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Jeffrey S. Kravitz (SBN 66481)
Lena N. Bacani (SBN 213556)
FOX ROTHSCHILD
LLP
1055 W. 7th Street, Suite 1880
Los Angeles, CA 90017-2544
Telephone: 213.624.6560 I Facsimile: 213.622.1154
Attorneys for Plaintiffs WhatRU Holding, LLC
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
Case No.: 2:14-CV-05187-BRO-
PLA
AMENDED COMPLAINT FOR:
1.
PATENT INFRINGEMENT (35
U.S.C. 271 AND 281)
2.
COPYRIGHT INFRINGEMENT
17 U.S.C. 101,
et seq.
3.
TRADE DRESS INFRINGMENT
4.
TRADE DRESS
DI
LUTION
AND FEDERAL UNFAIR
COMPETITION 15
U.S.C.
WHATRU HOLDING, LLC,
a Minnesota limited liability company,
Plaintiff,
vs
BOUNCING ANGELS, INC., a
California corporation, EZ
INFLATABLES, INC. a California
corporation, and DOES 1-10 inclusive,
Defendants.
Case 2:14-cv-05187-BRO-PLA Document 91 Filed 09/18/14 Page 1 of 47 Page ID #:647
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Plaintiff WhatRU Holding, LLC ( WhatRU Holding ), for its Complaint
against Defendants Bouncing Angels, Inc., EZ Inflatables, Inc. and DOES 1 to 10
(collectively, Defendants ), alleges and states as follows:
N TURE OF THE CTION
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This is an action for patent infringement under the patent laws of the
United States, 35 U.S.C. 1, et seq.
including 35 U.S.C. 271 and 281; for
copyright infringement under the Copyright Act of 1976, 17 U.S.C. 101,
et seq.;
for
trade dress infringement, federal unfair competition and false designation of origin
under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a); and for the related unfair
competition claim under the laws of the State of California, Cal. Bus. & Prof. Code
17200,
et seq. The claims arise out of Defendants' actions with respect to certain
inflatable bouncer products, as more fully described herein, owned, patented, and
copyrighted by Plaintiff and which contain Plaintiff's valuable trade dress.
JURISDICTION ND VENUE
2.
This Court has original subject matter jurisdiction over the claims in this
action that relate to patent infringement, trade dress infringement, false designation of
origin and federal unfair competition pursuant to 35 U.S.C. 271 and 281, 28 U.S.C.
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THE P RTIES
5.
Plaintiff WhatRU Holding, LLC ( WhatRU ) is a Minnesota limited
liability company organized and existing under the laws of the State of Minnesota, and
maintains its principal place of business at 10665 Alameda Avenue in Inver Grove
Heights, MN 55077. WhatRU Holding designs original inflatables, including
bouncers and other party accessories. WhatRU Holding is the sole and exclusive
assignee of a utility patent in an inflatable bouncer, as defined below, and the owner
and licensor of copyrights in two inflatable sculptures entitled Carousel Bouncer
and Fire Truck Bus as further defined below.
6.
Defendant Bouncing Angels, Inc. is a corporation organized and existing
under the laws of the State of California, and maintains its principal place of business
at 895 North Todd Avenue, Azusa, CA 91702. Defendant does business in this
District and holds itself out as a manufacturer of inflatable party supplies, including
bouncers, covered under the patent-in-suit and/or copyrights owned by Plaintiff.
7.
Defendant EZ Inflatables, Inc. is a corporation organized and existing
under the laws of the State of California, and maintains its principal place of business
at the same address as Defendant Bouncing Angels, which is at 895 North Todd
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The '608 PATENT
9.
On October 30, 2003, inventors Robert Field and Brian Field filed a
patent application in the United States Patent and Trademark Office ( USPTO )
covering a novel inflatable bouncer. In response, the USPTO issued U.S. Patent No.
7,108,608 (the '608 Patent ). A true and correct copy of the '608 Patent is attached
hereto as Exhibit A and by reference is made a part hereof.
10.
WhatRU Holding is the owner by assignment of all legal rights, title, and
interest in, to, and under the '608 Patent, including the right to bring the suit for
damages and injunctive relief for infringement thereof.
WHATRU HOLDING'S COPYRIGHTS
THE '471 COPYRIGHT
11.
Since 1996, Robert and Brian Field have endeavored to create unique and
original inflatable bouncers and party accessories. They started a company to sell
their unique creations, called Cutting Edge Creations, Inc.
12. In 2002, Cutting Edge Creations, Inc. ( Cutting Edge ) completed an
original work of an inflatable sculpture entitled Carousel Bouncer, and first
published said work in the United States on November 20, 2002.
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16.
On September 28, 2010, WhatRU Holding, LLC, a company formed by
Robert and Brian Field, purchased the '471 Copyright and all legal rights thereto.
17.
WhatRU Holding is the owner of the '471 Copyright, and was and
continues to be the owner of all legal rights, title, and interest in, to, and under the
`471 Copyright.
THE 909 COPYRIGHT
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8. In 2008, Cutting Edge completed an original work of an inflatable
8 sculpture entitled Fire Truck Bus, and first published said work in the United States
9 on November 15, 2008.
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9. Fire Truck Bus consists of an inflatable sculpture which is shaped to
11 resemble a fire truck.
12
0. Fire Truck Bus has been registered with the United States Copyright
13 Office as Copyright Registration No. VA-1-835-909 (the '909 Copyright ), having
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n effective date of registration of October 31, 2012. A true and correct copy of the
15 909 Copyright is attached hereto, marked as Exhibit C and by reference is made a
16 part hereof.
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1. WhatRU Holding is the owner of the '909 Copyright, and was and
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24.
The IAAPA's legal department subsequently forced Defendants to
remove the image of their Carousel product from their catalog. While Defendants did,
in fact remove the image of the Carousel for a time, Defendants began to again hand
out catalogs that included the Carousel the last two days of the IAAPA show. The
IAAPA informed WhatRU Holding that they would issue sanctions against
Defendants for their willful infringement of WhatRU Holdings' copyrights, but
WhatRU Holding has never received notice that such sanctions were actually levied.
25.
At no time has WhatRU Holding authorized Defendants to offer for sale,
sell, use, and/or import or to make the invention protected by the '608 Patent.
26.
At no time has WhatRU Holding authorized Defendants to sell, adapt,
distribute, reproduce, or display and import into the United States the works which are
the subject of the '471 and '909 Copyrights.
27.
Defendants, through their agents, employees, or representatives, have and
continue to, intentionally and willfully infringe the '608 Patent and '471 Copyright by
directly or indirectly making, using, offering for sale, selling, and distributing in
interstate commerce certain products, such as that identified as Carousel Jumper
(Model No. B101 . Photographic depictions of these products are attached hereto,
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and are presently offering for sale, selling, and distributing these products on their on-
line websites at www.bouncingangels.com
and www.ez-inflatables.com
29.
Upon information and belief, Defendants are presently offering for sale,
selling, and distributing these products, either directly or indirectly, on other websites.
FIRST CLAIM FOR RELIEF
INFRINGEMENT OF THE 608 PATENT
30.
WhatRU Holding realleges and incorporates by reference all of the
preceding paragraphs of this Complaint as though fully set forth herein.
31.
Defendants, through their agents, employees and representatives, have
infringed and continue to infringe at least Claim 1 of the '608 Patent (Exhibit A) in
violation of 35 U.S.C. 271(a) by at least directly and/or indirectly making, using,
selling, offering for sale, and/or importing an inflatable bouncer called the Carousel
Jumper (Model No.
B101)
(Exhibits D and E) as claimed in the '608 Patent.
32.
Defendants have induced, caused, and/or contributed to the infringement
of the '608 Patent by contributing to or inducing others to make, sell, offer for sale, or
import into the United States inflatable bouncers covered by the '608 Patent in
violation of 35 U.S.C. 271(b) and (c).
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36. Pursuant to 35 U.S.C. 284, WhatRU Holding is entitled to damages for
Defendants' infringing acts and treble damages together with interests and costs as
fixed by this Court.
37.
Pursuant to 35 U.S.C. 285, this action qualifies as an exceptional case
and WhatRU Holding is entitled to reasonable attorneys' fees for the necessity of
bringing this claim.
38.
Due to the aforesaid infringing acts, WhatRU Holding has suffered great
and irreparable injury, for which WhatRU Holding has no adequate remedy at law.
Defendants will continue to infringe the '608 Patent to the great and irreparable injury
of WhatRU Holding, unless enjoined by this Court.
SECOND CL IM FOR RELIEF
COPYRIGHT INFRINGEMENT
39.
WhatRU Holding realleges and incorporates by reference all of the
preceding paragraphs of this Complaint as though fully set forth herein.
40.
Defendants' products identified as Carousel Jumper (Model No. B101)
(Exhibits D and E) are substantially similar to the work copyrighted by the '471
Copyright (Exhibit B) and constitute an unauthorized copy or derivative work thereof.
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U.S.C. 106, 501(a), and 602(a) by distributing, selling, and displaying the
copyrighted works and importing the copyrighted works into the United States.
44.
Defendants have induced, caused, and materially contributed to the
infringement of the 471 and 909 Copyrights in violation of 17 U.S.C. 106 and
501(a) and are, therefore, liable as contributory infringers. Such acts include, but
are not necessarily limited to, Defendants offering to sell, selling, and distributing the
copyrighted works or derivative works thereof to others to offer to sell, distribute and
display.
45.
WhatRU Holding has sustained damages as a direct and proximate result
of Defendants infringing activities and will continue to sustain damages in the future
unless Defendants infringement of the 471 and 909 Copyrights is permanently
enjoined by this Court pursuant to 17 U.S.C. 502.
46.
Defendants infringing activities have damaged WhatRU Holding,
entitling it to actual damages and Defendants profits, or statutory damages, under 17
U. S .C. 504.
47. Defendants infringing activities have been and continue to be knowing,
deliberate, willful, and wanton, and in conscious disregard of WhatRU Holding s
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THIRD CL IM FOR RELIEF
FEDER L TR DE DRESS INFRINGEMENT
(15 U.S.C. 1125(a))
50.
WhatRU Holding realleges and incorporates by reference all of the
preceding paragraphs of this Complaint as though fully set forth herein.
51.
Subsequent to acquisition of secondary meaning by WhatRU Holding's
non-functional trade dress described herein, Defendants developed, manufactured,
imported, advertised, used, and/or sold products that use trade dress substantially and
confusingly similar to WhatRU Holding's non-functional trade dress. Particularly,
Defendants' Carousel Jumper (Model No. B101) (Exhibits D and E) is substantially
similar to the design, image, and overall appearance of WhatRU Holding's Carousel
Bouncer. Defendants' Fire Engine (Model No. B148) (Exhibits F and G) is
substantially similar to the design, image, and overall appearance of WhatRU
Holding's Fire Truck Bus.
52.
Defendants' Carousel Jumper and Fire Engine products identified
herein are directed to the same consumers as WhatRU Holding's Carousel Bouncer
and Fire Truck Bus ( WhatRU Holding's Trade Dress ).
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56.
WhatRU Holding is informed and believes, and thereon alleges, that
Defendants have derived and received, and will continue to derive and receive, gains,
profits and advantages from Defendants trade dress infringement in an amount not
presently known by WhatRU Holding.
57. Defendants, by their above-described actions, have infringed and
continue to infringe the rights of WhatRU Holding in its WhatRU Holding Trade
Dress in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
58.
As a direct and proximate result of Defendants actions constituting trade
dress infringement, WhatRU Holding has suffered, and continues to suffer, great and
irreparable injury, for which WhatRU Holding has no adequate remedy at law.
59. Pursuant to 15 U.S.C. 1117, WhatRU Holding is entitled to damages
for Defendants infringing acts, up to three times actual damages as fixed by this
Court, and its reasonable attorneys fees for the necessity of bringing this claim.
FOURTH CL IM FOR RELIEF
F LSE DESIGN TION OF ORIGIN ND FEDER L UNF IR
COMPETITION
(15 U.S.C. 1125(a))
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violation of 15 U.S.C. 1125(a) and constitutes unfair competition with WhatRU
Holding.
63.
Defendants use of the WhatRU Holding Trade Dress without WhatRU
Holding s consent constitutes a false designation of origin, which in commercial
advertising or promotion, misrepresents the nature, characteristics, qualities, or
geographic origin of Defendants goods or commercial activities in violation of 15
U.S.C. 1125(a) and constitutes unfair competition with WhatRU Holding.
64.
WhatRU Holding has a well-known and established history of designing
and licensing these particular inflatables and party accessories. By engaging in
national advertising via their websites www.bouncingangels.com
and www.ez-
inflatables.com
that reflect products that are outwardly extremely like and similar to
WhatRU Holding s, Defendants create a false impression in a substantial number of
consumers minds that their products are in fact affiliated with, the same as, sponsored
by, manufactured by, or condoned by WhatRU Holding, thereby enhancing the image
of Defendants through this false association.
65.
WhatRU Holding is informed and believes, and thereon alleges, that
Defendants actions were undertaken willfully with full knowledge of the falsity of
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(C)
A judgment that Defendants knowingly and willfully engaged in
infringement of the '608 Patent, and the trebling of damages
pursuant to 35 U.S.C. 284;
(D)
A permanent injunction against Defendants, their officers, agents,
employees, parent, and subsidiary corporations, assigns, successors
in interest, and all those persons in active concert or participation
with them, enjoining them from continued actual infringement of
the '608 Patent;
(E)
A judgment holding this action to be an exceptional case and an
award to WhatRU Holding for its attorneys' fees pursuant to 35
U.S.C. 285;
(F)
A judgment that the '471 and '909 Copyrights are valid and have
been infringed by Defendants;
(G)
A permanent injunction against Defendants, their officers, agents,
employees, parent, and subsidiary corporations, assigns, successors
in interest, and all those persons in active concert or participation
with them, enjoining them from infringing or contributorily
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(iii)
Unfairly competing with WhatRU Holding in any manner
whatsoever;
(iv)
Causing a likelihood of confusion or injuries to WhatRU
Holding s business reputation; or
(P)
A judgment in favor of WhatRU Holding and against Defendants
in an amount equal to damages sustained by WhatRU Holding and
the profits earned by Defendants from the trade dress infringement,
false designation of origin, and unfair competition alleged herein
pursuant to 15 U.S.C. 1117(a);
(Q)
A judgment that Defendants knowingly and willfully engaged in
the infringement of WhatRU Holding s Trade Dress, false
designation of origin and unfair competition, and a trebling of
damages pursuant to 15 U.S.C. 1117(a);
(R)
A judgment holding this action to be an exceptional case and an
award to WhatRU Holding for its attorneys fees and costs
pursuant to 15 U.S.C. 1117(a);
(S)
A judgment in favor of WhatRU Holding and against Defendants
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EM ND FOR JURY TRI L
Plaintiff WHATRU Holding LLC hereby demands a trial by jury on all issues
so triable.
Respectfully submitted
Dated: August 4 2014
OX ROTHSCHILD
LLP
By Jeffrey S. Kravitz
Lena N. Bacani
Attorneys for Plaintiff WhatRU Holding LLC
/s/ Lena Bacani
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0
1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1
(12) Un ited States Patent
lo) Patent N o.: S 7 108 608 B2
Field et a l.
45)
Date of Patent:
ep. 19 2006
(54) INFLATABLE BOUNCER
(75) Inventors: Robert Field, Lakeville, MN (US);
Brian Field, Inver Grove Heights, MN
(US)
(73) Assignee: Cutting Edge Creations, Eagan, MN
(US)
( *
)
otice:
ubject to any disclaimer, the term of this
patent is extended or adjusted under 35
U.S.C. 154(b) by 0 days.
(21) Appl. No.:
10/698 000
(22)
Filed: ct. 30, 2003
(65)
rior Publication Data
US 2005/0107174 Al
ay 19, 2005
(51)
Int. Cl.
A61G 31/00
2006. 01)
(52) U.S. Cl.
472/134; 52/2.11; 482/27
(58) Field of Classification Search
472/134;
52/2.11, 2.17, 2.18, 2.21, 2.22, 2.24; 446/220,
446/221, 223, 225, 226; 482/27-29, 26
See application file for complete search history.
(56)
eferences Cited
U S PATENT DOCUMENTS
2,875,771 A /1959 Brewin 52/2.11
2,946,337 A * 7/1960 Wolshin
52/2.21
4,295,302 A * 10/1981 Liu
52/2.21
5,226,261 A * 7/1993 Wilbourn et al. 52/2.21
5,247,768 A * 9/1993 Russo 52/2.13
5,462,505 A * 10/1995 Blair et al. 482/27
5,471,797 A * 12/1995 Murphy
52/2.17
5,555,679 A * 9/1996 Scherba
52/2.18
5,570,544 A
1/1996 Hale et al.
52/2.18
5,678,357 A * 10 /1997 Rubio et al. 52/2.17
5,772,535 A * 6/1998 Murphy 473/415
5,893,238 A * 4/1999 Peacock et al.
52/2.18
5,987,822 A * 11/1999 McNiff et al.
52/2.11
6,029,404 A * 2/2000 Lewis 52/2.18
6,565,405 Bl * 5/2003 Hsu et al.
446/89
6,679,811 B1*
/2004 Chen
482/29
6,722,084 Bl* 4/2004 Berman 52/2.11
* cited by examiner
Primary ExaminerKien
Nguyen
(74)
Attorney Agent or FirmSchwegman
Lundberg,
Woessner Kluth, P.A.
(57)
BSTRACT
An inflatable bouncer includes an inflatable bottom section,
an inflatable inner column coupled to a center of the bottom
section, and a plurality of inflatable columns around a
periphery of the bottom section. An uninllated roof extends
between the inner column and the outer columns.
7 Claims 4 Drawing Sheets
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U.S. Patent
ep. 19 2006
heet 1 of 4
S 7 108 608 B2
15
ik52
K
1 0 0
R411
V lit
1 1 0
1 2 0 r
IP
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1
1 3
U.S. Patent
ep. 19 2006
heet 2 of 4
S 7 108 608 B2
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U.S. Patent
ep. 19 2006 heet 3 of 4
7 108 608 B2
1 2 Z
---130
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U S Patent
ep. 19 2006
Z O O
: 3 5
2 2 2
2 4 0
0
2:10
- . - - - Z I O
Sheet 4 of 4
S 7 108 608 B2
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US 7,108,608 B2
1
INFLATABLE BOUNCER
FIELD
This invention relates to the field of inflatables, and more 5
specifically to inflatable bouncers.
BACKGROUND
Inflatables, such as inflatable bouncers, are air-inflated
10
devices that are typically used for children s amusement as
well as advertising purposes. Inflatables have been designed
to resemble real-life objects, such as ships, fire trucks, and
animals. Inflatable bouncers include a bottom, inflated
bouncing section. Some bouncers include a roof. However,
15
when designing such bouncers to look like a real-life object,
present designs do not provide for a realistic appearance in
all cases. What is needed is an inflatable bouncer structure
allowing for a roofed-type bouncer having a realistic appear-
ance.
0
SUMMARY
An apparatus comprising an inflatable bouncer having an
uninflated roof with a central portion and a periphery,
25
wherein the uninflated roof is supported in its center portion
by an inflated column.
BRIEF DESCRIPTION OF THE DRAWINGS
30
FIG. 1 shows an inflatable bouncer according to one
embodiment of the inventive subject matter disclosed
herein.
FIG. 2 shows a top view of the inflatable bouncer of FIG.
1.
5
FIG. 3 shows a side view of the inflatable bouncer of FIG.
1.
FIG. 4 shows a side view of an inflatable bouncer accord-
ing to one embodiment of the inventive subject matter
diameter can vary to any desired sized. Various embodi-
ments have a diameter of approximately 15 feet to approxi-
mately 30 feet. Bottom section includes a periphery 112 and
a central area 114.
Inner column 120 is attached to and extends upward from
bottom section 110. In this example, inner column 120 is in
the center of bottom section 110 However, in some embodi-
ments, the inner column is anywhere within the central area
114
of the bottom section. In some embodiments, two or
more inner columns are located in the central area 114. Inner
column
120
is inflatable and can be made of the same
material as the bottom section. In this example, inner
column 120
is approximately 20 feet high and includes a
knob
122 at its peak designed to look like the top of a
carousel.
Outer columns 130
are coupled to bottom section
110
around the periphery of the bottom section. Each of the outer
columns is inflatable and made of the same material as the
bottom section. In one embodiment, eight outer columns are
used and positioned equidistant from each other around the
periphery of the bottom section. Ile outer columns are
shorter than the inner column. In one embodiment, the outer
columns are approximately 10-15 feet high.
Upper inflatable support
140
is an inflatable section
attached to the top of outer columns
130. In this example,
upper support 140 has approximately the same diameter as
bottom section 110
Each of bottom section 110
inner column
120 outer
columns 130 and support 140
are connected together so that
the interiors of the members communicate with each other
so that air blown into the bouncer through the bottom section
inflates each other section.
Roof 150 is an uninflated flexible sheet of material
coupled at its inner portion
152
to inner column 120 and at
its periphery or outer portion
154
to either upper support 140
or to the tops of columns
130.
In this example, to allow
bouncer 100
to better resemble a carousel, roof
150 is
attached to inner column 120 below knob 122 and the roof
then hangs or drapes down and the outer portion
154 is
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C 2 0 8 O 9 il d 09/ 8/ 3 f 6
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Certificate of Registration
This Certificate issued under the seal of the Copyright
Office in accordance with title 17
United States Code
attests that registration has been made for the work
identified below The ink
n this certificate has
been made a part of the Copyright Office records.
Register of Copyrights United States of America
Registration Number
VA 1-835-909
Effective date of
registration:
October 31 2012
Title
Title of Work:
Fire Truck Bus
Completion Publication
Year of Completion:
2008
Date of 1st Publication:
November 15 2008 Nation of 1st Publication: United States
Author
Author:
Whatru Holding LLC
Author Created:
2-D artwork sculpture
Work made for hire:
Yes
Domiciled in:
United States
Copyright claimant
Copyright Claimant:
Whatru Holding LLC
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Fire Truck Bouncer VA 1 835 909
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C 2 14 05187 BRO PLA D t 91 Fil d 09/18/14 P 33 f 47 P ID # 679
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:0
2 1 3 P R O D U C T C A T A L O G
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Ma=
WINIVINE4M4
111=
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l
lid : 11111H
l i n 1 / 1 1 1 1
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Case 2:14 cv 05187 BRO PLA Document 91 Filed 09/18/14 Page 42 of 47 Page ID #:688
Fire Truck Jumper I Bouncing Angels Inflatables - Bouncer Moonwalk and Inflatable U... Page 1 of 2Case 2:14-cv-05187-BRO-PLA Document 91 Filed 09/18/14 Page 43 of 47 Page ID #:689
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HOME PAGE OUR PRODUCTS OUR SPECIA
BOUT OUR COMPANY INFLATABLE RESOURCES CONTACT US
INFLATABLE JUMPERS
INFLATABLE COMBOS
INFLATABLE WATER COMBOS
INFLATABLE INTERACTIVES
INFLATABLE BRANDING
INFLATABLE SLIDES
INFLATABLE WATER SLIDES
INFLATABLE SLIP AND SLIDES
INFLATABLE GAMES
INFLATABLE ACCESSORIES
2 14 CATALOG
Bouncing ngels Home Page I Our Products I Inflatable Jumpers I Fire Truck Jumper
PRODUCT DESCRIPTION:
ITEMS DETAILS:
ITEMS INCLUDES:
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Fire Truck Bouncer VA 1 835 909
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Case c 05 8 O ocu e t 9 ed 09/ 8/ age 5 o age 69
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2 01 4 P D U C T C A T A L O G
g g
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FIRE ENGINE B148
Length:
14
FT Width: 11 FT Height 1 FT
HALLO WEEN JUMPER B185
Length: 13 FT Width:
13
FT Height:
14 FT
Length: 15 FT Width:
15
FT Height:
14 FT
HUMM ER OFF ROAD JUMPER 8162
Length:
19 FT Width:
13 FT Height
11FT
BASKETBALL JUMP ER B187
Length; -
Width:
Height: I . FT
Length' Width; ' -
eight: ' FT
FOOTBALL JUMPER B186
Length: 13 FT
Width: 13
FT Height:
14 FT
Length:
15 FT
Width: 15 FT
Height
14
FT
WESTERN DIGITAL PRINT JUMP ER B169
Length: 15 FT
Width:
15 FT
Height: 14