 2 Incorporated and Principal Place of Business In Another State

0 5 0 5

0 3 0 3 Foreign Nation

0 422 Appeal 28 USC 158 0 423 Withdrawal

28 usc 157

'' £~..,• '.....t L ~

870 Taxes (U.S. Plaintiff or Defendant)

871 IRS-Third Party 26 usc 7609

0 6 0 6

400 State Reapportionment 410 Antitrust

0 430 Banks and Banking 0 450 Commerce 0 460 Deportation 0 470 Racketeer Influenced and

Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities!

Exchange 875 Customer Challenge

12USC3410 890 Other Statutory Actions 891 Agricu.Jtural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of!nfonnation

Act 900Appeal of Fee Detennination

Under Equal Access to Justice

950 Constitutionality of State Statutes

V. ORIGIN !Sll Original

Proceeding

(Place an "X" in One Box Only) 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict

Appellate Court Reopened a~o~~if dJstnct Litigation 0 7

Appeal to District Judge from Magistrate State Court Jud ment

c8eJgrJMt~~ilJJ~~frf&~1 ~~\;h:l§u!Y§~i~emfo"r\'tt!Wr~Wl:f~a'l;t~'t:f'D~~ss diversity): VI. CAUSE OF ACTION t:B::-r::-ie-::-fd":"e-sc-r::-ip-:ti-on;...o-:f:-c-au...:;;s_e:----------------------...... ,......-----------­

Declaratory. action seeking patent and tr~de dress declared invalid Vll. REQUESTED IN

COMPLAINT:

0 CHECK IF THIS IS A CLASS ACTION DEMAND$ CHECK YES only if demanded in complaint:

UNDER F.R.C.·P. 23 JURY DEMAND: li1l' Yes 0 No

VIII. RELATED CASE(S)

IF ANY

DATE

10/19/2012 FOR OFFICE. USE ONLY

RECEIPT# AMOUNT

(See instructions): JUDGE

APPLYING IFP ----- ------

DOCKET NUMBER

JUDGE MAG. JUDGE ------- ------ ------"-----

Page 21: 1 - Complaint

Case 3:12-cv-01081 Document 1-5 Filed 10/19/12 Page 1 of 1 PageID #: 21

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURT

R&L Merchandising, LLC

Plaintiff

v. Alex and Ani, LLC

for the

Middle District of Tennessee

) ) ) ) ) )

Civil Action No.

SUMMONS IN A CIVIL ACTION

To: (Defendant's name and address) Alex and Ani, LLC

12

C/0 Michael F. Sweeney, Esq., Registered Agent for Service of Process One Financial Plaza, Suite 1800 Providence, Rl 03903

A lawsuit has been filed against you.

1081

Within 21 days after service of this summons on you (not counting the day you received it)- or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)- you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiffs attorney, whose name and address are: Randall W. Burton

Attorney at Law 144 Second Ave., N. Ste. 212 Nashville, TN 37201

If you fail to respond. judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

KEITH THROCKMORTON CLERK OF COURT~ .

Date:

OCT 1 9 2012 Signature of Clerk or Deputy Clerk