Akerson Enters. v. Nyssa Care - Complaint

Case 3:23-cv-00492-BEN-MSB Document 1 Filed 03/17/23 PageID.
1 Page 1 of 41
1 Donny K. Samporna (SBN 316456)

[email protected]
2 HALEY GUILIANO LLP
3 2466 Palace Dr.
San Diego, CA 92123
4 Tel: (669) 213-1080 – Fax: (669) 500-7375
5
Brian N. Platt (pro hac vice forthcoming)
6 [email protected]
7 Collin Hansen (pro hac vice forthcoming)
[email protected]
8 WORKMAN NYDEGGER
9 60 East South Temple Suite 1000
Salt Lake City, UT 84111
10
Tel: (801) 533-9800 – Fax: (801) 328-1707
11
12 Attorneys for Plaintiff Akerson
Enterprises, LLC dba Kindred Bravely
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14
IN THE UNITED STATES DISTRICT COURT
15 FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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17
AKERSON ENTERPRISES, LLC dba Case No: '23CV0492 BEN MSB
18 KINDRED BRAVELY,
19 COMPLAINT FOR DECLARATORY
Plaintiff, JUDGMENT OF PATENT NON-
20
INFRINGEMENT, DECLARATORY
21 vs. JUDGMENT OF PATENT
22 INVALIDITY, DECLARATORY
NYSSA CARE, INC. JUDGMENT OF COPYRIGHT NON-
23 INFRINGEMENT, TORTIOUS
Defendant. INTERFERENCE, AND UNFAIR
24
COMPETITION
25
26 JURY TRIAL DEMANDED
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28
ORIGINAL COMPLAINT
Case 3:23-cv-00492-BEN-MSB Document 1 Filed 03/17/23 PageID.2 Page 2 of 41
1 Plaintiff Akerson Enterprises, LLC dba Kindred Bravely (“Kindred

2 Bravely”), for its complaint against Defendant Nyssa Care, Inc. (“Nyssa”), hereby
3 alleges as follows:
4 NATURE OF THE ACTION
5 1. Plaintiff Kindred Bravely brings this action for a declaration that it does
6 not infringe U.S. Design Patent No. D935,735 (the “’D735 Patent,” attached as
7 Exhibit A) and for a declaration that the ’D735 Patent is invalid. In addition, Kindred
8 Bravely seeks a declaration that its product photos and marketing photos do not
9 infringe Nyssa copyrights in its product photos and marketing photos.
10 2. Defendant Nyssa has repeatedly and wrongfully claimed that Kindred
11 Bravely infringes its patent and copyrights. Nyssa made these allegations to Kindred
12 Bravely’s business partners and investors in bad faith and with the intent of harming
13 Kindred Bravely’s California-based business. Accordingly, Kindred Bravely also
14 asserts claims for unfair competition and tortious interference with a contractual
15 relationship.
16 THE PARTIES
17 3. Plaintiff Kindred Bravely is a California limited liability corporation
18 with a principal place of business at 3913 Oceanic Drive Suite 502, Oceanside,
19 California. Kindred Bravely is a women’s apparel company that specializes in
20 comfortable and stylish clothing for pregnant and nursing mothers.
21 4. Defendant Nyssa Care, Inc. is a Delaware corporation with a principal
22 place of business at 3953 W. Armitage, Chicago, Illinois. Nyssa provides clothing
23 and undergarments for women and competes with Kindred Bravely for product sales
24 in the State of California. On information and belief, Nyssa sells the products at issue
25 in this Complaint to customers in the State of California.
26 JURISDICTION AND VENUE
27 5. This is an action for declaratory judgment of patent non-infringement
28 and patent invalidity arising under the patent laws of the United States, 35 U.S.C.
ORIGINAL COMPLAINT
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1 §§ 1 et seq. Plaintiff also seeks declaratory judgment of copyright non-infringement

2 and asserts related claims for tortious interference and unfair competition. This Court
3 has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question); 28 U.S.C.
4 § 1338(a) (patents, copyrights, trademarks); and 28 U.S.C. § 1367 (supplemental
5 jurisdiction).
6 6. This Court has personal jurisdiction over Nyssa because Nyssa has
7 purposefully directed its conduct at Kindred Bravely in California and this District,
8 and expressly targeted the consequences of its actions at Kindred Bravely in
9 California and this District. For example, in an attempt to interfere with the business
10 of Kindred Bravely, Nyssa sent correspondence to Kindred Bravely in this District
11 containing allegations of patent infringement of the ’D735 Patent. See Exhibit B at
12 2-3. In addition, knowing that Kindred Bravely resided in this District, in the same
13 correspondence Nyssa sent allegations that Kindred Bravely infringed the copyright
14 in various photographs of Nyssa products. See Exhibit B at 3-7.
15 7. Nyssa further targeted Kindred Bravely in California with other
16 conduct, expressly aiming the consequences of its actions at Kindred Bravely in
17 California and this District. For example, Nyssa also sent correspondence alleging
18 infringement of the ’D735 Patent, and infringement of copyright in various
19 photographs of Nyssa products, to Kindred Bravely investors in the State of New
20 York. See Exhibit B. Nyssa took such actions against Kindred Bravely in an attempt
21 to gain leverage in settlement negotiations regarding its frivolous claims and
22 intended for its actions to have consequences for Kindred Bravely in California and
23 in this District.
24 8. Nyssa further targeted Kindred Bravely in California by attempting to
25 disable Kindred Bravely’s online website presence in California and elsewhere by
26 submitting the same frivolous allegations of patent infringement of the ’D735 Patent
27 to Shopify, Inc. See Exhibit C. On information and belief, Shopify attorneys and
28 staff are located in the State of California. Nyssa’s interference with Kindred
ORIGINAL COMPLAINT
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1 Bravely’s online website presence caused harm to Kindred Bravely in California,

2 forcing Kindred Bravely to retain outside litigation attorneys and incur expenses in
3 California to respond to Nyssa’s frivolous allegations.
4 9. Nyssa further targeted Kindred Bravely in California by filing online
5 Complaints for patent infringement of the ’D735 Patent with Amazon.com regarding
6 numerous Kindred Bravely Amazon listings (“ASINs”) that are available to
7 customers in California. Nyssa’s interference with Kindred Bravely’s Amazon
8 listings was successful, causing Amazon to disable numerous ASINs for Kindred
9 Bravely products. See Exhibit D. On information and belief, Amazon attorneys and
10 staff are located in the State of California. Nyssa’s interference with Kindred
11 Bravely’s Amazon listings caused harm to Kindred Bravely in the form of lost sales
12 and lost goodwill and forced Kindred Bravely to retain outside litigation attorneys
13 and incur expenses in California to respond to Nyssa’s frivolous allegations.
14 Nyssa’s actions caused decreased sales and adversely impacted Kindred Bravely’s
15 revenues and profits in California.
16 10. Nyssa products that compete with Kindred Bravely are sold through
17 Nyssa’s website and through Amazon. Nyssa makes its products available to
18 California residents. On information and belief, Nyssa ships the same products that
19 are at issue in this litigation directly to customers in the State of California and in
20 this District.
21 11. Through its actions, Nyssa competes unfairly with Kindred Bravely in
22 California in violation of the Unfair Competition Law of California. This Court has
23 personal jurisdiction over Nyssa because it has purposefully directed its conduct at
24 Kindred Bravely in California and this District and has expressly targeted Kindred
25 Bravely in California with the consequences of its wrongful acts with the knowledge
26 and intent that the consequences of such acts would be felt by Kindred Bravely in
27 the State of California.
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ORIGINAL COMPLAINT
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1 12. This Court has federal question jurisdiction under 28 U.S.C. §§ 1331
2 and 1338(a) because this is a civil action arising under the Patent Act. The Court
3 also has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a) because
4 this is a civil action relating to copyright. This Court has subject matter jurisdiction
5 over Kindred Bravely’s declaratory judgment claims pursuant to 28 U.S.C. §§ 2201
6 and 2202 because an immediate and substantial controversy exists between Kindred
7 Bravely and Nyssa with respect to whether Kindred Bravely’s products infringe the
8 ’D735 Patent and whether the ’D735 Patent is invalid.
9 13. This Court has supplemental jurisdiction over Kindred Bravely’s
10 claims of tortious interference and unfair competition under 28 U.S.C. § 1367
11 because those claims relate to the same operative nucleus of fact as Kindred
12 Bravely’s claims for declaratory judgment of non-infringement and invalidity of the
13 ’D735 Patent.
14 14. Venue is proper in this District under the provisions of 28 U.S.C.
15 § 1391(b) because, as noted above, Nyssa is a resident in this judicial district under
16 28 U.S.C. § 1391(c)(2) (“an entity . . . shall be deemed to reside, if a defendant, in
17 any judicial district in which such defendant is subject to the court’s personal
18 jurisdiction . . . .”) and because a substantial part of the events giving rise to the
19 claims in this litigation occurred in this judicial district.
20 BACKGROUND
21 15. Kindred Bravely is a women’s apparel company that specializes in
22 comfortable and stylish clothing for pregnant and nursing mothers. Kindred Bravely
23 was founded in 2015 by Deeanne Akerson, with a mission to provide maternity and
24 nursing clothes that were not only comfortable and functional but also stylish and
25 beautiful.
26 16. Deeanne Akerson’s inspiration for starting Kindred Bravely came from
27 her own experiences as a mother, when she struggled to find clothing that fit well
28 and accommodated her changing body.
ORIGINAL COMPLAINT
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1 17. After giving birth to her second child, Deeanne realized that there was
2 a gap in the market for maternity and nursing clothing that prioritized both comfort
3 and style. She was determined to create a brand that would cater to the needs of new
4 mothers, providing them with clothing that would not only make them feel
5 comfortable and supported but also confident and beautiful.
6 18. With a background in marketing and a deep understanding of the
7 challenges faced by new mothers, Deeanne set out to create a brand that would fill
8 this gap in the market. Through extensive research, she designed Kindred Bravely's
9 first line of products, which quickly gained popularity among expecting and nursing
10 mothers.
11 19. Kindred Bravely has grown and become a leading brand in the
12 maternity and nursing clothing market, known for its high-quality products and
13 commitment to social responsibility.
14 20. In July 2022, Kindred Bravely launched a new line of women’s
15 undergarments designed specifically for postpartum. The new product was called
16 the Fourth Trimester Postpartum Panty (“FTPP”) and featured multiple hot or cold
17 gel packs that could be used with the panty to provide soothing relief to new mothers.
18 The FTPP features three “pockets” that can receive the hot or cold gel packs.
19 21. FTPP products were sold on Amazon.com and on Kindred Bravely’s
20 own website at www.KindredBravely.com. The FTPP product is depicted below:
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ORIGINAL COMPLAINT
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14 https://www.kindredbravely.com/products/
15 soothing-fourth-trimester-panty-with-gel-packs-black
16 22. Defendant Nyssa competes with Kindred Bravely. Nyssa sells products
17 for women including products for postpartum recovery and period comfort.
18 23. Beginning in November 2022, Nyssa began a systematic campaign to
19 interfere with Kindred Bravely sales operations for its FTPP products.
20 24. Nyssa claims ownership of U.S. Design Patent No. D935,735 (the
21 “’D735 Patent”), which claims an ornamental design for a therapeutic undergarment.
22 See Exhibit A.
23 25. Nyssa’s intellectual property claims to online retailers caused
24 interference in Kindred Bravely’s sales operations, including Shopify Inc.
25 (“Shopify”) and Amazon.com, Inc. (“Amazon”).
26 26. Kindred Bravely’s online website www.KindredBravely.com is hosted
27 by the online ecommerce platform Shopify.
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ORIGINAL COMPLAINT
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1 27. On November 15, 2022, Nyssa sent correspondence to Shopify alleging

2 that Kindred Bravely’s FTPP infringed the ’D735 Patent. See Exhibit C.
3 28. Nyssa’s interference with Kindred Bravely’s online website presence
4 caused harm to Kindred Bravely in California, forcing Kindred Bravely to retain
5 outside litigation attorneys and incur expenses in California to respond to Nyssa’s
6 frivolous allegations.
7 29. Although Nyssa sent this correspondence to Shopify, it stated that a
8 copy would be sent to Kindred Bravely in California (see Exhibit C at 2) and
9 intended for the effect of its action to be felt in California and targeted Kindred
10 Bravely in California.
11 30. Kindred Bravely also sells its FTPP products through product listings
12 that are hosted by Amazon.com.
13 31. On or about November 29, 2022, Nyssa filed multiple complaints for
14 patent infringement against several Kindred Bravely Amazon product listings for its
15 FTPP products including ASINs B0B81GK7W5, B0B818YBPF, B0B81C2P2R,
16 B0B8139PTK, and B0B7ZY66CV. See Exhibit D.
17 32. Although Nyssa sent this correspondence to Amazon, it intended for
18 the effect of its action to be felt in California and individually targeted Kindred
19 Bravely in this District.
20 33. Nyssa’s multiple complaints caused Amazon to disable Kindred
21 Bravely’s product listings for its FTPP products listed for sale at ASINs
22 B0B81GK7W5, B0B818YBPF, B0B81C2P2R, B0B8139PTK, and B0B7ZY66CV.
23 This caused financial harm to Kindred Bravely in this District through lost sales and
24 by forcing Kindred Bravely to retain outside litigation attorneys and incur expenses
25 in California and this District to respond to Nyssa’s frivolous allegations.
26 34. On or about December 7, 2022, Nyssa also sought to interfere with
27 Kindred Bravely’s relationship with its investors and sent correspondence outlining
28 frivolous claims of patent and copyright infringement to TZP Group LLC in New
ORIGINAL COMPLAINT
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1 York in December 2022. Although Nyssa sent this correspondence to New York, it
2 intended for the effect of its action to be felt in this District and individually targeted
3 Kindred Bravely in California and this District. See Exhibit B.
4 35. Also on December 7, 2022, Nyssa began directly threatening Kindred
5 Bravely in California with frivolous allegations of patent infringement of the ’D735
6 Patent and of various product-related images of Nyssa products. See Exhibit B.
7 36. Nyssa alleged in its correspondence that the ornamental design of
8 Kindred Bravely’s FTPP product infringed the claimed design of the ’D735 Patent.
9 37. The claimed design of the ’D735 Patent contains only functional
10 aspects which are not entitled to design patent protection. A design patent that
11 contains functional elements is “limited to the ornamental aspects of the design, and
12 does not extend to the broader general design concept.” Ethicon Endo-Surgery, Inc.
13 v. Covidien, Inc., 796 F.3d 1312, 1332 (Fed. Cir. 2015).
14 38. Design patent law “only protects the ornamental aspects of the design.”
15 Oddzon Products, Inc. v. Just Toys, Inc., 122 F.3d 1396, 1404 (Fed. Cir. 1997).
16 Nyssa highlights the functional aspects of the ’D735 Patent in its marketing
17 materials, as shown below.
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Functional Functional Functional
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https://nyssacare.com/products/fourthwear-underwear.
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ORIGINAL COMPLAINT
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1 39. Figure 4 of the ’D735 Patent highlights the functional aspects of

2 Nyssa’s claimed ornamental design:
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Underwear
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Pocket
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12 40. Figure 8 of the ’D735 Patent highlights the functional aspects of
13 Nyssa’s claimed ornamental design:
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15 Functional
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22 41. Nyssa’s marketing materials highlight the functional aspects of Nyssa’s
23 claimed ornamental design for the ’D735 Patent:
24 - “Front opening allows for insertion and placement of an ice/heat pack (any
25 brand, up to 6” wide) over the vaginal/perineal area or a cesarean incision
26 site.”
27 - “Widened gusset keeps oversized maternity pads in place.”
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ORIGINAL COMPLAINT
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1 - “Super stretchy, virtually seamless fabric accommodates changing bodies

2 and provides comfort during a time of heightened sensitivity.”
3 - “belly hugging underwear”
4 - “[s]mooth and seamless in all the right places”
5 - “dual-layer, 360 pocket design to securely hold ice or heat therapy”
6 See Introducing Fourthwear™ Underwear, PRWeb, (“Nyssa PRWeb”) available at
7 https://www.prweb.com/releases/female_led_start_up_launches_
8 nyssa_a_new_wellbeing_company_supporting_women_during_times_of_physical
9 _emotional_transformation/prweb16564096.htm; FourthWear Ice & Heat
10 Postpartum Recovery Underwear, available at
11 https://nyssacare.com/products/fourthwear-underwear. Nyssa also markets its
12 FourthWear Postpartum Recovery Underwear as “functional”:
13 - “Nyssa Fourthwear” is “highly functional, empathetically designed
14 underwear for comfort during the Fourth Trimester.”
15 - “Highly functional, Fourthwear™ is designed to be a harder working,
16 aesthetically pleasing alternative.”
17 - “For vaginal recoveries, FourthWear provides a widened gusset to
18 accommodate large postpartum pads . . . . For c-section recoveries,
19 FourthWear provides the same functionality.”
20 - “[T]he lack of functionality and inadequacy of mesh undies is exactly
21 why Nyssa’s founders created FourthWear.”
22 See Nyssa PRWeb; Nyssa Facebook advertisement, available at:
23 https://www.facebook.com/nyssacare/posts/we-are-so-close-to-launching-nyssa-
24 fourthwear-highly-functional-empathetically-d/644483282734327/; FourthWear
25 Ice & Heat Postpartum Recovery Underwear, available at:
26 https://nyssacare.com/products/fourthwear-underwear/; Postpartum Underwear:
27 What They Are And How To Use Them, available at
28 https://nyssacare.com/blogs/the-loudspeaker/what-are-postpartum-underwear.
ORIGINAL COMPLAINT
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1 42. In a 2020 interview, Eden Laurin, the named co-inventor of the ’D735
2 Patent and Chief Executive Officer and co-founder at Nyssa, stated that Nyssa’s
3 “FourthWear” products fall under their “functional apparel” line. She singled out
4 Nyssa’s “FourthWear Postpartum Recovery Underwear” and emphasized that it “is
5 designed to hold ice and heat packs securely in place after a vaginal or cesarean
6 delivery.” See Kira Bucca, Women’s Health & Sustainability? Hello Nyssa!, Jejune
7 Magazine (Dec. 18, 2020), https://www.jejunemagazine.com/home/nyssa.
8 43. In a 2022 article, Mia Clarke, co-inventor of the ’D735 Patent and Chief
9 Content and Communications Officer and co-founder at Nyssa, wrote that the
10 “FourthWear Postpartum Recovery Underwear” was designed “to ensure that the
11 next wave of people giving birth had access to a more functional and therapeutic
12 option than the free mesh hospital.” See Sara Adm, My vagina tore during delivery.
13 Here’s what I wish I had known before it happened., GWN (Sept. 27,
14 2022), https://goodwordnews.com/my-vagina-tore-during-delivery-heres-what-i-
15 wish-i-had-known-before-it-happened.
16 44. Mia Clarke also hosts an official podcast for Nyssa called “The
17 Unmentionables.” In a 2019 episode, she included an advertisement for
18 “FourthWear Postpartum Recovery Underwear,” stating that it “features a simple
19 but pretty revolutionary function in that it allows you to insert an ice or heat pack
20 through the front opening and keep it secure anywhere within the garment depending
21 on your postpartum recovery needs.” See Nyssa: The Unmentionables: Mothering
22 in the Age of Social Media with Prof. Bethany Johnson & Dr. Margaret Quinlan,
23 Stitcher (October 18, 2019), https://www.stitcher.com/show/nyssa-the-
24 unmentionables/episode/mothering-in-the-age-of-social-media-with-prof-bethany-
25 johnson-dr-margaret-quinlan-64724298 (see time index 0:49).
26 45. In a more recent interview in 2022, Mia Clarke stated that “Fourthwear
27 underwear . . . is inherently functional, right? The fact that you can insert that ice
28 pack into the garment and have it stay in place . . . .” See A Thing or Two with Claire
ORIGINAL COMPLAINT
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1 and Erica: Thingies and “Unmentionables” with Mia Clarke and Eden Laurin of
2 Nyssa, Audacy (Mar. 24, 2022), https://www.audacy.com/podcasts/a-thing-or-two-
3 with-claire-and-erica-55320/thingies-and-unmentionables-with-mia-clarke-and-
4 eden-laurin-of-nyssa-1322955875 (see time index 18:41).
5 46. In a 2019 video interview, Aubrey Howard, listed co-inventor of the
6 ’D735 Patent and Chief Marketing Officer and co-founder at Nyssa, performed a
7 demonstration with the FourthWear Postpartum Recovery Underwear and stated that
8 “the most important and functional part of FourthWear is this slot [referencing the
9 slot in the underwear for inserting ice packs].”
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19 See CBS Chicago: Three Moms Launch Nyssa to Improve Postpartum Care For New
20 Mothers, YouTube (Sept. 20, 2019) https://www.youtube.com/watch?v=Ip3yQHb
21 wqs0 (see time index 1:18).
22 47. In another 2019 interview, Aubrey Howard also stated that “highly
23 functional below-the-belt options designed to provide comfort during postpartum
24 recovery have been non-existent . . . until now,” referring to the FourthWear
25 underwear. See Nyssa PRWeb.
26 48. All three listed co-inventors of the ’D735 Patent, who are also C-Suite
27 executives and co-founders at Nyssa, have repeatedly and publicly claimed that
28 Nyssa’s FourthWear underwear is functional, specifically highlighting the overall
ORIGINAL COMPLAINT
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1 shape, the front slot, and the ability to hold ice and heat packs securely. Nyssa cannot
2 now, in good faith, claim that these aspects are not functional.
3 49. To the extent there are protectable elements of Nyssa’s ’D735 Patent,
4 the ornamental aspects of Kindred Bravely’s FTPP are substantially different from
5 the claimed ornamental design of Nyssa’s ’D735 Patent, as shown below:
6 Kindred Bravely FTPP Figures – ’D735 Patent
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ORIGINAL COMPLAINT
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50. Prior art references disclosing functionality and designs similar to the
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’D735 Patent for therapeutic underwear with a horizontal front opening to access
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and insert a therapeutic hot or cold pack were widely known in the art before the
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filing date of the ’D735 Patent. Examples of such prior art are shown below:
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19 Prior Art Figures – ’D735 Patent
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ORIGINAL COMPLAINT
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US Patent Application Publication
2 US 20050090795 (Filing date Sep 18, 2019)
(Publication date Apr 28, 2005)
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US Patent Application Publication
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US 20080010716 (Filing date Sep 18, 2019)
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Prior Art Figures – ’D735 Patent
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US Patent Application Publication (Filing date Sep 18, 2019)
27 US 20080010716
(Publication date Jan 17, 2018)
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ORIGINAL COMPLAINT
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11 (Filing date Sep 18, 2019)
Snowballs – Cooling underwear for men
12 https://www.snowballsunderwear.com/
(Publication date Aug 1, 2018)
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21 Korean Patent App. No. 20150000806U
22 “Functional ice briefs for men”
(Publication date February 25, 2015)
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(Filing date Sep 18, 2019)
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ORIGINAL COMPLAINT
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12 Taiwan Patent App. No. M445524U1
13 “Postpartum ice pack panties”
(Publication date February 11, 2013)
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Taiwan Patent App. No. M481615U
27 “Disposable ice pack underpants”
(Publication date July 11, 2014)
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ORIGINAL COMPLAINT
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1 51. Nyssa failed to disclose these prior art references to the USPTO when
2 it filed the application for the ’D735 Patent and there is no record that they were ever
3 considered by the examiner.
4 52. Nyssa’s public statements regarding its Fourthwear Underwear
5 similarly fail to acknowledge the significance of prior art products. For example,
6 Nyssa CEO, co-founder, and listed co-patentee of the ’D735 Patent Eden Laurin,
7 stated in an interview that “Fourthwear Underwear . . . is actually the first underwear
8 to exist that holds ice and heat anywhere in the garment.” See How a Gap in the
9 Market Gave Birth to a Movement – Nyssa Fourthwear, Handmade CEO Podcast
10 (May 13, 2020), https://handmadeceo.com/how-a-gap-in-the-market-gave-birth-to-
11 a-movement-nyssa-fourthwear/ (see time index 8:08). This statement is false. A
12 simple internet search for “ice pack underwear” reveals dozens of other underwear
13 products that can hold ice and heat, many of which preceded the FourthWear product
14 (including the prior art results listed above). The ’D735 Patent is invalid in view of
15 these prior art references because a hypothetical ordinary observer would have
16 purchased one supposing it to be the other. See Egyptian Goddess, Inc. v. Swisa,
17 Inc., 543 F.3d 665, 678 (Fed. Cir. 2008).
18 53. Nyssa’s allegations of patent infringement were made in bad faith, both
19 objectively and subjectively. From an objective perspective, no patent owner of the
20 ’D735 Patent could reasonably conclude that the ornamental aspects of the ’D735
21 Patent were infringed by the completely different design of Kindred Bravely’s FTPP
22 product, as depicted below:
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16 54. At the time of its patent assertion, Nyssa knew that the ornamental
17 design of the ’D735 Patent was primarily functional because it had previously filed
18 a utility patent application, published as WO 2020/206122 A1, which claims the
19 alleged functional aspects of the ’D735 Patent (see Exhibit E) and because each of
20 the three listed co-inventors of the ’D735 Patent, also chief executives and co-
21 founders at Nyssa, publicly described these same aspects as “functional” (see ¶¶ 41-
22 49, supra). As such, no patent owner of the ’D735 Patent would reasonably conclude
23 that the design elements of the ’D735 Patent were not primarily functional. At the
24 time of its patent assertion, Nyssa understood that its assertion of the ’D735 Patent
25 against the Kindred Bravely FTPP was objectively unreasonable. As such, Nyssa’s
26 assertion of the ’D735 Patent was both objectively and subjectively unreasonable
27 because the purported ornamental design of the ’D735 Patent was primarily
28 functional.
ORIGINAL COMPLAINT
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1 55. In addition, Nyssa’s assertion of the ’D735 Patent was unreasonable for
2 a second reason: any non-functional elements of the ’D735 Patent were substantially
3 different from Kindred Bravely’s FTPP product, including at least (a) the shape of
4 the opening for the heating or cooling pack, (b) the location of the opening for the
5 heating or cooling back, and (c) the shape of the FTPP product itself. As such, no
6 patent owner of the ’D735 Patent would reasonably conclude that the design
7 elements of the ’D735 Patent, particularly in view of the prior art, were such that “in
8 the eye of an ordinary observer, giving such attention as a purchaser usually gives,
9 two designs are substantially the same, if the resemblance is such as to deceive such
10 an observer, inducing him to purchase one supposing it to be the other . . . .” See
11 Egyptian Goddess v. Swisa, 543 F.3d 665, 670 (Fed. Cir. 2008). At the time of its
12 patent assertion, Nyssa understood that its assertion of the ’D735 Patent against the
13 Kindred Bravely FTPP was objectively unreasonable because the designs were
14 substantially different. As such, Nyssa’s assertion of the ’D735 Patent was both
15 objectively and subjectively unreasonable because the purported ornamental design
16 of the ’D735 Patent was primarily functional.
17 56. At the same time, Defendant Nyssa also alleged to Kindred Bravely and
18 its investors that certain Kindred Bravely product images infringe the Defendant’s
19 copyright. See Exhibit B at 3-7. Nyssa provided the following image comparison to
20 support its allegation that Kindred Bravely infringed its copyrighted images:
21
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ORIGINAL COMPLAINT
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1 Nyssa Photograph Kindred Bravely Photograph
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21 57. Copyright law does not protect ideas. And “when similar features of a
22 work are as a practical matter indispensable, or at least standard, in the treatment of
23 a given idea, they are treated like ideas and are therefore not protected by copyright.”
24 Apple Computer, Inc. v. Microsoft Corp., 799 F. Supp. 1006, 1444 (N.D. Cal. 1992).
25 58. Copyright “does not extend to the subject matter of the image itself”
26 but merely covers the unique expression of the subject matter. Gentieu v. Tony Stone
27 Images, 255 F. Supp. 2d 838, 849 (N.D. Ill. 2003); see also Eagle Access v. USA
28 Power, No. CV 07-3789, 2008 WL 11334485, at *6 (C.D. Cal. Dec. 18, 2008) (“If
ORIGINAL COMPLAINT
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1 purported copyright holders could assert a copyright in the underlying subject of the
2 photograph and claim infringement for depicting a similar object in another’s
3 photograph, this would severely limit the ability of individuals to photograph at
4 all.”).
5 59. Where “technical or conceptual constraints limit the available ways to
6 express an idea . . . copyright law will abhor only a virtually identical copy of the
7 original.” Apple Computer, 799 F. Supp. at 1444. There is no allegation that Kindred
8 Bravely made a “virtually identical copy of the original” with regard to any of
9 Nyssa’s product photos, nor has Nyssa alleged that such product photos are virtually
10 identical. Nyssa merely alleges that the works are “substantially similar.” See
11 Exhibit B at 7.
12 60. Any substantially similar ideas or elements are not entitled to
13 protection: “when similar features of a work are as a practical matter indispensable,
14 or at least standard, in the treatment of a given idea, they are treated like ideas and
15 are therefore not protected by copyright.” Apple Computer, 799 F. Supp. at 1444.;
16 see also Durham Indus. v. Tomy Corp., 630 F.2d 905, 913 (2d Cir. 1980) (“It follows
17 that where the protected work and the accused work express the same idea, the
18 similarity that inevitably stems solely from the commonality of the subject matter
19 is not proof of unlawful copying.”) (emphasis added).
20 61. “When we apply the limiting doctrines, subtracting the unoriginal
21 elements, [plaintiff] is left with only a ‘thin’ copyright, which protects against only
22 virtually identical copying. Ets-Hokin v. Skyy Spirits Inc., 323 F.3d 763, 765 (9th
23 Cir. 2003). Nyssa is entitled to only a “thin” copyright in its asserted photos.
24 62. Kindred Bravely has not made “virtually identical” copies of any of
25 Nyssa’s photographs and any similarities stem from “the commonality of the subject
26 matter”—which is not protectible expression.
27
28
ORIGINAL COMPLAINT
- 25 -
1 COUNT I: DECLARATORY JUDGMENT OF NON-INFRINGEMENT

2 U.S. Design Patent No. D935,735
63. Kindred Bravely incorporates by reference and re-alleges paragraphs 1-
3
62 as if fully set forth herein.
4
64. Aubrey Howard, Eden Laurin, and Mia Clarke are the inventors of the
5
’D735 Patent. See Exhibit A.
6
65. Nyssa Care, Inc. is the owner of the ’D735 Patent by assignment. See
7
Exhibit A.
8
66. The Kindred Bravely FTPP does not infringe the ’D735 Patent because
9
the two designs, as illustrated below, “in the eye of an ordinary observer, giving such
10
attention as a purchaser usually gives,” are not “substantially the same,” such that a
11
purchaser would “purchase one supposing it to be the other . . . .” See Egyptian
12
Goddess v. Swisa, 543 F.3d 665, 670 (Fed. Cir. 2008).
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67. The design of the Kindred Bravely FTPP and the ’D735 Patent are not
27
substantially the same at least for the following reasons:
28
ORIGINAL COMPLAINT
- 26 -
1 a. The proportions and height of the Kindred Bravely FTPP

2 undergarment are substantially different from the design of the ’D735 Patent;
3 b. The top horizontal front opening of the Kindred Bravely FTPP is
4 merely a “slit” in the fabric and is substantially different from the “gapped” front
5 opening in the design of the ’D735 Patent;
6 c. The Kindred Bravely FTPP also has a bottom horizontal slit that
7 is not present at all in the design of the ’D735 Patent; and
8 d. The location of the horizontal openings of the Kindred Bravely
9 FTPP is substantially higher on the garment than the location of the “gapped” front
10 opening in the design of the ’D735 Patent.
11 68. Kindred Bravely is entitled to a declaratory judgment that its Accused
12 Products do not infringe the ’D735 Patent.
13 COUNT II: DECLARATORY JUDGMENT OF INVALIDITY
14 U.S. Design Patent No. D935,735
15
16
70. Aubrey Howard, Eden Laurin, and Mia Clarke are the listed inventors
17
of the ’D735 Patent. See Exhibit A.
18
71. Nyssa Care, Inc. is the owner of the ’D735 Patent by assignment. See
19
Exhibit A.
20
72. The ’D735 Patent is invalid for failure to satisfy one or more provisions
21
of Title 35 of the United States Code, including but not limited to 35 U.S.C. §§ 102
22
and 103, and is invalid in view of the prior art including but not limited to the
23
following exemplary prior art references.
24
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- 27 -
2
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10 US Patent Application Publication
11 (Publication date Apr 28, 2005)
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US 20080010716
11 (Publication date Jan 17, 2018)
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22 US 20080010716
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2
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Snowballs – Cooling underwear for men (Filing date Sep 18, 2019)
11
https://www.snowballsunderwear.com/
12 (Publication date Aug 1, 2018)
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Korean Patent App. No. 20150000806U
21 “Functional ice briefs for men”
22 (Publication date February 25, 2015)

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13 Taiwan Patent App. No. M445524U1
“Postpartum ice pack panties”
14 (Publication date February 11, 2013)
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Taiwan Patent App. No. M481615U
27 “Disposable ice pack underpants”
(Publication date July 11, 2014)
28
ORIGINAL COMPLAINT
- 31 -
2
3 73. In addition, the design of the ’D735 Patent is dictated entirely by its
4 function and the patent is therefore invalid. For example, the shape of the therapeutic
5 undergarment, the opening for an ice or heat pack, and the location of the opening
6 are entirely functional.
7 74. Kindred Bravely is entitled to a declaratory judgment that the ’D735
8 Patent is invalid.
COUNT III: DECLARATORY JUDGMENT
9
OF COPYRIGHT NON-INFRINGEMENT
10 75. Kindred Bravely incorporates by reference and re-alleges paragraphs 1-
11 74 as if fully set forth herein.
12 76. Nyssa alleges that it owns copyrights in the product photos below. See
13 also Exhibit B, at 3-7.
14 77. As shown in the table below, Kindred Bravely’s product photographs
15 are not “virtually identical” to Nyssa’s photographs and any similarity is due to the
16 “commonality of the subject matter” of modeling postpartum underwear with ice
17 packs—not infringement of any of Nyssa’s thin copyrights:
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11 78. Kindred Bravely is entitled to a declaration that its product photographs
12 do not infringe on Nyssa’s product photographs.
13 COUNT IV: TORTIOUS INTERFERENCE
14 79. Kindred Bravely incorporates by reference and re-alleges paragraphs 1-
15 78 as if fully set forth herein.
16 80. Before the Defendant’s wrongful actions, Kindred Bravely was party
17 to a business relationship with Amazon for the sale of its Kindred Bravely FTPP
18 products. Through wrongful, malicious, and willful actions, Defendant Nyssa has
19 interfered with Kindred Bravely’s contract and business relationship with Amazon.
20 81. Kindred Bravely’s products were sold at Amazon ASINs
21 B0B81GK7W5, B0B818YBPF, B0B81C2P2R, B0B8139PTK, and B0B7ZY66CV
22 pursuant to a valid contractual agreement with Amazon. See Exhibit D.
23 82. On information and belief, Defendant Nyssa filed one or more
24 complaints with Amazon against Kindred Bravely ASINs B0B81GK7W5,
25 B0B818YBPF, B0B81C2P2R, B0B8139PTK, and B0B7ZY66CV alleging
26 infringement of the ’D735 Patent. See Exhibit D.
27 83. Defendant Nyssa was aware of Kindred Bravely’s business relationship
28 with Amazon and intentionally filed Complaints against the Kindred Bravely ASINs
ORIGINAL COMPLAINT
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1 for the joint purpose of benefitting Nyssa and harming Kindred Bravely.
2 84. The Defendant’s interference with Kindred Bravely’s business
3 relationship with Amazon was intentional in that the Defendant Nyssa targeted
4 Kindred Bravely’s product listings on Amazon for its Kindred Bravely FTPP
5 product and related ASINs.
6 85. Defendant Nyssa’s interference was wrongful and unjustified at least
7 because the ’D735 Patent is invalid under 35 U.S.C. §§ 102 and 103 in view of the
8 prior art identified herein; the ’D735 Patent claims a design that is functional; and in
9 the eye of an ordinary observer the Kindred Bravely FTPP product would not
10 infringe the ’D735 Patent because it is substantially different from the claimed
11 design.
12 86. Defendant Nyssa’s assertion of the ’D735 Patent against Kindred
13 Bravely’s FTPP product was an improper means of interfering with Kindred
14 Bravely’s contractual relations with Amazon.com.
15 87. Defendant Nyssa’s interference with Kindred Bravely’s business
16 relationships caused substantial reputational harm and economic damages to
17 Kindred Bravely through (a) disabled product listings; (b) lost product sales; (c)
18 reputational damage to its Amazon account; and (d) other damages to the product
19 listings, inventories, and to Kindred Bravely’s business.
20 COUNT V: CALIFORNIA UNFAIR COMPETITION
21 Cal. Bus. & Prof. Code § 17200
22
23
89. Before the Defendant’s wrongful actions, Kindred Bravely was party
24
to a business relationship with Amazon for the sale of its Kindred Bravely FTPP
25
products. Through wrongful, malicious, and willful actions, Defendant Nyssa has
26
interfered with Kindred Bravely’s contract and business relationship with Amazon.
27
28
ORIGINAL COMPLAINT
- 37 -
1 90. Kindred Bravely’s products were sold at Amazon ASINs

2 B0B81GK7W5, B0B818YBPF, B0B81C2P2R, B0B8139PTK, and B0B7ZY66CV
3 pursuant to a valid contractual agreement with Amazon. See Exhibit D.
4 91. On information and belief Defendant Nyssa filed one or more
5 complaints with Amazon against Kindred Bravely ASINs B0B81GK7W5,
6 B0B818YBPF, B0B81C2P2R, B0B8139PTK, and B0B7ZY66CV alleging
7 infringement of the ’D735 Patent. See Exhibit D.
8 92. Defendant Nyssa was aware of Kindred Bravely’s business relationship
9 with Amazon and intentionally filed Complaints against the Kindred Bravely ASINs
10 for the joint purpose of benefitting Nyssa and harming Kindred Bravely.
11 93. The Defendant’s interference with Kindred Bravely’s business
12 relationship with Amazon was intentional in that the Defendant Nyssa targeted
13 Kindred Bravely’s product listings on Amazon for its Kindred Bravely FTPP
14 product and related ASINs.
15 94. Defendant Nyssa’s interference was wrongful and unjustified at least
16 because the ’D735 Patent is invalid under 35 U.S.C. §§ 102 and 103 in view of the
17 prior art identified herein; the ’D735 Patent claims a design that is functional; and in
18 the eye of an ordinary observer the Kindred Bravely FTPP product would not
19 infringe the ’D735 Patent because it is substantially different from the claimed
20 design.
21 95. Defendant Nyssa’s assertion of the ’D735 Patent against Kindred
22 Bravely’s FTPP product was an improper means of interfering with Kindred
23 Bravely’s contractual relations with Amazon.com.
24 96. Defendant Nyssa’s actions were unlawful and unfair and forced
25 Kindred Bravely’s FTPP products from the Amazon marketplace.
26 97. Defendant Nyssa’s interference with Kindred Bravely’s business
27 relationships caused substantial reputational harm and economic damages to
28 Kindred Bravely through (a) disabled product listings; (b) lost product sales; (c)
ORIGINAL COMPLAINT
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1 reputational damage to its Amazon account, and (d) other damages to the product
2 listings, inventories, and to Kindred Bravely’s business.
3 PRAYER FOR RELIEF
4 WHEREFORE, Kindred Bravely respectfully requests that the Court enter
5 judgment in its favor and against Defendant Nyssa and award the following relief:
6 A. A judgment in favor of Kindred Bravely and against Defendant Nyssa
7 declaring that the ’D735 Patent is invalid.
8 B. A judgment in favor of Kindred Bravely and against Defendant Nyssa
9 declaring that Kindred Bravely has not and does not infringe the ’D735 Patent.
10 C. An order and judgment permanently enjoining Defendant Nyssa and its
11 officers, directors, employees, agents, licensees, representatives, affiliates, related
12 companies, servants, successors and assigns, and any and all persons acting in privity
13 or in concert with any of them, from further acts of wrongful assertion of the ’D735
14 Patent.
15 D. A judgment that this is an exceptional case, pursuant to 35 U.S.C.
16 § 285, together with an award to Kindred Bravely of its reasonable attorneys’ fees.
17 E. A judgment in favor of Kindred Bravely and against Defendant Nyssa
18 declaring that Kindred Bravely has not and does not infringe any copyright owned
19 by Defendant Nyssa.
20 F. A judgment that Defendant Nyssa has tortiously interfered with the
21 contract or business expectancy of Kindred Bravely.
22 G. A judgment that Defendant Nyssa has violated Cal. Bus. & Prof. Code
23 § 17200, together with an award of damages.
24 H. A judgment awarding Kindred Bravely all damages sustained by
25 Kindred Bravely and/or all gains, profits, and advantages derived by the Defendant
26 Nyssa as a result of its wrongful acts and tortious interference.
27 I. A judgment awarding Kindred Bravely punitive damages as a result of
28 the Defendant Nyssa’s willful and intentional acts of tortious interference.
ORIGINAL COMPLAINT
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1 J. Such other and further relief as the Court may deem just and proper.
2 JURY DEMAND
3 Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Kindred
4 Bravely demands a trial by jury on all claims and defenses so triable.
5
6 Dated: March 16, 2023 Respectfully submitted,
7 HALEY GUILIANO LLP

8
and
9
10 WORKMAN NYDEGGER PC
11 By: /s/ Donny Samporna
12 Donny K. Samporna
13 Attorneys for Kindred Bravely, LLC
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ORIGINAL COMPLAINT
- 40 -
Case 3:23-cv-00492-BEN-MSB
JS 44 (Rev. 10/20) Document
CIVIL COVER1-1 SHEET
Filed 03/17/23 PageID.42 Page 1 of 1
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.)
I. (a) PLAINTIFFS DEFENDANTS
AKERSON ENTERPRISES, LLC dba KINDRED NYSSA CARE, INC.
BRAVELY,
(b) County of Residence of First Listed Plaintiff San Diego County County of Residence of First Listed Defendant Cook County, Illinois
(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)
Donny K. Samporna, Haley Guiliano LLP, 2466 Palace '23CV0492 BEN MSB
Dr., San Diego, CA 92123, 669-213-1080
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
Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a))
140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment
150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust
& Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking
151 Medicare Act 330 Federal Employers’ Product Liability ✖ 830 Patent 450 Commerce
152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation
Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and
(Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations
153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR 880 Defend Trade Secrets 480 Consumer Credit
of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending Act 485 Telephone Consumer
190 Other Contract Product Liability 380 Other Personal 720 Labor/Management SOCIAL SECURITY Protection Act
195 Contract Product Liability 360 Other Personal Property Damage Relations 861 HIA (1395ff) 490 Cable/Sat TV
196 Franchise Injury 385 Property Damage 740 Railway Labor Act 862 Black Lung (923) 850 Securities/Commodities/
362 Personal Injury - Product Liability 751 Family and Medical 863 DIWC/DIWW (405(g)) Exchange
Medical Malpractice Leave Act 864 SSID Title XVI 890 Other Statutory Actions
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation 865 RSI (405(g)) 891 Agricultural Acts
210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 893 Environmental Matters
220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act FEDERAL TAX SUITS 895 Freedom of Information
230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 870 Taxes (U.S. Plaintiff Act
240 Torts to Land 443 Housing/ Sentence or Defendant) 896 Arbitration
245 Tort Product Liability Accommodations 530 General 871 IRS—Third Party 899 Administrative Procedure
290 All Other Real Property 445 Amer. w/Disabilities - 535 Death Penalty IMMIGRATION 26 USC 7609 Act/Review or Appeal of
Employment Other: 462 Naturalization Application Agency Decision
446 Amer. w/Disabilities - 540 Mandamus & Other 465 Other Immigration 950 Constitutionality of
Other 550 Civil Rights Actions State Statutes
448 Education 555 Prison Condition
560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
✖ 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. §§ 1 et seq.
VI. CAUSE OF ACTION Brief description of cause:
Declaratory judgment of patent non-infringement and patent invalidity
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. To be determined at trial
JURY DEMAND: ✖ Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
March 17, 2023 /s/ Donny Samporna
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 3:23-cv-00492-BEN-MSB Document 1-2 Filed 03/17/23 PageID.43 Page 1 of 6
Exhibit A
USOOD935735S
( 12 ) Howard
Unitedet States Design Patent ((4510)) Date
PatentofNoPatent
.: : US D935,735 S
al . ** *Nov. 16 , 2021
( 54 ) THERAPEUTIC UNDERGARMENT strat = copurchase & pr_rec_pid = 3701228437597 & pr_ref_pid =
5242859815065 & pr_seq =uniform ( Year: 2019 ) . *
( 71 ) Applicant: Nyssa Care Inc. , Chicago , IL (US ) (Continued )
( 72 ) Inventors: Aubrey Howard , Chicago, IL (US ) ; Primary Examiner Kevin K Rudzinski
Eden Laurin , Chicago , IL (US ) ; Mia Assistant Examiner J. Thorn, Sr.
Clarke , Chicago , IL (US ) (74 ) Attorney, Agent, or Firm - Incubate IP ; Randy R.
Micheletti
( 73 ) Assignee : Nyssa Care Inc. , Chicago , IL (US )
(57) CLAIM
( * ) Notice: This patent is subject to a terminal dis The ornamental design for a therapeutic undergarment, as
claimer.
shown and described .
( ** ) Term : 15 Years DESCRIPTION
( 21 ) Appl. No .: 29 / 706,230 FIG . 1 is a perspective view of a therapeutic undergarment
(22) Filed : Sep. 18 , 2019 showing one embodiment of our new design .
FIG . 2 is a right side view of the therapeutic undergarment
( 51 ) LOC ( 13 ) CI . 02-01 of FIG . 1 .
( 52) U.S. CI. FIG . 3 is aa left side view of the therapeutic undergarment of
USPC D2 /712 FIG . 1 .
(58) Field of Classification Search FIG . 4 is front view of the therapeutic undergarment of
USPC D2 /712 , 700-701, 704 FIG . 1 .
(Continued ) FIG . 5 is a rear view of the therapeutic undergarment of FIG .
1.
( 56 ) References Cited FIG . 6 is a top view of the therapeutic undergarment of FIG .
1.
U.S. PATENT DOCUMENTS FIG . 7 is a bottom view of the therapeutic undergarment of
FIG . 1 .
1,929,363 A * 10/1933 Long A41B 9/04 FIG . 8 is a front view of a therapeutic undergarment showing
2/406 another embodiment of our new design .
2,320,458 A * 6/1943 Jopson A41B 13/04 FIG . 9 is a right side view of the therapeutic undergarment
2/406 of FIG . 8 .
(Continued ) FIG . 10 is aa left side view of the therapeutic undergarment
of FIG . 8 .
FOREIGN PATENT DOCUMENTS FIG . 11 is a front view of a therapeutic undergarment
JP 2012180603 A 9/2012 showing another embodiment of our new design .
WO 2020206122 A1 10/2020 FIG . 12 is aa right side view of the therapeutic undergarment
of FIG . 11 .
OTHER PUBLICATIONS FIG . 13 is a left side view of the therapeutic undergarment
of FIG . 11 .
Fourth Wear Postpartum Recovery Underwear, posted as early as FIG . 14 is a front view of a therapeutic undergarment
Nov. 18 , 2019 [ online] , ( retrieved Apr. 2 , 2021 ) . Retrieved from the showing another embodiment of our new design .
internet, https://nyssacare.com/products/fourthwear-underwear pr_prod_ (Continued )
Ev+
US D935,735 S
Page 2
FIG . 15 is a right side view of the therapeutic undergarment 4,009,495 A * 3/1977 Faust A41B 9/004
of FIG . 14 ; and, 2/406
5,093,935 A * 3/1992 Countee, Jr. A41B 9/02
FIG . 16 is a left side view of the therapeutic undergarment 2/247
of FIG . 14 . D384,487 S *
10/1997 Ingels D2 /713
The features shown in broken lines in the various Figures are 6,018,823 A 2/2000 Ortmeier
D677,447 S * 3/2013 Shoemaker A41B 9/02
for illustrating environmental structure and form no part of D2 /712
the claimed design . D753,893 S * 4/2016 Yang D2 /712
D850,759 S * 6/2019 Westberg -Heuer D2 /712
1 Claim , 3 Drawing Sheets D854,280 S 7/2019 Ngangu D2 /712
D864,522 S 10/2019 Nacif Benavides D2 /712
D865,162 S 10/2019 Yamada D24 / 126
D893,130 S * 8/2020 Shannon D2 /701
( 58 ) Field of Classification Search D893,131 S * 8/2020 Shannon D2 /701
CPC A41D 1/062 ; A41D 1/065 ; A41D 1/067 ; 2006/0101558 A1 5/2006 Coleman et al .
2008/0189832 A1 * 8/2008 Oscher A41D 7/005
A41D 1/08 ; A41D 7/00 ; A41D 7/005 2/400
See application file for complete search history . 2011/0023216 A1 2/2011 O'Leary
2014/0378936 A1 12/2014 Coates
( 56) References Cited 2019/0328047 A1 * 10/2019 Beach A41D 7/005
U.S. PATENT DOCUMENTS OTHER PUBLICATIONS
2,544,840 A 3/1951 Kowatsch A41D 27/208 International Search Report and Written Opinion for related PCT /
2/67 US20 /26387 (dated Jun . 30 , 2020 ) , 14 pages.
2,623,210 A * 12/1952 Chatfield D04B 1/18
450/104 * cited by examiner
U.S. Patent Nov. 16,2021 Sheet 1 of3 US D935,735 S
Fig.1
JION Fig.2 Fig.3
Fig.4 Fig.5
00 oo Fig.6 Fig.7
U.S. Patent Nov. 16 , 2021 Sheet 2 of 3 US D935,735 S
Fig. 8
Fig. 9
Fig. 10
U.S. Patent Nov. 16 , 2021 Sheet 3 of 3 US D935,735 S
***
Fig. 11 Fig. 14
Fig.12 Fig.15
Fig. 13 Fig.16
Exhibit B
Exhibit C
U.S. Patent Infringement complaint: "Kindred Bravely's Soothing Fourth

Trimester Panty" infringes US Design Patent No. D935,735S
Tue, Nov 15, 2022 at 2:13 PM
Randy Micheletti <[email protected]>
To: [email protected]
Dear Shopify Legal,
I write on behalf of Nyssa Care Inc., owner of U.S. Design Patent No. D935,735 (attached hereto;
referred to hereinafter as "the '735 Patent").
Online retailer Kindred Bravely has been offering for sale in the United States via its Shopify-
enabled ecommerce site kindredbravely.com a product that infringes the '735 Patent . Namely,
Kindred Bravely's "Soothing Fourth Trimester Panty" product, available at the URL listed below,
infringes the '735 Patent.
https://www.kindredbravely.com/products/soothing-fourth-trimester-panty-without-gel-packs-
black?utm_source=google&utm_medium=cpc&utm_medium=paid&utm_campaign=6616904761440
&utm_campaign=8642377863&dfw_tracker=47550-
39506910052448&utm_content=86653895923&utm_term=&gadid=406867977344&gclid=CjwKCAjw
s--ZBhAXEiwAv-RNL7aBXwpi8gV61VAVnjyDEihdgQLdouTjaANa05hatEZni-NcLpRmQBoCf-
oQAvD_BwE&variant=39506910052448
The ‘735 Patent covers therapeutic undergarments featuring the ornamental design set forth in
Figures 1-14. Under U.S. law, a patent owner holds exclusive rights to control sales, offers for sale,
manufacture, and importation of goods that read on the patented design. Nyssa Care has not
authorized Kindred Bravely to make, sell, offer for sale, or import into the United States any
products that infringe the '735 Patent, such as the "Soothing Fourth Trimester Panty" product.
We therefore request that you immediately cease processing ecommerce orders for Kindred
Bravely's Soothing Fourth Trimester Panty product until further notice.
We acknowledge that your policy is to provide the contents of this email, including the contact
information for Nyssa Care's undersigned representative, to Kindred Bravely.
Please do not hesitate to contact Nyssa Care's undersigned attorney should you have any questions
about this communication.
Regards,
Randy R. MichelettiPresident, Attorney
(312) 600-5412
[email protected]
www.IncubateIP.com
LinkedIn
Incubate IP is part of Micheletti Law Group, Ltd. Attorneys licensed in Illinois, Iowa, and before the
US Patent & Trademark Office.
Exhibit D
Exhibit E

Akerson Enters. v. Nyssa Care - Complaint

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Case 3:23-cv-00492-BEN-MSB Document 1 Filed 03/17/23 PageID.

1 Donny K. Samporna (SBN 316456)

1 Plaintiff Akerson Enterprises, LLC dba Kindred Bravely (“Kindred

1 §§ 1 et seq. Plaintiff also seeks declaratory judgment of copyright non-infringement

1 Bravely’s online website presence caused harm to Kindred Bravely in California,

1 27. On November 15, 2022, Nyssa sent correspondence to Shopify alleging

1 39. Figure 4 of the ’D735 Patent highlights the functional aspects of

1 - “Super stretchy, virtually seamless fabric accommodates changing bodies

1 Prior Art Figures – ’D735 Patent

1 Kindred Bravely FTPP Figures – ’D735 Patent

1 Nyssa Photograph Kindred Bravely Photograph

1 Nyssa Photograph Kindred Bravely Photograph

1 Nyssa Photograph Kindred Bravely Photograph

1 Nyssa Photograph Kindred Bravely Photograph

22 work are as a practical matter indispensable, or at least standard, in the treatment of

1 COUNT I: DECLARATORY JUDGMENT OF NON-INFRINGEMENT

1 a. The proportions and height of the Kindred Bravely FTPP

1 Prior Art Figures – ’D735 Patent

1 Prior Art Figures – ’D735 Patent

1 Prior Art Figures – ’D735 Patent

23 (Filing date Sep 18, 2019)

1 Prior Art Figures – ’D735 Patent

1 Prior Art Figures – ’D735 Patent

1 Nyssa Photograph Kindred Bravely Photograph

1 Nyssa Photograph Kindred Bravely Photograph

1 Nyssa Photograph Kindred Bravely Photograph

1 Nyssa Photograph Kindred Bravely Photograph

1 90. Kindred Bravely’s products were sold at Amazon ASINs

7 HALEY GUILIANO LLP

Citizen or Subject of a 3 3 Foreign Nation 6 6

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

U.S. Patent Nov. 16,2021 Sheet 1 of3 US D935,735 S

U.S. Patent Nov. 16 , 2021 Sheet 2 of 3 US D935,735 S

U.S. Patent Nov. 16 , 2021 Sheet 3 of 3 US D935,735 S

U.S. Patent Infringement complaint: "Kindred Bravely's Soothing Fourth

Dear Shopify Legal,

Randy R. MichelettiPresident, Attorney

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