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IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

CHOON’S DESIGN INC., 

a Michigan corporation, 

 

 Plaintiff 

 Case No. 

v. 

 

OPTARI LLC, 

a Tennessee limited liability company, JURY TRIAL DEMANDED

 

 Defendant 

 

COMPLAINT AND JURY DEMAND

NOW COMES Choon’s Design Inc. (“Plaintiff” or “Choon’s”), by and 

through its attorneys, Carlson, Gaskey & Olds, P.C., and for its Complaint against 

Defendant Optari LLC (“Defendant” or “Optari”) states as follows. Choon’s also 

wishes to note that it currently has six1

 other pending patent lawsuits before this 

Court, only one of which involves the patent in suit.2

 A Motion for Reassignment 

(to consolidate the cases) was denied.3

 

1

 The pending cases in this Court are: 1) Case No. 13-13568-PJD-RSW; 2) Case 

No. 13-13569-TGB-MKM; 3) Case No. 14-10848-VAR-DRG; 4) Case No. 14-

11442-LJM-MKM; 5) Case No. 14-11802-RHC-DRG; and, 6) 14-12259-RHCDRG. 

2

 Case No. 14-cv-10848-VAR-DRG asserts the patent in suit. 

3

 See Doc. 53 in Case No. 13-13568-PJD-RSW. 

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PARTIES 

1. Choon’s is a Michigan corporation having its primary place of 

business at 48813 West Road, Wixom, Michigan 48393. 

2. Optari is a Tennessee limited liability company having its primary 

place of business at 320 Premier Ct. S., Ste. 222, Franklin, Tennessee 37067-8252. 

JURISDICTION AND VENUE 

3. This Court has original subject matter jurisdiction over the claims in 

this action pursuant to 28 U.S.C. § 1331 (federal question), § 1332 (diversity), and 

§ 1338(a) (patents). 

4. Defendant is subject to personal jurisdiction in this Court. In 

particular, this Court has personal jurisdiction over Defendant because it has 

engaged in continuous, systematic and substantial activities within this judicial 

district, including the marketing and sales of products in this judicial district. 

Furthermore, upon information and belief, this Court has personal jurisdiction over 

Defendant because it has committed acts giving rise to Choon’s claims within and 

directed to this judicial district. For instance, Defendant has sold and shipped 

products to customers located in this judicial district. 

5. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b), (c) 

and 1400 (a). 

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BACKGROUND 

6. In late 2011, Choon’s introduced its Rainbow Loom product (“the 

Rainbow Loom”) to the market. The Rainbow Loom is a kit including, among 

other things, a loom designed to be used with rubber bands to form links for 

making bracelets, necklaces, and even bags and other items. 

7. Choon’s introduced the Rainbow Loom by selectively placing it in 

specialty toy and craft stores. Choon’s did not initially sell the product to any retail 

chains—although it does now. 

8. Notwithstanding, the Rainbow Loom product was, from the get go, 

received with great fanfare and accomplished almost immediate and monumental 

success—even without any relationships with retail chains. 

9. In an article dated July 19, 2013 (attached as Exhibit 1), one store 

owner noted “[w]e are selling the Rainbow Loom like crazy!” The article further 

notes that the Rainbow Loom is “[t]he summer obsession ... [and] ... is flying off 

shelves so quickly that stores can’t keep them in stock for long,” and that the 

popularity of the Rainbow Loom has “‘spread like wildfire throughout the 

country,’ especially with kids 5 to 15.” 

10. Choon’s founder, Cheong Choon Ng, has been featured on the NBC’s 

TODAY show (http://www.today.com/style/new-silly-bandz-rainbow-loombracelets-hit-kids-6C10920802) and his amazing success story has been detailed in 

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a number of publications. Copies of a few of the published articles, such as those in 

The Wall Street Journal, The New York Times, and Crain’s Detroit Business are 

attached as Exhibit 2. 

11. Undoubtedly, the Rainbow Loom has become a smash hit within the 

toy industry. Recently, Choon’s was awarded the coveted “Toy of the Year” award 

at the 14th Annual Toy of the Year Awards held in New York City. Choon’s also 

received awards for “Activity Toy of the Year,” “Girl Toy of the Year,” and 

“Specialty Toy of the Year.” A press release from the Toy Industry Association is 

attached as Exhibit 3. 

12. Since its introduction into the market, Choon’s has sold more than 

seven million Rainbow Loom kits in the U.S. 

13. In addition to a loom, rubber bands, and clips, Choon’s Rainbow 

Loom kit also includes a Mini Rainbow Loom, comprising a hook and a mini 

loom. Choon’s also sells the Mini Rainbow Loom individually (separate from the 

Rainbow Loom kits). 

14. Choon’s tremendous success has led to numerous copycats trying to 

capitalize on Choon’s hard work. For instance, after taking note of Choon’s great 

success, Defendant has begun selling a product called “Mini Loom” (hereinafter 

the “Mini Loom kit”), which comes with a mini loom, hook, rubber bands, and 

clips. The Mini Loom kit is listed for sale at least through Defendant’s website, 

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optari.com (Exhibit 4), and through a listing on Amazon.com (Exhibit 5). Exhibit 

6 includes photographs of Defendant’s Mini Loom kit (including the packaging, 

which includes directions for use on the rear face). 

15. Choon’s owns United States Patent No. 8,622,441 (“the ‘441 patent”), 

entitled “Hand Held Link Making Device and Kit,” which was issued on 

September 13, 2013 by the United States Patent and Trademark Office. A true and 

correct copy of the ‘441 patent is attached hereto as Exhibit 7. 

16. The ‘441 patent covers Choon’s Mini Rainbow Loom. 

17. The ‘441 patent names Cheong Choon Ng as inventor. 

18. Choon’s is the owner by assignment of all right, title and interest in 

the ‘441 patent. 

19. The ‘441 patent generally relates to, inter alia, a novel device, method 

and kit for creating a linked item. 

20. Defendant’s Mini Loom kit infringes one or more of the claims of 

Choon’s ‘441 patent. 

21. Choon’s also owns U.S. Trademark Registration No. 4,345,796 for the 

RAINBOW LOOM mark, and uses this mark in connection with its products. A 

copy of the registration is attached as Exhibit 8. 

22. Defendant’s packaging of the Mini Loom kit uses discrete colors 

commonly associated with rainbows (i.e., red, orange, yellow, green, blue, indigo, 

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and violet) (see Exhibits 4-6) as a backdrop for the term “LOOM.” Defendant 

infringes Choon’s RAINBOW LOOM mark for at least this reason. 

COUNT I – DIRECT INFRINGEMENT OF THE ‘441 PATENT

23. Choon’s incorporates and re-alleges Paragraphs 1 through 22 as each 

were fully set forth herein. 

24. The ‘441 patent remains valid, enforceable and unexpired. 

25. Upon information and belief, Defendant is directly infringing and has 

directly infringed the ‘441 patent, including, without limitation, by making, using, 

selling, offering for sale, and/or importing, without license or authority, the Mini 

Loom kit, which is covered by the ‘441 patent. 

26. The Mini Loom kit falls within the scope of one or more claims of the 

‘441 patent. Upon information and belief, Defendant directly infringes claims 1-16 

of the ‘441 patent. 

27. Upon information and belief, Defendant has actual knowledge of the 

‘441 patent and knowledge of its infringement of the ‘441 patent. For instance, see 

Exhibit 9, an email exchange between Cheong Choon Ng and Jeremiah Pent 

wherein Mr. Ng notifies Mr. Pent that Choon’s Design filed a utility patent on the 

Mini Rainbow Loom. Additionally, Defendant has knowledge of the ‘441 patent as 

of the filing of this lawsuit. 

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28. Upon information and belief, Defendant’s infringement has been and 

continues to be willful and deliberate. 

29. As a result of Defendant’s infringement, Choon’s will suffer severe 

and irreparable harm, unless that infringement is enjoined by this Court, and has 

suffered substantial damages. 

COUNT II – CONTRIBUTORY INFRINGEMENT OF THE ‘441 PATENT 

30. Choon’s incorporates and re-alleges Paragraphs 1 through 29 as each 

were fully set forth herein. 

31. The Mini Loom kit and the use of the Mini Loom kit fall within the 

scope of the claims of the ‘441 patent. 

32. Upon information and belief, with knowledge of the ‘441 patent, 

Defendant has contributed to and continues to contribute to the infringement of the 

‘441 patent under 35 U.S.C. § 271(c) by selling, offering to sell and/or importing 

the Mini Loom kit for use by its customers. Defendant’s customers directly 

infringe the ‘441 patent by using the Mini Loom kit to create linked items from 

elastic bands. 

33. Upon information and belief, the Mini Loom kit is marketed and sold 

to customers who use it to create linked items for elastic bands. By following the 

instructions provided by Defendant, customers who use the Mini Loom kit directly 

infringe the ‘441 patent. 

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34. Upon information and belief, Defendant’s Mini Loom kit has no 

substantial non-infringing use for at least the reason that the Mini Loom kit can 

only be used to directly infringe the ‘441 patent. In other words, when Defendant’s 

instructions (shown in Exhibit 6) are followed, the Mini Loom kit is only used in 

an infringing manner, and is only advertised by Defendant for such an infringing 

use. 

35. Upon information and belief, the accused Mini Loom kit also 

constitutes a material part of the invention of the ‘441 patent for at least the reason 

it is the very product used to practice the invention of the ‘441 patent. 

36. Upon information and belief, Defendant knows that the accused Mini 

Loom kit is especially made or especially adapted for use in an infringement of the 

‘441 patent for at least the reason that the Mini Loom kit is advertised, sold, and/or 

offered for sale only to create linked items from elastic bands in a manner covered 

by the ‘441 patent. 

37. Upon information and belief, Defendant has actual and/or constructive 

knowledge of the ‘441 patent and that Defendant’s customers’ use of the accused 

Mini Loom kit directly infringes the claims of the ‘441 patent. 

38. Upon information and belief, Defendant has actual knowledge of the 

‘441 patent. Defendant’s knowledge of the ‘441 patent is based on the email 

exchange between Mr. Ng and Mr. Pent in Exhibit 9. Additionally, Defendant has 

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knowledge of the ‘441 patent as of the filing of this lawsuit. At a minimum, 

Defendant was willfully blind as to the existence of the ‘441 patent, and therefore 

willfully blinded itself as to its customers’ direct infringement of the ‘441 patent 

resulting from their use of the Mini Loom kit. 

39. As a result of Defendant’s contributory infringement, Choon’s will 

suffer severe and irreparable harm, unless the infringement is enjoined by this 

Court, and has suffered substantial damages. 

COUNT III – INDUCED INFRINGEMENT OF THE ‘441 PATENT

40. Choon’s incorporates and re-alleges Paragraphs 1 through 39 as each 

were fully set forth herein. 

41. Upon information and belief, with knowledge of the ‘441 patent, 

Defendant has induced to and continues to induce to the infringement of the ‘441 

patent under 35 U.S.C. § 271(b) by selling, offering to sell and/or importing the 

Mini Loom kit for use by its customers. Defendant’s customers directly infringe by 

using the Mini Loom kit to create linked items. 

42. Defendant specifically intended its customers to infringe the claims of 

the ‘441 patent and knew that its customers’ acts constituted infringement. Upon 

information and belief, despite a high likelihood that its actions would induce its 

customers’ direct infringement of the ‘441 patent, Defendant marketed and sold the 

Mini Loom kit to its customers to practice the claimed invention. Defendant’s 

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customers directly infringe the ‘441 patent by creating linked articles from elastic 

bands by following the instructions provided on Defendant’s product (Exhibit 6). 

43. Upon information and belief, Defendant knew that its customers’ 

actions, when performed, would directly infringe the ‘441 patent. 

44. Upon information and belief, Defendant has not made any changes to 

the Mini Loom kit despite its knowledge of the ‘441 patent. 

45. Upon information and belief, Defendant has not made any changes to 

any of its instructional materials, despite its knowledge of the ‘441 patent. 

46. Upon information and belief, despite having actual knowledge of the 

‘441 patent, Defendant continues to actively induce infringement of the ‘441 patent 

by continuing to promote the infringing Mini Loom kit. Defendant intended its 

customers to directly infringe the ‘441 patent, or at the very least, were willfully 

blind to the fact that Defendant’s customers’ use of the infringing Mini Loom kit 

would directly infringe the ‘441 patent. 

47. Upon information and belief, Defendant has actual knowledge of the 

‘441 patent. Defendant’s knowledge of the ‘441 patent is based on the email 

exchange between Mr. Ng and Mr. Pent (Exhibit 9). Additionally, Defendant has 

knowledge of the ‘441 patent as of the filing of this lawsuit. At a minimum, 

Defendant was willfully blind as to the existence of the ‘441 patent, and therefore 

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willfully blinded itself as to its customers’ direct infringement of the ‘441 patent 

resulting from their use of the Mini Loom kit. 

48. As a result of Defendant’s inducement of infringement, Choon’s will 

suffer severe and irreparable harm, unless that infringement is enjoined by this 

Court, and has suffered substantial damages. 

COUNT IV – TRADEMARK INFRINGEMENT 

IN VIOLATION OF THE LANHAM ACT, 15 U.S.C. § 1114 

49. Choon’s incorporates and re-alleges Paragraphs 1 through 48 as each 

were fully set forth herein. 

50. Defendant has, without Choon’s consent, used in commerce a 

colorable imitation of the RAINBOW LOOM mark in connection with the sale, 

offering for sale, distribution, and/or advertising of goods or services likely to 

cause confusion, or to cause a mistake, or to deceive in violation of Section 

32(1)(a) of the Lanham Act, 15 U.S.C. § 1114. 

51. Choon’s federal registration on the Principal Register for the mark 

RAINBOW LOOM is conclusive evidence of Choon’s exclusive right to use this 

mark, pursuant to the Lanham Act, 15 U.S.C. § 1115. 

52. The infringing acts committed by Defendant were committed with 

knowledge that such imitation was intended to be used to cause confusion, or to 

cause mistake or to deceive, and has caused, and, unless enjoined, will continue to 

cause damage to Choon’s. 

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53. As a proximate result of Defendant’s actions, Choon’s has suffered 

and will continue to suffer great damage to its business, goodwill, reputation, 

profits and the strength of its trademarks. The injury is and continues to be ongoing 

and irreparable. An award of monetary damages alone cannot fully compensate 

Choon’s for its injuries and Choon’s lacks an adequate remedy at law. 

54. Upon information and belief, the foregoing acts of infringement have 

been and continue to be deliberate, willful and wanton, making this an exceptional 

case within the meaning of 15 U.S.C. § 1117. 

55. Choon’s is entitled to a permanent injunction against Defendant, as 

well as all other remedies available under the Lanham Act, including, but not 

limited to, compensatory damages; treble damages; disgorgement of profits; and 

costs and attorney’s fees. 

COUNT V – TRADEMARK INFRINGEMENT 

IN VIOLATION OF THE LANHAM ACT, 15 U.S.C. § 1125(a)

56. Choon’s incorporates and re-alleges Paragraphs 1 through 55 as each 

were fully set forth herein. 

57. Choon’s RAINBOW LOOM mark is “famous” within the meaning of 

Section 43(c)(1) of the Lanham Act, 15 U.S.C. § 1125(c) (the “Anti-Dilution 

Act”). 

58. Choon’s is the owner of the RAINBOW LOOM mark. 

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59. Choon’s has no control over the quality of the Defendant’s web site, 

advertising, other promotional materials, or products. 

60. After Choon’s RAINBOW LOOM mark became famous, Defendant 

commenced use of a mark in commerce that is likely to cause dilution by impairing 

the distinctiveness of the RAINBOW LOOM mark, lessening the capacity of the 

mark to identify and distinguish the products offered by Choon’s, and by creating 

an association arising from the similarity between Defendant’s mark and Choon’s 

RAINBOW LOOM mark that harms the reputation of Choon’s famous mark. 

61. Defendant’s unauthorized use of Choon’s famous RAINBOW LOOM 

mark will tend to, and does, dilute the distinctive quality of said mark and will 

diminish and destroy the public association of said mark with Choon’s in violation 

of 15 U.S.C. § 1125(c). 

62. Upon information and belief, Defendant willfully intended to trade on 

the recognition of Choon’s mark and caused dilution of Choon’s famous mark. 

63. By reason of the acts of Defendant alleged herein, Choon’s has 

suffered, is suffering, and will continue to suffer irreparable damage and, unless 

Defendant is restrained from continuing its wrongful acts, the damage will be 

increased. 

64. Choon’s has no adequate remedy at law. 

 

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PRAYER FOR RELIEF 

Choon’s respectfully requests that this Court enter judgment in its favor and 

against Defendant on all counts of this Complaint. Choon’s specifically requests 

that this Court: 

A. Enter an order adjudging that Defendant has infringed the ‘441 patent; 

B. Enter an order adjudging Defendant to have willfully infringed the 

‘441 patent; 

C. Grant permanent injunction enjoining Defendant and its officers, 

directors, agents, servants, employees and those persons in active concert or 

participation with Defendant from directly or indirectly infringing the ‘441 patent 

in violation of 35 U.S.C. § 271; 

D. Award damages adequate to compensate Choon’s for Defendant’s 

infringement of the ‘441 patent; 

E. Award damages adequate to compensate Choon’s for infringement 

including those damages provided for in 35 U.S.C. § 154(d). 

F. Enter an order for a trebling of damages and/or exemplary damages 

because of Defendant’s willful infringement pursuant to 35 U.S.C. § 284; 

G. Enter an order adjudging that this is an exceptional case; 

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H. Award Choon’s of its attorney fees and its costs and expenses 

incurred in connection with this action pursuant to 35 U.S.C. § 285 and as 

permitted under Choon’s other claims; 

I. A permanent injunction enjoining Defendant, its employees, agents, 

officers, directors, attorneys, representatives, successors, affiliates, parents, 

subsidiaries, licensees, and assigns, and all those in active concert or participation 

with any of them, from the following acts: 

a. using, attempting to use, or registering, on or in connection with 

any business or service, or the sale, offering for sale, distribution, 

advertising, promotion, labeling or packaging, of any service or 

any goods, or for any purpose whatsoever: (1) the RAINBOW 

LOOM mark, or any other name, mark or designation which 

colorably imitates or is confusingly similar to said name or mark, 

alone or in combination with any other mark(s), designation(s), 

word(s), term(s) and or design(s); and (2) any false description or 

representation or any other thing calculated or likely to cause 

confusion or mistake in the public mind or to deceive the public 

into the belief that Defendant or its products or services are 

connected to Choon’s or that Defendant’s products and services 

come from or are approved or endorsed by Choon’s; and 

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b. otherwise engaging in acts, either directly or through other entities, 

of infringement and unfair competition; 

J. A declaration that Defendant’s acts of trademark infringement and 

unfair competition are knowing, willful and “exceptional” within the meaning of 

15 U.S.C. § 1117; 

K. Enter judgment that Defendant has injured Choon’s business 

reputation and diluted the distinctive quality of Choon’s famous mark in violation 

of 15 U.S.C. § 1125(c)(1); 

L. Award damages to Choon’s as provided under 15 U.S.C. § 1117, 

including the Defendant’s profits, the damages sustained by Choon’s, and 

reasonable attorney fees to Choon’s as prevailing party, and/or if the court finds 

that the amount of recovery based on profits is either inadequate or excessive, to 

award a sum the court finds to be just, according to the circumstances of this case 

and the costs of this action. 

M. Enter an order requiring Defendant to file with the Court and serve 

upon Plaintiff, within thirty (30) days after the entry of such order or judgment, a 

report in writing and under oath setting forth in detail the manner and form in 

which it has complied with the injunction; 

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N. Enter an order awarding to Choon’s actual damages and an accounting 

of Defendant’s profits, including any statutory enhancements on account of the 

willful nature of Defendant’s acts; 

O. Award prejudgment and post-judgment interest and costs of this 

action; and 

P. Award Choon’s any other appropriate legal or equitable relief this 

Court deems just and proper. 

JURY DEMAND 

Pursuant to Fed R. Civ. P. 38(b) and 5(d), Plaintiff demands a trial by jury 

for all issues so triable. 

Dated: August 21, 2014 CARLSON, GASKEY & OLDS, P.C.

/s/ Timothy J. Murphy 

Theodore W. Olds, III (P42004) 

John M. Siragusa (P62573) 

Brian S. Tobin (P67621) 

Timothy J. Murphy (P77041) 

Carlson Gaskey & Olds, P.C. 

400 W. Maple, Suite 350 

Birmingham, Michigan 48009 

Telephone: (248) 988-8360 

Facsimile: (248) 988-8363 

Email: tmurphy@cgolaw.com 

Attorneys for Plaintiff Choon’s Design Inc.

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