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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

H-E-B, LP,

Plaintiff 

§ 

§ 

§ 

§ 

v. 

WADLEY HOLDINGS, LLC; SOUTHERN 

SALES & MARKETING GROUP, INC.; 

NINGBO KUER PLASTIC TECHNOLOGY 

CO., LTD.; NINGBO KUER KAYAK CO., 

LTD.; NINGBO KUER OUTDOOR 

PRODUCTS CO., LTD.; and THE HOME 

DEPOT, INC., 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Case No. 

COMPLAINT 

Plaintiff H-E-B, LP (“H-E-B”), by and through its undersigned attorneys, for its 

complaint against Defendants Wadley Holdings, LLC, Southern Sales & Marketing Group, Inc., 

Ningbo Kuer Plastic Technology Co., Ltd.; Ningbo Kuer Kayak Co., Ltd.; Ningbo Kuer Outdoor 

Products Co., Ltd.; and The Home Depot (collectively, “Defendants”) alleges as follows: 

6:20-cv-00081

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BRIEF SUMMARY OF ALLEGATIONS 

For over 100 years, H-E-B has served the communities and consumers of Texas by 

bringing them goods and services of the highest quality. At every turn, H-E-B has sought to 

innovate and pursue the latest technologies in order to improve its product and service offerings. 

This has earned H-E-B a tremendous reputation and goodwill with its customers throughout the 

state. 

One of the unique products H-E-B has developed is the KODI® cooler. In addition to 

incorporating the highest quality materials and superior design, H-E-B’s KODI cooler 

incorporates improved valve technology that has been awarded four U.S. patents. 

The KODI coolers also bear special, unique trade dress regarding the placement, color, 

and appearance of the valve that denote them as H-E-B products. This recognizable trade dress 

has taken on special, secondary meaning to consumers, identifying H-E-B as the source of the 

coolers and associating the coolers with H-E-B’s goodwill. 

Defendants have sought to capitalize on H-E-B’s innovation and reputation by 

incorporating both the patented technology and protected trade dress into their own coolers 

without permission. Defendants have imported, marketed, and sold their confusingly-similar, 

infringing coolers in Texas and, in particular, in this judicial district. 

Defendants’ confusingly-similar, infringing coolers have caused H-E-B financial and 

other irreparable harm. Accordingly, H-E-B is left with no choice but to seek judicial relief to 

enforce its intellectual property rights. 

 

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PARTIES 

1. H-E-B is a Texas limited partnership with its principal place of business at 646 

South Flores Street, San Antonio, Texas 78204. 

2. On information and belief, Wadley Holdings, LLC, d.b.a., nICE Coolers (“nICE”) 

is an Alabama limited liability company with its principal place of business at 134 Clay Street, 

Wadley, Alabama, 36276-3022. 

3. On information and belief, Southern Sales & Marketing Group, Inc. (“SSMG”) is 

a Georgia corporation with its principal place of business at 5801 Trade Center Court, Suite A, 

Villa Rica, Georgia, 30180-6710. On information and belief, nICE is a wholly-owned subsidiary 

of SSMG. 

4. On information and belief, Ningbo Kuer Plastic Technology Co., Ltd. (“Kuer 

Plastic”) is a Chinese limited liability company with its principal place of business at South 

Cidong Avenue, Binhai Economic Development Zone, Cixi City, Zhejiang Province, People’s 

Republic of China, 315338. 

5. On information and belief, Ningbo Kuer Kayak Co., Ltd. (“Kuer Kayak”) is a 

limited liability company with its principal place of business at No. 1433, Jinhai Road, Binhai 

Economic Development Zone, Cixi City, Zhejiang Province, People’s Republic of China, 

315338. 

6. On information and belief, Ningbo Kuer Outdoor Products Co., Ltd. (“Kuer 

Outdoor”) is a limited liability company with its principal place of business at Room 13-1, 

No. 18, Jinye Street, Luotuo Subdistrict, Zhenhai District, Ningbo City, Zhejiang Province, 

People’s Republic of China, 315202. 

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7. On information and belief, The Home Depot, Inc. (“Home Depot”), is a Delaware 

corporation with its principal place of business at 2455 Paces Ferry Road, Atlanta, Georgia 

30339. Home Depot maintains multiple physical stores within this judicial district, including 

two within Waco itself at 1803 North I-35 Bellmead and 5605 West Waco Drive. 

JURISDICTION AND VENUE 

8. H-E-B brings this action for patent infringement, trade dress infringement, unfair 

competition and false designation of origin, trade dress dilution, misappropriation, and unjust 

enrichment. This action arises under the Patent Act, 35 U.S.C. § 1, et seq., the Trademark Act of 

1946, 15 U.S.C. § 1051, et seq. (“the Lanham Act”), federal common law, the Texas Business & 

Commerce Code, and state common law, including the law of Texas. 

9. This Court has subject matter jurisdiction over this action pursuant to at least 

15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331, 1338, and 1367(a). 

10. Venue is proper in this District pursuant to at least 28 U.S.C. §§ 1391(b) and (c) 

and § 1400(b). 

11. This Court has personal jurisdiction over nICE and SSMG because, inter alia, 

nICE and SSMG are doing business in the State of Texas. On information and belief, nICE and 

SSMG have advertised, promoted, offered for sale, sold, and/or distributed, and continues to 

advertise, promote, offer for sale, sell, and/or distribute infringing products to customers and 

potential customers in this judicial district. H-E-B, its customers, and its potential customers 

reside in the State of Texas, including in this judicial district and therefore nICE’s and SSMG’s 

acts giving rise to this lawsuit and the harm H-E-B has suffered have both occurred in this 

judicial district. 

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12. This Court has personal jurisdiction over Kuer Plastic, Kuer Kayak, and Kuer 

Outdoor because, inter alia, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are doing business in 

the State of Texas. On information and belief, Kuer Plastic, Kuer Kayak, and Kuer Outdoor 

have advertised, promoted, offered for sale, sold, and/or distributed, and continue to advertise, 

promote, offer for sale, sell, and/or distribute infringing products to customers and potential 

customers in this judicial district. H-E-B, its customers, and its potential customers reside in the 

State of Texas, including in this judicial district and therefore Kuer Plastic’s, Kuer Kayak’s, and 

Kuer Outdoor’s acts giving rise to this lawsuit and the harm H-E-B has suffered have both 

occurred in this judicial district. 

13. This Court has personal jurisdiction over Home Depot because, inter alia, Home 

Depot is doing business in the State of Texas including maintaining regular and established 

places of business within this judicial district. On information and belief, Home Depot has 

advertised, promoted, offered for sale, sold, and/or distributed, and continues to advertise, 

promote, offer for sale, sell, and/or distribute infringing products to customers and potential 

customers in this judicial district. H-E-B, its customers, and its potential customers reside in the 

State of Texas, including in this judicial district and therefore Home Depot’s acts giving rise to 

this lawsuit and the harm H-E-B has suffered have both occurred in this judicial district. 

FACTUAL ALLEGATIONS UNDERLYING ALL CLAIMS 

H-E-B’s Innovation, Quality, and Generosity Have Earned It a Special Reputation 

in the State of Texas. 

14. H-E-B dates back to November 26, 1905, when Florence Butt opened the C.C. 

Butts Grocery store in Kerrville, Texas to support her ailing husband and three small children. 

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15. Today, H-E-B has grown to over 400 stores in Texas and Mexico, employing over 

116,000 partners. H-E-B is the largest privately-held employer in the state of Texas and one of 

the largest privately-held retailers in the nation. 

16. Innovation has always been one of H-E-B’s core values. In 1916, that took the 

form of adding a Model T Ford to make deliveries faster and more efficient. Today, H-E-B has 

established an 81,000-square foot innovation laboratory in East Austin, Texas, to continue 

developing the next generation of grocery technology. 

17. Another core value at H-E-B is quality. From the time H-E-B began offering its 

own branded products in the early 1990s, it has promised the quality of its H-E-B-branded goods 

will always be equal to or exceed those of other brands. 

18. These investments and efforts have earned H-E-B a sterling reputation in the State 

of Texas. 

19. For example, H-E-B ranked in the top 5 in composite customer loyalty in a 2018 

MarketForce study of Favorite Grocery Chains. https://www.marketforce.com/2018-americasfavorite-grocery-stores. 

20. Similarly, in The Harris Poll’s 2018 annual assessment of “Reputational Quality,” 

H-E-B entered at #6, ahead of household names like UPS, Microsoft, and Nike. 

https://theharrispoll.com/wp-content/uploads/2018/12/2018-HARRIS-POLL-RQ_2-SummaryReport_FNL.pdf. 

21. Most recently, on January 8, 2020, H-E-B was named the top U.S. grocery retailer 

in the third annual dunnhumby Retailer Preference Index study. dunnhumby attributed H-E-B’s 

success in part to H-E-B’s “sustained focus and excellence on...private brand” products like the 

KODI coolers at issue. 

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22. H-E-B’s reputation has been burnished further by its good acts within the 

community. 

23. Hunger relief has been a key focus for H-E-B since its founding. In 2018 alone, 

H-E-B donated more than 32 million pounds of food to Texas and Mexico food banks, equal to 

over 25 million meals. 

24. Every year, H-E-B gives away $700,000 in cash prices to teachers, principals, and 

school districts to reward excellence in education. 

25. H-E-B is a community partner when disaster strikes, routinely donating financial 

support, emergency supplies, drinking water and food, as well as coordinating assistance efforts 

to assist those affected by hurricanes and the like. 

H-E-B Identifies the Need for a Better Cooler and Acquires the ’543 Patent Family 

26. H-E-B’s Senior Buyer for Grills and Coolers is Brett Ramsey. Mr. Ramsey 

joined H-E-B in 1977 and has worked there continuously for forty-two years. 

27. An avid hunter and fisherman, Mr. Ramsey personally spends a great deal of time 

in the outdoors using cooler products. 

28. While attempting to operate a heavy-duty cooler aboard his brother-in-law’s boat, 

Mr. Ramsey found the cooler frustrating and went looking for better technology. 

29. As it turned out, two inventors—Eric Wooldridge and Daniel Bailey of Stanford, 

Kentucky—had created improved cooler technology. 

30. On July 31, 2012, Messrs. Wooldridge and Bailey filed U.S. Patent Application 

No. 13/562,828, entitled “Vacuum Cooler.” 

31. U.S. Patent Application No. 13/562,828 eventually issued as U.S. Patent 

No. 9,296,543 on March 29, 2016 (“the ’543 patent”). 

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32. On October 8, 2015—after U.S. Patent Application No. 13/562,828 was filed but 

before it issued as the ’543 patent—H-E-B acquired all right, title, and interest in that application 

from Messrs. Wooldridge and Bailey for valid consideration. 

33. As a result of the acquisition, U.S. Patent Application No. 13/562,828 was 

assigned to H-E-B. That assignment was duly recorded at the United States Patent & Trademark 

Office on October 21, 2015. 

34. On February 18, 2016, U.S. Patent Application No. 15/046,919 was filed with the 

United States Patent & Trademark Office. This application was a continuation of U.S. Patent 

Application No. 13/562,828 and claims priority thereto. 

35. On April 3, 2018, U.S. Patent Application No. 15/046,919 issued as U.S. Patent 

No. 9,932,165 (“the ’165 patent”). 

36. On February 15, 2018, U.S. Patent Application No. 15/897,348 was filed with the 

United States Patent & Trademark Office. 

37. This application was a continuation of U.S. Patent Application No. 15/046,919 

and claims priority through that application back to the July 31, 2012 filing date for U.S. Patent 

Application No. 13/562,828. 

38. On November 5, 2019, U.S. Patent Application No. 15/897,348 issued as 

U.S. Patent No. 10,464,734 (“the ’734 patent”). 

39. On April 23, 2019, U.S. Patent Application No. 16/392,438 was filed with the 

United States Patent & Trademark Office. 

40. This application was a continuation of U.S. Patent Application No. 15/897,348 

and claims priority through that application back to the July 31, 2012 filing date for U.S. Patent 

Application No. 13/562,828. 

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41. On November 26, 2019, U.S. Patent Application No. 16/392,438 issued as 

U.S. Patent No. 10,486,887 (“the ’887 patent”). 

42. On April 24, 2019, U.S. Patent Application No. 16/393,844 was filed with the 

United States Patent & Trademark Office. 

43. This application was a continuation of U.S. Patent Application No. 15/897,348 

and claims priority through that application back to the July 31, 2012 filing date for U.S. Patent 

Application No. 13/562,828. 

44. On November 26, 2019, U.S. Patent Application No. 16/393,844 issued as 

U.S. Patent No. 10,486,888 (“the ’888 patent”). 

45. Collectively, these patents claim various embodiments of a pressure release 

system for a vacuum cooler and improve the usability of the cooler. 

46. H-E-B sells 20-quart, 38-quart, 75-quart, and 125-quart models of KODI coolers 

in various colors, all using the inventions embodied in the patents described herein (“the KODI 

coolers”). 

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 KODI, 20-quart cooler. 

 KODI, 38-quart cooler. 

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 KODI, 75-quart cooler. 

 KODI, 125-quart cooler. 

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KODI Coolers Also Feature Unique, Protected Trade Dress 

47. In addition to the functional elements related to the asserted patents, H-E-B has 

also established a distinctive trade dress for the KODI coolers. 

48. The following is a photograph of the front view of a KODI cooler: 

49. All the KODI coolers feature a round pressure release button in the same location, 

i.e., inside a circular indentation, just below the lid and offset to the left. 

50. The location and shape of the button, the shape of the indentation, and their 

consistency are all identifying aesthetic choices that are part of the KODI cooler trade dress. 

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51. While the KODI coolers come in a number of body colors, the button is 

consistently presented in H-E-B red to reference the trademarked H-E-B logo. 

52. H-E-B’s logo—including its red and white colors—is the subject of Registered 

Trademark No. 5,506,755. 

53. The color of the button is an identifying aesthetic choice that is part of the KODI 

cooler trade dress. 

54. The H-E-B red pressure release button on the KODI coolers is always surrounded 

by a black rosette. 

55. While the rosette is actually the top of a hexagonal nut that allows easy 

replacement of the button and/or valve assembly if necessary, the shape and color of the rosette 

are intended to match the other accessories on the cooler while providing a direct contrast for the 

H-E-B red color of the button. 

56. The shape and color of the rosette are identifying aesthetic choices that are part of 

the KODI cooler trade dress. 

57. The distinctive H-E-B red button surrounded by the black rosette is particularly 

important for identifying KODI and H-E-B as their source because the exterior of KODI coolers 

serves as the product’s packaging. The KODI cooler trade dress is on full display to consumers 

in-store and during the shopping experience to identify that the coolers are made and sold with 

the high quality, standards, and reputation attributable to KODI and H-E-B. 

H-E-B Has Spent Considerable Resources to Promote KODI Coolers, Which 

Provide Synergistic Benefits to H-E-B Beyond Mere Sales 

58. H-E-B has gone to great lengths and expended significant time and resources to 

promote the KODI brand generally and KODI coolers specifically. 

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59. While no one person at H-E-B works on KODI coolers exclusively, as many as 

thirty to forty people have worked on issues related to the coolers over the years. 

60. H-E-B spends approximately $300,000 per year to perform exclusive marketing 

of the KODI brand through both traditional media—e.g., video, TV, print, and radio—and social 

media. 

61. KODI-branded items are also the subject of additional marketing spend when they 

are combined with other products for TV spots and other special events. 

62. As one example, commercial airtime during the National Football League’s 

annual Super Bowl is considered among the most precious advertising space there is. H-E-B 

bought and aired a 60-second commercial during the 2019 Super Bowl that featured the KODI 

cooler. 

63. The Super Bowl ad for KODI coolers continued to air in Texas markets 

throughout February of 2019. 

64. The Super Bowl ad for KODI coolers is memorialized at H-E-B’s Facebook page 

at: https://www.facebook.com/HEB/videos/2474762916084547/. 

65. The Super Bowl ad for KODI coolers features H-E-B’s protected intellectual 

property and the value it provides to the KODI coolers. 

66. The KODI cooler in the ad is first shown floating on the surf, which can only 

happen because of the vacuum seal when the cooler is closed. This is reinforced when a 

castaway opens the cooler to find all the food inside—including refrigerated items like 

tomahawk steaks—still cold and consumable. 

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67. Multiple shots of the KODI cooler in the Super Bowl ad depict the circular H-E-B 

red pressure release button surrounded by the black rosette in its consistent position, i.e., offset 

from center inside a circular indentation in the front side of the cooler. 

68. Another example of H-E-B’s investment in advertising for the KODI brand is a 

television commercial entitled “Tough as Texas” that features Mr. Ramsey explaining how 

KODI coolers are high performing coolers made with the highest quality and developed by 

H-E-B. 

69. The “Tough as Texas” ad for KODI coolers is memorialized at: 

http://www.heb.com/static-page/kodi. 

70. The “Tough as Texas” commercial features H-E-B’s protected intellectual 

property and the value it provides to the KODI coolers. 

71. For example, the “Tough as Texas” commercial shows the patented vacuum 

release button being pressed to release pressure inside the KODI cooler and make it easier to 

open. 

72. Similarly, the “Tough as Texas” commercial shows multiple shots of the 

distinguishing trade dress for the KODI coolers. There are multiple shots of the H-E-B red 

button surrounded by the black rosette offset from center on the front face of the cooler. 

73. Through H-E-B’s extensive and continuous use and promotion, the H-E-B red 

button surrounded by the black rosette on the KODI cooler has become a well-known indicator 

of the origin and quality of H-E-B’s KODI cooler products. 

74. On information and belief, the H-E-B red button surrounded by the black rosette 

has acquired substantial secondary meaning in the marketplace and become famous. 

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75. As a result of H-E-B’s efforts and the highly valuable goodwill and secondary 

meaning the cooler’s H-E-B red button surrounded by the black rosette has acquired, H-E-B 

owns trade dress rights in the appearances and image of the KODI coolers which customers have 

come to uniquely associate with H-E-B. 

76. H-E-B has enjoyed significant sales of the KODI coolers to its customers 

throughout the State of Texas and within this judicial district. 

77. At several H-E-B locations, including some within this judicial district, H-E-B 

has established a “store within a store” concept for the KODI brand. This section of the store is 

devoted entirely to coolers and other merchandise related to using the coolers. 

78. Through the functional relationship between this merchandise and the KODI 

coolers, sales of the coolers themselves lead to convoyed sales that result in additional revenue. 

When potential KODI customers are directed elsewhere, H-E-B loses not only the cooler sales 

themselves, but this additional, convoyed sales revenue. 

79. When customers visit an H-E-B store due to the presence of KODI coolers, those 

customers may also purchase additional items that are wholly unrelated to the coolers. Again, if 

those customers are directed elsewhere for non-KODI coolers, H-E-B loses such additional 

revenue and Defendants receive such revenue unjustly. 

80. By infringing H-E-B’s intellectual property rights in the KODI coolers, 

Defendants have reduced H-E-B’s sales of the KODI coolers, diminished H-E-B’s convoyed 

sales of other products associated with the KODI coolers, and inflicted upon H-E-B reputational 

harm and other injuries that cannot be compensated solely with money damages. 

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Infringement of H-E-B’s KODI Cooler Intellectual Property by “nICE Coolers” 

81. Defendants have purposefully advertised, promoted, offered for sale, sold, and 

distributed, and continues to advertise, promote, offer for sale, sell, and distribute coolers that 

violate H-E-B’s intellectual property rights. 

82. Defendants have conducted such activities without a license or any other 

authorization from H-E-B. 

83. nICE and SSMG advertise at least two sets of hard-sided coolers—the “G2” 

group and the “G3” group—on its website: http://www.nicetumblers.com/coolers/. 

84. The website http://www.nicetumblers.com/coolers/ is viewable within this 

judicial district and, on information and belief, has been viewed by people within this judicial 

district. 

85. The nICE G2 coolers come in three sizes that generally track the sizes of KODI 

coolers offered by H-E-B: 20-quart, 45-quart, and 75-quart. 

86. The nICE G3 coolers come in four sizes: 20-quart, 50-quart, and 75-quart, and 

110-quart. 

87. As discussed in more detail below, the nICE G2 and G3 coolers all include a 

pressure release button that eases the pressure inside the cooler to allow for easier opening. 

88. As discussed in more detail below, the nICE G2 and G3 coolers all utilize the 

inventions of the patents-in-suit held by H-E-B. 

89. In addition, the nICE G2 and G3 coolers have copied and/or mimic the trade dress 

of the H-E-B KODI coolers. 

90. The photographs below juxtapose comparable views of a KODI 20-quart cooler 

and a nICE G2 20-quart cooler. 

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91. The nICE cooler is virtually indistinguishable from the H-E-B KODI cooler 

because of its direct and deliberate copying of H-E-B’s trade dress. 

92. Both coolers have a circular indentation on the front face, offset to the left from 

center, just below the lid. 

93. In those indentations, both coolers have a circular red button. 

94. On both coolers, the circular red button is surrounded by a black rosette. 

95. Individually and collectively, these similarities render the nICE G2 and G3 

coolers confusingly similar to H-E-B’s KODI coolers. 

96. Consequently, there is a strong likelihood of confusion between the nICE G2 and 

G3 coolers on the one hand and H-E-B’s KODI coolers on the other. 

97. Such confusion threatens to create the false and misleading impression that the 

infringing coolers are manufactured by, authorized by, or otherwise associated with H-E-B. 

Such confusion also threatens to erode the public’s exclusive identification of the KODI cooler 

design elements with H-E-B, to lessen the ability of the trade dress to identify and distinguish 

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H-E-B’s KODI coolers, and to associate H-E-B’s distinctive KODI cooler trade dress with 

products of inferior quality. 

98. On information and belief, the nICE G2 and G3 coolers are manufactured by one 

or more of Kuer Plastic, Kuer Kayak, and/or Kuer Outdoor at various factories in China. 

99. On information and belief, the nICE G2 and G3 coolers are imported into the 

United States by some combination of nICE, SSMG, Kuer Plastic, Kuer Kayak, Kuer Outdoor, 

and/or Home Depot. 

100. On information and belief, after importation, the nICE G2 and G3 coolers are 

shipped to various locations around the United States including inter alia into this judicial 

district by some combination of nICE, SSMG, Kuer Plastic, Kuer Kayak, Kuer Outdoor, and/or 

Home Depot. 

101. nICE and SSMG maintain a sales website that reaches into this judicial district for 

the purposes of marketing and advertising its G2 and G3 cooler products. 

102. nICE and SSMG sell the G2 and G3 coolers through retailers including Home 

Depot. 

103. Home Depot offers for sale and sells the nICE G2 and G3 coolers, including at its 

physical locations in this judicial district. 

104. H-E-B used its KODI cooler trade dress extensively and continuously before 

Defendants began advertising, importing, offering to sell, selling, or distributing the infringing 

G2 and G3 cooler products. 

105. Moreover, H-E-B’s KODI cooler trade dress has become famous and acquired 

secondary meaning in the State of Texas generally and in this judicial district in particular before 

Defendants began their unauthorized use of the trade dress. 

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106. As such, Defendants actions are unfair and unlawful. Defendants have received 

tangible and intangible benefit from falsely associating their infringing products with H-E-B’s 

KODI brand coolers. Defendants actions also threaten to give them a special advantage in 

competition with H-E-B as Defendants were not burdened by the expenses of time, money, and 

effort that H-E-B was forced to undertake to develop the KODI brand and trade dress. 

107. Defendants’ actions also threaten to injure H-E-B’s reputation in the State of 

Texas and within this judicial district. 

108. On May 3, 2018, H-E-B’s counsel wrote to nICE and SSMG. 

109. H-E-B’s May 3, 2018 letter notified nICE and SSMG of the ’165 patent and 

identified how the nICE coolers appeared to infringe. 

110. H-E-B’s May 3, 2018 letter asked that nICE and SSMG immediately cease and 

desist from making, using, selling, or offering to sell the infringing nICE coolers. 

111. Despite the notice conveyed by H-E-B’s May 3, 2018 letter, nICE and SSMG 

have continued their infringing activities. 

112. On information and belief, nICE and SSMG have informed their manufacturers, 

including Ningbo Kuer Plastic Technology Co., Ltd.; Ningbo Kuer Kayak Co., Ltd.; Ningbo 

Kuer Outdoor Products Co., Ltd., about H-E-B’s ’165 patent. 

113. On information and belief, once aware of the ’165 patent, nICE, SSMG, and their 

manufacturers could have, should have, and likely did monitor public records for additional 

patents that could issue from that same family. 

114. On information and belief, nICE, SSMG, and their manufacturers are aware of the 

patents that have now issued as continuation of the ’165 patent, including the ’734 patent, the 

’887 patent, and the ’888 patent. 

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Infringement of H-E-B’s KODI Cooler Intellectual Property by Kuer Coolers 

115. In addition to making, importing, and selling nICE coolers, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor sell their own brand of coolers to consumers as well as unbranded 

coolers to other cooler brands/resellers. 

116. Kuer Plastic, Kuer Kayak, and Kuer Outdoor have purposefully advertised, 

promoted, offered for sale, sold, and distributed, and continue to advertise, promote, offer for 

sale, sell, and distribute Kuer coolers even though such coolers also violate H-E-B’s intellectual 

property rights. 

117. Kuer Plastic, Kuer Kayak, and Kuer Outdoor have conducted such activities 

without a license or any other authorization from H-E-B. 

118. The Kuer coolers also come in various sizes, including 20-quart, 35-quart, 

45-quart, 60-quart, 70-quart, 75-quart, and 110-quart. 

119. As discussed in more detail below, the Kuer coolers all include a pressure release 

button that eases the pressure inside the cooler to allow for easier opening. 

120. As discussed in more detail below, the Kuer coolers all utilize the inventions of 

the patents-in-suit held by H-E-B. 

121. In addition, the Kuer coolers have copied and/or mimic the trade dress of the 

H-E-B KODI coolers. 

122. The photographs below juxtapose comparable views of a KODI 20-quart cooler 

and a Kuer 20-quart cooler. 

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123. Both coolers have a circular indentation on the front face, just below the lid. 

124. In those indentations, both coolers have a circular red button. 

125. On both coolers, the circular red button is surrounded by a black rosette. 

126. Individually and collectively, these similarities render the Kuer coolers 

confusingly similar to H-E-B’s KODI coolers. 

127. Consequently, there is a strong likelihood of confusion between the Kuer coolers 

on the one hand and H-E-B’s KODI coolers on the other. 

128. Such confusion threatens to create the false and misleading impression that the 

infringing coolers are manufactured by, authorized by, or otherwise associated with H-E-B. 

Such confusion also threatens to erode the public’s exclusive identification of the KODI cooler 

design elements with H-E-B, to lessen the ability of the trade dress to identify and distinguish 

H-E-B’s KODI coolers, and to associate H-E-B’s distinctive KODI cooler trade dress with 

products of inferior quality. 

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129. On information and belief, the Kuer coolers are manufactured by one or more of 

Kuer Plastic, Kuer Kayak, and/or Kuer Outdoor at various factories in China. 

130. On information and belief, the Kuer coolers are imported into the United States by 

some combination of Kuer Plastic, Kuer Kayak, Kuer Outdoor, and/or third-party importers 

contracted by Kuer Plastic, Kuer Kayak, and/or Kuer Outdoor. 

131. On information and belief, after importation, the Kuer coolers are shipped to 

various locations around the United States including inter alia into this judicial district by some 

combination of Kuer Plastic, Kuer Kayak, Kuer Outdoor, and/or third-party shippers contracted 

by Kuer Plastic, Kuer Kayak, and/or Kuer Outdoor. 

132. Kuer Plastic, Kuer Kayak, and Kuer Outdoor maintain sales websites that reach 

into this judicial district for the purposes of marketing and advertising its cooler products. 

133. Kuer Plastic, Kuer Kayak, and Kuer Outdoor offer for sale and sell the Kuer 

coolers in this judicial district. 

134. H-E-B used its KODI cooler trade dress extensively and continuously before 

Defendants began advertising, importing, offering to sell, selling, or distributing the infringing 

Kuer cooler products. 

135. Moreover, H-E-B’s KODI cooler trade dress has become famous and acquired 

secondary meaning in the State of Texas generally and in this judicial district in particular before 

Defendants began their unauthorized use of the trade dress. 

136. On March 8, 2016, H-E-B’s counsel wrote to Kuer Outdoors LLC which, on 

information and belief, is a predecessor-in-interest and/or related to one or more of Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor. 

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137. H-E-B’s March 8, 2016 letter notified Kuer Outdoors LLC of H-E-B’s protected 

valve technology and trade dress and identified how coolers on Kuer Outdoors LLC’s website 

appeared to infringe. 

138. H-E-B’s March 8, 2016 letter asked that Kuer Outdoors LLC immediately cease 

and desist from any infringing activity. 

139. While Kuer Outdoors LLC did not respond in writing to H-E-B’s March 8, 2016 

letter, Kuer Outdoors LLC did modify and then take down its website. 

140. Accordingly, on information and belief, the infringement by Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor has been knowing, willful, and deliberate. 

141. Defendants actions are unfair and unlawful. Defendants have received tangible 

and intangible benefit from falsely associating their infringing products with H-E-B’s KODI 

brand coolers. Defendants actions also threaten to give them a special advantage in competition 

with H-E-B as Defendants were not burdened by the expenses of time, money, and effort that 

H-E-B was forced to undertake to develop the KODI brand, innovative technology, and trade 

dress. 

142. Defendants’ actions also threaten to injure H-E-B’s reputation in the State of 

Texas and within this judicial district. 

Infringement of H-E-B’s KODI Cooler Intellectual Property by “Everbilt Coolers” 

143. In addition to selling nICE coolers in its stores, Home Depot has created its own 

brand of coolers called “Everbilt.” 

144. Home Depot has purposefully advertised, promoted, offered for sale, sold, and 

distributed, and continues to advertise, promote, offer for sale, sell, and distribute Everbilt 

coolers even though such coolers also violate H-E-B’s intellectual property rights. 

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145. Home Depot has conducted such activities without a license or any other 

authorization from H-E-B. 

146. The Home Depot Everbilt coolers come in four sizes that generally track those 

offered by H-E-B: 26-quart, 36-quart, 52-quart, and 73-quart. 

147. As discussed in more detail below, the Home Depot Everbilt coolers all include a 

pressure release button that eases the pressure inside the cooler to allow for easier opening. 

148. As discussed in more detail below, the Home Depot Everbilt coolers all utilize the 

inventions of the patents-in-suit held by H-E-B. 

149. In addition, the Home Depot Everbilt coolers have copied and/or mimic the trade 

dress of the H-E-B KODI coolers. 

150. The photographs below juxtapose comparable views of a KODI 20-quart cooler 

and a Home Depot Everbilt 26-quart cooler. 

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151. Both coolers have a circular indentation on the front face, just below the lid. 

152. In those indentations, both coolers have a circular red button. 

153. On both coolers, the circular red button is surrounded by a black rosette. 

154. Individually and collectively, these similarities render the Home Depot Everbilt 

coolers confusingly similar to H-E-B’s KODI coolers. 

155. Consequently, there is a strong likelihood of confusion between the Home Depot 

Everbilt coolers on the one hand and H-E-B’s KODI coolers on the other. 

156. Such confusion threatens to create the false and misleading impression that the 

infringing coolers are manufactured by, authorized by, or otherwise associated with H-E-B. 

Such confusion also threatens to erode the public’s exclusive identification of the KODI cooler 

design elements with H-E-B, to lessen the ability of the trade dress to identify and distinguish 

H-E-B’s KODI coolers, and to associate H-E-B’s distinctive KODI cooler trade dress with 

products of inferior quality. 

157. On information and belief, the Home Depot Everbilt coolers are manufactured by 

one or more of Kuer Plastic, Kuer Kayak, and/or Kuer Outdoor at various factories in China. 

158. On information and belief, the Home Depot Everbilt coolers are imported into the 

United States by some combination of Kuer Plastic, Kuer Kayak, Kuer Outdoor, and/or Home 

Depot. 

159. On information and belief, after importation, the Home Depot Everbilt coolers are 

shipped to various locations around the United States including inter alia into this judicial 

district by some combination of Kuer Plastic, Kuer Kayak, Kuer Outdoor, and/or Home Depot. 

160. Home Depot maintains a sales website that reaches into this judicial district for 

the purposes of marketing and advertising its Everbilt cooler products. 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 26 of 70
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161. Home Depot offers for sale and sells the Everbilt coolers, including at its physical 

locations in this judicial district. 

162. H-E-B used its KODI cooler trade dress extensively and continuously before 

Defendants began advertising, importing, offering to sell, selling, or distributing the infringing 

Everbilt cooler products. 

163. Moreover, H-E-B’s KODI cooler trade dress has become famous and acquired 

secondary meaning in the State of Texas generally and in this judicial district in particular before 

Defendants began their unauthorized use of the trade dress. 

164. As such, Defendants actions are unfair and unlawful. Defendants have received 

tangible and intangible benefit from falsely associating their infringing products with H-E-B’s 

KODI brand coolers. Defendants actions also threaten to give them a special advantage in 

competition with H-E-B as Defendants were not burdened by the expenses of time, money, and 

effort that H-E-B was forced to undertake to develop the KODI brand and trade dress. 

165. Defendants’ actions also threaten to injure H-E-B’s reputation in the State of 

Texas and within this judicial district. 

Count 1: Infringement of U.S. Patent No. 9,932,165 

166. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

167. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, 

use, sell, offer for sale, and/or import in/into the United States various cooler products. 

168. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, 

use, sell, offer for sale, and/or import cooler products including but not limited to the following 

exemplary models: nICE20, G2 series; nICE45, G2 series; nICE75, G2 series; nICE20, G3 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 27 of 70
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series; nICE50, G3 series; nICE75, G3 series; and nICE110, G3 series (collectively, the “nICE 

Product(s)”). For example, on information and belief: Kuer Plastic, Kuer Kayak, and Kuer 

Outdoor make, use, sell, offer for sale, and import the nICE Products; nICE and SSMG use, sell, 

offer for sale, and import the nICE Products; and Home Depot sells, offers for sale, and imports 

the nICE Products. 

169. Home Depot makes, uses, sells, offers for sale, and/or imports cooler products 

including but not limited to the following exemplary models: Everbilt 26-quart highperformance cooler with lockable lid; Everbilt 36-quart high-performance cooler with lockable 

lid; Everbilt 52-quart high-performance cooler with lockable lid; and Everbilt 73 quart highperformance cooler with lockable lid (collectively, the “Home Depot Product(s)”). 

170. Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, use, sell, offer for sale, and/or 

import cooler products including but not limited to the following exemplary models: Kuer-A 

cooler 20QT; Kuer-A cooler 45QT; Kuer-A cooler 75QT; Kuer-B cooler 10QT; Kuer-B cooler 

20QT; Kuer-B cooler 45QT; Kuer-B cooler 70QT; Kuer-B cooler 75QT; Kuer-B cooler 110QT 

with wheels; Kuer-B cooler 110QT; Kuer-C cooler 20QT; Kuer-C cooler 35QT; Kuer-C cooler 

45QT; Kuer-C cooler 60QT; Kuer-C cooler 70QT with wheels; Kuer-C cooler 75QT; Kuer-D 

cooler 20QT; Kuer-D cooler 45QT; and Kuer-D cooler 75QT (collectively, the “Kuer 

Product(s)”). 

171. On information and belief, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, 

and Kuer Outdoor have directly infringed and continue to directly infringe the ’165 patent by, 

among other things, making, using, selling, offering for sale, and/or importing cooler products 

in/into the United States, including but not limited to the nICE Products, the Home Depot 

Products, and/or the Kuer Products. 

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172. On information and belief, one or more nICE Products include an enclosure 

defined by at least one wall and a lid, wherein the lid forms a relatively airtight seal with a wall 

of the nICE Product when in a closed position, wherein the lid and each wall that define the 

enclosure are insulated, and wherein the enclosure is capable of maintaining a sufficient 

temperature gradient between an inside of the enclosure and an outside of the enclosure such that 

at least a partial vacuum forms within the enclosure due to the temperature gradient. 

173. On information and belief, one or more nICE Products include a vacuum release 

assembly disposed in one of the walls of the nICE Product, wherein the vacuum release assembly 

is capable of reducing a pressure differential between the enclosure and the outside of the nICE 

Product. 

174. On information and belief, one or more Home Depot Products include an 

enclosure defined by at least one wall and a lid, wherein the lid forms a relatively airtight seal 

with a wall of the Home Depot Product when in a closed position, wherein the lid and each wall 

that defines the enclosure are insulated, and wherein the enclosure is capable of maintaining a 

sufficient temperature gradient between an inside of the enclosure and an outside of the 

enclosure such that at least a partial vacuum forms within the enclosure due to the temperature 

gradient. 

175. On information and belief, one or more Home Depot Products include a vacuum 

release assembly disposed in one of the walls of the Home Depot Product, wherein the vacuum 

release assembly is capable of reducing a pressure differential between the enclosure and the 

outside of the Home Depot Product. 

176. On information and belief, one or more Kuer Products include an enclosure 

defined by at least one wall and a lid, wherein the lid forms a relatively airtight seal with a wall 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 29 of 70
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of the Kuer Product when in a closed position, wherein the lid and each wall that defines the 

enclosure are insulated, and wherein the enclosure is capable of maintaining a sufficient 

temperature gradient between an inside of the enclosure and an outside of the enclosure such that 

at least a partial vacuum forms within the enclosure due to the temperature gradient. 

177. On information and belief, one or more Kuer Products include a vacuum release 

assembly disposed in one of the walls of the Kuer Product, wherein the vacuum release assembly 

is capable of reducing a pressure differential between the enclosure and the outside of the Kuer 

Product. 

178. By making, using, testing, offering for sale, selling, and/or importing infringing 

cooler products, including but not limited to the nICE Products, the Home Depot Products, 

and/or the Kuer Products, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer 

Outdoor have injured H-E-B and are liable to H-E-B for directly infringing one or more claims 

of the ’165 patent, including at least claim 1, pursuant to 35 U.S.C. § 271(a). 

179. On information and belief, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, 

and Kuer Outdoor also indirectly infringe the ’165 patent by actively inducing infringement 

under 35 U.S.C. § 271(b). 

180. nICE and SSMG have had knowledge of the ’165 patent since at least May 3, 

2018. Further, nICE and SSMG have had knowledge of the ’165 patent since at least service of 

this Complaint. On information and belief, nICE and SSMG knew of the ’165 patent and knew 

of their infringement, including by way of this lawsuit. 

181. On information and belief, nICE and SSMG intended to induce patent 

infringement by importers, third-party retailers, and users of the nICE Products and had 

knowledge that the inducing acts would cause infringement or was willfully blind to the 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 30 of 70
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possibility that its inducing acts would cause infringement. nICE and SSMG specifically 

intended and were aware that making, use, sale, offer for sale, and/or import of the nICE 

Products would infringe the ’165 patent. nICE and SSMG performed the acts that constitute 

induced infringement with knowledge of the ’165 patent and with knowledge that the induced 

acts would constitute infringement. For example, on information and belief, nICE and SSMG 

contract with third-party importers for import of the nICE Products into the United States. By 

contracting in a manner that would cause third-party importers to directly infringe one or more 

claims of the ’165 patent, including at least claim 1, nICE and SSMG specifically intended to 

induce infringement of the ’165 patent. As a further example, on information and belief, nICE 

and SSMG contract with third-party retailers for sale and for offer for sale of the nICE Products 

by the third-party retailers. By contracting in a manner that would cause third-party retailers to 

directly infringe one or more claims of the ’165 patent, including at least claim 1, nICE and 

SSMG specifically intended to induce infringement of the ’165 patent. As a further example, 

nICE and SSMG sell and offer for sale the nICE Products to users, including with product 

manuals that provide instructions on use of the nICE Products. By selling, offering for sale, 

and/or providing product documentation for the nICE Products in a manner that would cause 

users to directly infringe one or more claims of the ’165 patent, including at least claim 1, nICE 

and SSMG specifically intended to induce infringement of the ’165 patent. Accordingly, nICE 

and SSMG have induced and continues to induce third-party importers, retailers, and users to 

import, sell, offer for sale, and use the nICE Products in a manner that directly infringes the 

’165 patent, knowing that such import, sale, offer for sale, and use constitute direct infringement 

of the ’165 patent. 

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182. Home Depot has had knowledge of the ’165 patent since at least service of this 

Complaint. On information and belief, Home Depot knew of the ’165 patent and knew of its 

infringement, including by way of this lawsuit. 

183. On information and belief, Home Depot intended to induce patent infringement 

by importers, third-party retailers, and users of the nICE Products and Home Depot Products and 

had knowledge that the inducing acts would cause infringement or was willfully blind to the 

possibility that its inducing acts would cause infringement. Home Depot specifically intended 

and was aware that making, use, sale, offer for sale, and/or import of the nICE Products and 

Home Depot Products would infringe the ’165 patent. Home Depot performed the acts that 

constitute induced infringement with knowledge of the ’165 patent and with knowledge that the 

induced acts would constitute infringement. For example, on information and belief, Home 

Depot contracts with third-party importers for import of the nICE Products and Home Depot 

Products into the United States. By contracting in a manner that would cause third-party 

importers to directly infringe one or more claims of the ’165 patent, including at least claim 1, 

Home Depot specifically intended to induce infringement of the ’165 patent. As a further 

example, Home Depot sells and offers for sale the nICE Products and Home Depot Products to 

users, including with product manuals that provide instructions on use of the nICE Products and 

Home Depot Products. By selling, offering for sale, and/or providing product documentation for 

the nICE Products and Home Depot Products in a manner that would cause users to directly 

infringe one or more claims of the ’165 patent, including at least claim 1, Home Depot 

specifically intended to induce infringement of the ’165 patent. Accordingly, Home Depot has 

induced and continues to induce third-party importers and users to import and use the nICE 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 32 of 70
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Products and Home Depot Products in a manner that directly infringes the ’165 patent, knowing 

that such import and use constitute direct infringement of the ’165 patent. 

184. Kuer Plastic, Kuer Kayak, and Kuer Outdoor have had knowledge of the 

’165 patent since at least service of this Complaint. On information and belief, Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor knew of the ’165 patent and knew of their infringement, 

including by way of this lawsuit. 

185. On information and belief, Kuer Plastic, Kuer Kayak, and Kuer Outdoor intended 

to induce patent infringement by importers, third-party retailers, and users of the nICE Products 

and Kuer Products and had knowledge that the inducing acts would cause infringement or were 

willfully blind to the possibility that its inducing acts would cause infringement. Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor specifically intended and were aware that making, use, sale, 

offer for sale, and/or import of the nICE Products and Kuer Products would infringe the 

’165 patent. Kuer Plastic, Kuer Kayak, and Kuer Outdoor performed the acts that constitute 

induced infringement with knowledge of the ’165 patent and with knowledge that the induced 

acts would constitute infringement. For example, on information and belief, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor contracts with third-party importers for import of the nICE Products 

and Kuer Products into the United States. By contracting in a manner that would cause thirdparty importers to directly infringe one or more claims of the ’165 patent, including at least claim 

1, Kuer Plastic, Kuer Kayak, and Kuer Outdoor specifically intended to induce infringement of 

the ’165 patent. As a further example, Kuer Plastic, Kuer Kayak, and Kuer Outdoor sell and 

offer for sale the Kuer Products to users, including with product manuals that provide 

instructions on use of the Kuer Products. By selling, offering for sale, and/or providing product 

documentation for the Kuer Products in a manner that would cause users to directly infringe one 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 33 of 70
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or more claims of the ’165 patent, including at least claim 1, Kuer Plastic, Kuer Kayak, and Kuer 

Outdoor specifically intended to induce infringement of the ’165 patent. Accordingly, Kuer 

Plastic, Kuer Kayak, and Kuer Outdoor have induced and continue to induce third-party 

importers, retailers, and users to import, sell, offer for sale, and use the nICE Products and Kuer 

Products in a manner that directly infringes the ’165 patent, knowing that such import and use 

constitute direct infringement of the ’165 patent. 

186. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are 

utilizing the technology claimed in the ’165 patent without paying a reasonable royalty. nICE, 

SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are infringing the ’165 patent 

in a manner best described as willful, wanton, malicious, in bad faith, deliberate, consciously 

wrongful, flagrant, or characteristic of a pirate. 

187. Based on the foregoing acts, nICE, SSMG, Home Depot, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor are jointly and severally liable for infringement of the ’165 patent, at 

least with respect to infringement of the ’165 patent through the make, use, sale, offer for sale, 

and/or import of the nICE Products in/into the United States. 

188. As a result of infringement of the ’165 patent by nICE, SSMG, Home Depot, 

Kuer Plastic, Kuer Kayak, and Kuer Outdoor, H-E-B has suffered monetary damages, and seeks 

recovery in an amount adequate to compensate for that infringement, but in no event less than a 

reasonable royalty for the use made of the invention by nICE, SSMG, Home Depot, Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor together with interest and costs as fixed by the Court. 

189. On information and belief, infringement of the ’165 patent by nICE, SSMG, Kuer 

Plastic, Kuer Kayak, and Kuer Outdoor has been, and continues to be willful and deliberate, and 

has caused substantial damage to H-E-B. 

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Count 2: Infringement of U.S. Patent No. 10,464,734 

190. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

191. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, 

use, sell, offer for sale, and/or import in/into the United States various cooler products. 

192. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, 

use, sell, offer for sale, and/or import cooler products including but not limited to the nICE 

Products. For example, on information and belief: Kuer Plastic, Kuer Kayak, and Kuer Outdoor 

make, use, sell, offer for sale, and import the nICE Products; nICE and SSMG use, sell, offer for 

sale, and import the nICE Products; and Home Depot sells, offers for sale, and imports the nICE 

Products. 

193. Home Depot makes, uses, sells, offers for sale, and/or imports cooler products 

including but not limited to the Home Depot Products. 

194. Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, use, sell, offer for sale, and/or 

import cooler products including but not limited to the Kuer Products. 

195. On information and belief, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, 

and Kuer Outdoor have directly infringed and continue to directly infringe the ’734 patent by, 

among other things, making, using, selling, offering for sale, and/or importing cooler products 

in/into the United States, including but not limited to the nICE Products, the Home Depot 

Products, and/or the Kuer Products. 

196. On information and belief, one or more nICE Products include an enclosure 

defined by one or more walls and a lid, the lid forming a relatively airtight seal with a wall of the 

cooler when in a closed position, wherein the lid and each wall that defines the enclosure are 

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insulated, and wherein the enclosure is capable of maintaining a sufficient temperature gradient 

between an inside of the enclosure and an outside of the enclosure such that a suction seal forms 

at the relatively airtight seal between the lid and the one or more walls of the Home Depot 

Product when the lid is in the closed position due to the temperature gradient. 

197. On information and belief, one or more nICE Products include a vacuum release 

assembly disposed in one of the walls of the cooler, wherein the assembly is capable of 

neutralizing the suction seal between the lid and the one or more walls of the nICE Product. 

198. On information and belief, one or more Home Depot Products include an 

enclosure defined by one or more walls and a lid, the lid forming a relatively airtight seal with a 

wall of the cooler when in a closed position, wherein the lid and each wall that defines the 

enclosure are insulated, and wherein the enclosure is capable of maintaining a sufficient 

temperature gradient between an inside of the enclosure and an outside of the enclosure such that 

a suction seal forms at the relatively airtight seal between the lid and the one or more walls of the 

Home Depot Product when the lid is in the closed position due to the temperature gradient. 

199. On information and belief, one or more Home Depot Products include a vacuum 

release assembly disposed in one of the walls of the cooler, wherein the assembly is capable of 

neutralizing the suction seal between the lid and the one or more walls of the Home Depot 

Product. 

200. On information and belief, one or more Kuer Products include an enclosure 

defined by one or more walls and a lid, the lid forming a relatively airtight seal with a wall of the 

cooler when in a closed position, wherein the lid and each wall that defines the enclosure are 

insulated, and wherein the enclosure is capable of maintaining a sufficient temperature gradient 

between an inside of the enclosure and an outside of the enclosure such that a suction seal forms 

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at the relatively airtight seal between the lid and the one or more walls of the Kuer Product when 

the lid is in the closed position due to the temperature gradient. 

201. On information and belief, one or more Kuer Products include a vacuum release 

assembly disposed in one of the walls of the cooler, wherein the assembly is capable of 

neutralizing the suction seal between the lid and the one or more walls of the Kuer Product. 

202. By making, using, testing, offering for sale, selling, and/or importing infringing 

cooler products, including but not limited to the nICE Products, the Home Depot Products, 

and/or the Kuer Products, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer 

Outdoor have injured H-E-B and are liable to H-E-B for directly infringing one or more claims 

of the ’734 patent, including at least claim 1, pursuant to 35 U.S.C. § 271(a). 

203. On information and belief, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, 

and Kuer Outdoor also indirectly infringe the ’734 patent by actively inducing infringement 

under 35 U.S.C. § 271(b). 

204. nICE and SSMG have had knowledge of the ’734 patent since at least service of 

this Complaint. On information and belief, nICE and SSMG knew of the ’734 patent and knew 

of their infringement, including by way of this lawsuit. 

205. On information and belief, nICE and SSMG intended to induce patent 

infringement by importers, third-party retailers, and users of the nICE Products and had 

knowledge that the inducing acts would cause infringement or was willfully blind to the 

possibility that its inducing acts would cause infringement. nICE and SSMG specifically 

intended and were aware that making, use, sale, offer for sale, and/or import of the nICE 

Products would infringe the ’734 patent. nICE and SSMG performed the acts that constitute 

induced infringement with knowledge of the ’734 patent and with knowledge that the induced 

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acts would constitute infringement. For example, on information and belief, nICE and SSMG 

contract with third-party importers for import of the nICE Products into the United States. By 

contracting in a manner that would cause third-party importers to directly infringe one or more 

claims of the ’734 patent, including at least claim 1, nICE and SSMG specifically intended to 

induce infringement of the ’734 patent. As a further example, on information and belief, nICE 

and SSMG contract with third-party retailers for sale and for offer for sale of the nICE Products 

by the third-party retailers. By contracting in a manner that would cause third-party retailers to 

directly infringe one or more claims of the ’734 patent, including at least claim 1, nICE and 

SSMG specifically intended to induce infringement of the ’734 patent. As a further example, 

nICE and SSMG sell and offer for sale the nICE Products to users, including with product 

manuals that provide instructions on use of the nICE Products. By selling, offering for sale, 

and/or providing product documentation for the nICE Products in a manner that would cause 

users to directly infringe one or more claims of the ’734 patent, including at least claim 1, nICE 

and SSMG specifically intended to induce infringement of the ’734 patent. Accordingly, nICE 

and SSMG have induced and continue to induce third-party importers, retailers, and users to 

import, sell, offer for sale, and use the nICE Products in a manner that directly infringes the 

’734 patent, knowing that such import, sale, offer for sale, and use constitute direct infringement 

of the ’734 patent. 

206. Home Depot has had knowledge of the ’734 patent since at least service of this 

Complaint. On information and belief, Home Depot knew of the ’734 patent and knew of its 

infringement, including by way of this lawsuit. 

207. On information and belief, Home Depot intended to induce patent infringement 

by importers, third-party retailers, and users of the nICE Products and Home Depot Products and 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 38 of 70
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had knowledge that the inducing acts would cause infringement or was willfully blind to the 

possibility that its inducing acts would cause infringement. Home Depot specifically intended 

and was aware that making, use, sale, offer for sale, and/or import of the nICE Products and 

Home Depot Products would infringe the ’734 patent. Home Depot performed the acts that 

constitute induced infringement with knowledge of the ’734 patent and with knowledge that the 

induced acts would constitute infringement. For example, on information and belief, Home 

Depot contracts with third-party importers for import of the nICE Products and Home Depot 

Products into the United States. By contracting in a manner that would cause third-party 

importers to directly infringe one or more claims of the ’734 patent, including at least claim 1, 

Home Depot specifically intended to induce infringement of the ’734 patent. As a further 

example, Home Depot sells and offers for sale the nICE Products and Home Depot Products to 

users, including with product manuals that provide instructions on use of the nICE Products and 

Home Depot Products. By selling, offering for sale, and/or providing product documentation for 

the nICE Products and Home Depot Products in a manner that would cause users to directly 

infringe one or more claims of the ’734 patent, including at least claim 1, Home Depot 

specifically intended to induce infringement of the ’734 patent. Accordingly, Home Depot has 

induced and continues to induce third-party importers and users to import and use the nICE 

Products and Home Depot Products in a manner that directly infringes the ’734 patent, knowing 

that such import and use constitute direct infringement of the ’734 patent. 

208. Kuer Plastic, Kuer Kayak, and Kuer Outdoor have had knowledge of the 

’734 patent since at least service of this Complaint. On information and belief, Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor knew of the ’734 patent and knew of its infringement, including 

by way of this lawsuit. 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 39 of 70
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209. On information and belief, Kuer Plastic, Kuer Kayak, and Kuer Outdoor intended 

to induce patent infringement by importers, third-party retailers, and users of the nICE Products 

and Kuer Products and had knowledge that the inducing acts would cause infringement or were 

willfully blind to the possibility that its inducing acts would cause infringement. Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor specifically intended and were aware that making, use, sale, 

offer for sale, and/or import of the nICE Products and Kuer Products would infringe the 

’734 patent. Kuer Plastic, Kuer Kayak, and Kuer Outdoor performed the acts that constitute 

induced infringement with knowledge of the ’734 patent and with knowledge that the induced 

acts would constitute infringement. For example, on information and belief, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor contracts with third-party importers for import of the nICE Products 

and Kuer Products into the United States. By contracting in a manner that would cause thirdparty importers to directly infringe one or more claims of the ’734 patent, including at least claim 

1, Kuer Plastic, Kuer Kayak, and Kuer Outdoor specifically intended to induce infringement of 

the ’734 patent. As a further example, Kuer Plastic, Kuer Kayak, and Kuer Outdoor sell and 

offer for sale the Kuer Products to users, including with product manuals that provide 

instructions on use of the Kuer Products. By selling, offering for sale, and/or providing product 

documentation for the Kuer Products in a manner that would cause users to directly infringe one 

or more claims of the ’734 patent, including at least claim 1, Kuer Plastic, Kuer Kayak, and Kuer 

Outdoor specifically intended to induce infringement of the ’734 patent. Accordingly, Kuer 

Plastic, Kuer Kayak, and Kuer Outdoor have induced and continue to induce third-party 

importers, retailers, and users to import, sell, offer for sale, and use the nICE Products and Kuer 

Products in a manner that directly infringes the ’734 patent, knowing that such import and use 

constitute direct infringement of the ’734 patent. 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 40 of 70
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210. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are 

utilizing the technology claimed in the ’734 patent without paying a reasonable royalty. nICE, 

SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are infringing the ’734 patent 

in a manner best described as willful, wanton, malicious, in bad faith, deliberate, consciously 

wrongful, flagrant, or characteristic of a pirate. 

211. Based on the foregoing acts, nICE, SSMG, Home Depot, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor are jointly and severally liable for infringement of the ’734 patent, at 

least with respect to infringement of the ’734 patent through the make, use, sale, offer for sale, 

and/or import of the nICE Products in/into the United States. 

212. As a result of infringement of the ’734 patent by nICE, SSMG, Home Depot, 

Kuer Plastic, Kuer Kayak, and Kuer Outdoor, H-E-B has suffered monetary damages, and seeks 

recovery in an amount adequate to compensate for that infringement, but in no event less than a 

reasonable royalty for the use made of the invention by nICE, SSMG, Home Depot, Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor together with interest and costs as fixed by the Court. 

213. On information and belief, infringement of the ’734 patent by nICE, SSMG, Kuer 

Plastic, Kuer Kayak, and Kuer Outdoor has been, and continues to be willful and deliberate, and 

has caused substantial damage to H-E-B. 

Count 3: Infringement of U.S. Patent No. 10,486,887 

214. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

215. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, 

use, sell, offer for sale, and/or import in/into the United States various cooler products. 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 41 of 70
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216. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, 

use, sell, offer for sale, and/or import cooler products including but not limited to the nICE 

Products. For example, on information and belief: Kuer Plastic, Kuer Kayak, and Kuer Outdoor 

make, use, sell, offer for sale, and import the nICE Products; nICE and SSMG use, sell, offer for 

sale, and import the nICE Products; and Home Depot sells, offers for sale, and imports the nICE 

Products. 

217. Home Depot makes, uses, sells, offers for sale, and/or imports cooler products 

including but not limited to the Home Depot Products. 

218. Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, use, sell, offer for sale, and/or 

import cooler products including but not limited to the Kuer Products. 

219. On information and belief, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, 

and Kuer Outdoor have directly infringed and continue to directly infringe the ’887 patent by, 

among other things, making, using, selling, offering for sale, and/or importing cooler products 

in/into the United States, including but not limited to the nICE Products, the Home Depot 

Products, and/or the Kuer Products. 

220. On information and belief, one or more nICE Products include an enclosure 

comprising a plurality of walls and a lid that surround a product storage area within the 

enclosure, wherein the lid forms a seal with the plurality of walls surrounding the product area of 

the nICE Product when the lid is in a closed position, wherein the lid and each wall that 

surrounds the enclosure are insulated, and wherein the enclosure is capable of maintaining a 

temperature differential between an inside of the enclosure and an outside of the enclosure and 

that a pressure differential forms the seal between the lid and the plurality of walls of the nICE 

Product when the lid is in the closed position due to the pressure differential. 

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221. On information and belief, one or more nICE Products include a vacuum release 

assembly disposed in at least one of the walls of the nICE Product, wherein the vacuum release 

assembly is capable of neutralizing the pressure differential between the lid and the plurality of 

walls of the nICE Product. 

222. On information and belief, one or more Home Depot Products include an 

enclosure comprising a plurality of walls and a lid that surround a product storage area within the 

enclosure, wherein the lid forms a seal with the plurality of walls surrounding the product area of 

the Home Depot Product when the lid is in a closed position, wherein the lid and each wall that 

surrounds the enclosure are insulated, and wherein the enclosure is capable of maintaining a 

temperature differential between an inside of the enclosure and an outside of the enclosure and 

that a pressure differential forms the seal between the lid and the plurality of walls of the Home 

Depot Product when the lid is in the closed position due to the pressure differential. 

223. On information and belief, one or more Home Depot Products include a vacuum 

release assembly disposed in at least one of the walls of the Home Depot Product, wherein the 

vacuum release assembly is capable of neutralizing the pressure differential between the lid and 

the plurality of walls of the Home Depot Product. 

224. On information and belief, one or more Kuer Products include an enclosure 

comprising a plurality of walls and a lid that surround a product storage area within the 

enclosure, wherein the lid forms a seal with the plurality of walls surrounding the product area of 

the Kuer Product when the lid is in a closed position, wherein the lid and each wall that 

surrounds the enclosure are insulated, and wherein the enclosure is capable of maintaining a 

temperature differential between an inside of the enclosure and an outside of the enclosure and 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 43 of 70
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that a pressure differential forms the seal between the lid and the plurality of walls of the Kuer 

Product when the lid is in the closed position due to the pressure differential. 

225. On information and belief, one or more Kuer Products include a vacuum release 

assembly disposed in at least one of the walls of the Kuer Product, wherein the vacuum release 

assembly is capable of neutralizing the pressure differential between the lid and the plurality of 

walls of the Kuer Product. 

226. By making, using, testing, offering for sale, selling, and/or importing infringing 

cooler products, including but not limited to the nICE Products, the Home Depot Products, 

and/or the Kuer Products, nICE, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor have 

injured H-E-B and are liable to H-E-B for directly infringing one or more claims of the 

’887 patent, including at least claim 1, pursuant to 35 U.S.C. § 271(a). 

227. On information and belief, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, 

and Kuer Outdoor also indirectly infringes the ’887 patent by actively inducing infringement 

under 35 U.S.C. § 271(b). 

228. nICE and SSMG have had knowledge of the ’887 patent since at least service of 

this Complaint. On information and belief, nICE and SSMG knew of the ’887 patent and knew 

of their infringement, including by way of this lawsuit. 

229. On information and belief, nICE and SSMG intended to induce patent 

infringement by importers, third-party retailers, and users of the nICE Products and had 

knowledge that the inducing acts would cause infringement or were willfully blind to the 

possibility that its inducing acts would cause infringement. nICE and SSMG specifically 

intended and were aware that making, use, sale, offer for sale, and/or import of the nICE 

Products would infringe the ’887 patent. nICE and SSMG performed the acts that constitute 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 44 of 70
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induced infringement with knowledge of the ’887 patent and with knowledge that the induced 

acts would constitute infringement. For example, on information and belief, nICE and SSMG 

contract with third-party importers for import of the nICE Products into the United States. By 

contracting in a manner that would cause third-party importers to directly infringe one or more 

claims of the ’887 patent, including at least claim 1, nICE and SSMG specifically intended to 

induce infringement of the ’887 patent. As a further example, on information and belief, nICE 

and SSMG contract with third-party retailers for sale and for offer for sale of the nICE Products 

by the third-party retailers. By contracting in a manner that would cause third-party retailers to 

directly infringe one or more claims of the ’887 patent, including at least claim 1, nICE and 

SSMG specifically intended to induce infringement of the ’887 patent. As a further example, 

nICE and SSMG sell and offer for sale the nICE Products to users, including with product 

manuals that provide instructions on use of the nICE Products. By selling, offering for sale, 

and/or providing product documentation for the nICE Products in a manner that would cause 

users to directly infringe one or more claims of the ’887 patent, including at least claim 1, nICE 

and SSMG specifically intended to induce infringement of the ’887 patent. Accordingly, nICE 

and SSMG have induced and continue to induce third-party importers, retailers, and users to 

import, sell, offer for sale, and use the nICE Products in a manner that directly infringes the 

’887 patent, knowing that such import, sale, offer for sale, and use constitute direct infringement 

of the ’887 patent. 

230. Home Depot has had knowledge of the ’887 patent since at least service of this 

Complaint. On information and belief, Home Depot knew of the ’887 patent and knew of its 

infringement, including by way of this lawsuit. 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 45 of 70
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231. On information and belief, Home Depot intended to induce patent infringement 

by importers, third-party retailers, and users of the nICE Products and Home Depot Products and 

had knowledge that the inducing acts would cause infringement or was willfully blind to the 

possibility that its inducing acts would cause infringement. Home Depot specifically intended 

and was aware that making, use, sale, offer for sale, and/or import of the nICE Products and 

Home Depot Products would infringe the ’887 patent. Home Depot performed the acts that 

constitute induced infringement with knowledge of the ’887 patent and with knowledge that the 

induced acts would constitute infringement. For example, on information and belief, Home 

Depot contracts with third-party importers for import of the nICE Products and Home Depot 

Products into the United States. By contracting in a manner that would cause third-party 

importers to directly infringe one or more claims of the ’887 patent, including at least claim 1, 

Home Depot specifically intended to induce infringement of the ’887 patent. As a further 

example, Home Depot sells and offers for sale the nICE Products and Home Depot Products to 

users, including with product manuals that provide instructions on use of the nICE Products and 

Home Depot Products. By selling, offering for sale, and/or providing product documentation for 

the nICE Products and Home Depot Products in a manner that would cause users to directly 

infringe one or more claims of the ’887 patent, including at least claim 1, Home Depot 

specifically intended to induce infringement of the ’887 patent. Accordingly, Home Depot has 

induced and continues to induce third-party importers and users to import and use the nICE 

Products and Home Depot Products in a manner that directly infringes the ’887 patent, knowing 

that such import and use constitute direct infringement of the ’887 patent. 

232. Kuer Plastic, Kuer Kayak, and Kuer Outdoor have had knowledge of the 

’887 patent since at least service of this Complaint. On information and belief, Kuer Plastic, 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 46 of 70
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Kuer Kayak, and Kuer Outdoor knew of the ’887 patent and knew of their infringement, 

including by way of this lawsuit. 

233. On information and belief, Kuer Plastic, Kuer Kayak, and Kuer Outdoor intended 

to induce patent infringement by importers, third-party retailers, and users of the nICE Products 

and Kuer Products and had knowledge that the inducing acts would cause infringement or were 

willfully blind to the possibility that its inducing acts would cause infringement. Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor specifically intended and were aware that making, use, sale, 

offer for sale, and/or import of the nICE Products and Kuer Products would infringe the 

’887 patent. Kuer Plastic, Kuer Kayak, and Kuer Outdoor performed the acts that constitute 

induced infringement with knowledge of the ’887 patent and with knowledge that the induced 

acts would constitute infringement. For example, on information and belief, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor contracts with third-party importers for import of the nICE Products 

and Kuer Products into the United States. By contracting in a manner that would cause thirdparty importers to directly infringe one or more claims of the ’887 patent, including at least claim 

1, Kuer Plastic, Kuer Kayak, and Kuer Outdoor specifically intended to induce infringement of 

the ’887 patent. As a further example, Kuer Plastic, Kuer Kayak, and Kuer Outdoor sell and 

offer for sale the Kuer Products to users, including with product manuals that provide 

instructions on use of the Kuer Products. By selling, offering for sale, and/or providing product 

documentation for the Kuer Products in a manner that would cause users to directly infringe one 

or more claims of the ’887 patent, including at least claim 1, Kuer Plastic, Kuer Kayak, and Kuer 

Outdoor specifically intended to induce infringement of the ’887 patent. Accordingly, Kuer 

Plastic, Kuer Kayak, and Kuer Outdoor have induced and continue to induce third-party 

importers, retailers, and users to import, sell, offer for sale, and use the nICE Products and Kuer 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 47 of 70
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Products in a manner that directly infringes the ’887 patent, knowing that such import and use 

constitute direct infringement of the ’887 patent. 

234. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are 

utilizing the technology claimed in the ’887 patent without paying a reasonable royalty. nICE, 

SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are infringing the ’887 patent 

in a manner best described as willful, wanton, malicious, in bad faith, deliberate, consciously 

wrongful, flagrant, or characteristic of a pirate. 

235. Based on the foregoing acts, nICE, SSMG, Home Depot, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor are jointly and severally liable for infringement of the ’887 patent, at 

least with respect to infringement of the ’887 patent through the make, use, sale, offer for sale, 

and/or import of the nICE Products in/into the United States. 

236. As a result of infringement of the ’887 patent by nICE, SSMG, Home Depot, 

Kuer Plastic, Kuer Kayak, and Kuer Outdoor, H-E-B has suffered monetary damages, and seeks 

recovery in an amount adequate to compensate for that infringement, but in no event less than a 

reasonable royalty for the use made of the invention by nICE, SSMG, Home Depot, Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor together with interest and costs as fixed by the Court. 

237. On information and belief, infringement of the ’887 patent by nICE, SSMG, Kuer 

Plastic, Kuer Kayak, and Kuer Outdoor has been, and continues to be willful and deliberate, and 

has caused substantial damage to H-E-B. 

Count 4: Infringement of U.S. Patent No. 10,486,888 

238. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 48 of 70
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239. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, 

use, sell, offer for sale, and/or import in/into the United States various cooler products. 

240. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, 

use, sell, offer for sale, and/or import cooler products including but not limited to the nICE 

Products. For example, on information and belief: Kuer Plastic, Kuer Kayak, and Kuer Outdoor 

make, use, sell, offer for sale, and import the nICE Products; nICE and SSMG use, sell, offer for 

sale, and import the nICE Products; and Home Depot sells, offers for sale, and imports the nICE 

Products. 

241. Home Depot makes, uses, sells, offers for sale, and/or imports cooler products 

including but not limited to the Home Depot Products. 

242. Kuer Plastic, Kuer Kayak, and Kuer Outdoor make, use, sell, offer for sale, and/or 

import cooler products including but not limited to the Kuer Products. 

243. On information and belief, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, 

and Kuer Outdoor have directly infringed and continue to directly infringe the ’888 patent by, 

among other things, making, using, selling, offering for sale, and/or importing cooler products 

in/into the United States, including but not limited to the nICE Products, the Home Depot 

Products, and/or the Kuer Products. 

244. On information and belief, one or more nICE Products include an enclosure and a 

lid to surround a product storage area within the enclosure, wherein the lid forms a seal with a 

top section of the enclosure surrounding the product storage area of the nICE Product when the 

lid is in a closed position due to a pressure differential between the interior of the nICE Product 

and an exterior of the nICE Product, wherein the lid and the enclosure are insulated, and wherein 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 49 of 70
 -50- 

the enclosure is capable of maintaining a temperature differential between the interior of the 

enclosure and the exterior of the enclosure. 

245. On information and belief, one or more nICE Products include a pressure release 

assembly disposed in at least one side of the enclosure, wherein the pressure release assembly is 

capable of neutralizing the pressure differential, wherein the pressure release assembly includes 

an outside air exhaust or intake channel through which outside air may enter the enclosure, 

wherein the pressure release assembly includes a plunger including a shaft, the plunger 

selectively movable with respect to an opening at one end of the outside air exhaust or intake 

channel to allow air from the exterior of the nICE Product to enter the enclosure through the 

opening, and wherein the pressure release assembly includes a pressure release button coupled to 

the plunger. 

246. On information and belief, one or more Home Depot Products include an 

enclosure and a lid to surround a product storage area within the enclosure, wherein the lid forms 

a seal with a top section of the enclosure surrounding the product storage area of the Home 

Depot Product when the lid is in a closed position due to a pressure differential between the 

interior of the Home Depot Product and an exterior of the Home Depot Product, wherein the lid 

and the enclosure are insulated, and wherein the enclosure is capable of maintaining a 

temperature differential between the interior of the enclosure and the exterior of the enclosure. 

247. On information and belief, one or more Home Depot Products include a pressure 

release assembly disposed in at least one side of the enclosure, wherein the pressure release 

assembly is capable of neutralizing the pressure differential, wherein the pressure release 

assembly includes an outside air exhaust or intake channel through which outside air may enter 

the enclosure, wherein the pressure release assembly includes a plunger including a shaft, the 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 50 of 70
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plunger selectively movable with respect to an opening at one end of the outside air exhaust or 

intake channel to allow air from the exterior of the Home Depot Product to enter the enclosure 

through the opening, and wherein the pressure release assembly includes a pressure release 

button coupled to the plunger. 

248. On information and belief, one or more Kuer Products include an enclosure and a 

lid to surround a product storage area within the enclosure, wherein the lid forms a seal with a 

top section of the enclosure surrounding the product storage area of the Kuer Product when the 

lid is in a closed position due to a pressure differential between the interior of the Kuer Product 

and an exterior of the Kuer Product, wherein the lid and the enclosure are insulated, and wherein 

the enclosure is capable of maintaining a temperature differential between the interior of the 

enclosure and the exterior of the enclosure. 

249. On information and belief, one or more Kuer Products include a pressure release 

assembly disposed in at least one side of the enclosure, wherein the pressure release assembly is 

capable of neutralizing the pressure differential, wherein the pressure release assembly includes 

an outside air exhaust or intake channel through which outside air may enter the enclosure, 

wherein the pressure release assembly includes a plunger including a shaft, the plunger 

selectively movable with respect to an opening at one end of the outside air exhaust or intake 

channel to allow air from the exterior of the Kuer Product to enter the enclosure through the 

opening, and wherein the pressure release assembly includes a pressure release button coupled to 

the plunger. 

250. By making, using, testing, offering for sale, selling, and/or importing infringing 

cooler products, including but not limited to the nICE Products, the Home Depot Products, 

and/or the Kuer Products, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 51 of 70
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Outdoor have injured H-E-B and are liable to H-E-B for directly infringing one or more claims 

of the ’888 patent, including at least claim 1, pursuant to 35 U.S.C. § 271(a). 

251. On information and belief, nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, 

and Kuer Outdoor also indirectly infringes the ’888 patent by actively inducing infringement 

under 35 U.S.C. § 271(b). 

252. nICE and SSMG have had knowledge of the ’888 patent since at least service of 

this Complaint. On information and belief, nICE and SSMG knew of the ’888 patent and knew 

of their infringement, including by way of this lawsuit. 

253. On information and belief, nICE and SSMG intended to induce patent 

infringement by importers, third-party retailers, and users of the nICE Products and had 

knowledge that the inducing acts would cause infringement or were willfully blind to the 

possibility that its inducing acts would cause infringement. nICE and SSMG specifically 

intended and were aware that making, use, sale, offer for sale, and/or import of the nICE 

Products would infringe the ’888 patent. nICE and SSMG performed the acts that constitute 

induced infringement with knowledge of the ’888 patent and with knowledge that the induced 

acts would constitute infringement. For example, on information and belief, nICE and SSMG 

contract with third-party importers for import of the nICE Products into the United States. By 

contracting in a manner that would cause third-party importers to directly infringe one or more 

claims of the ’888 patent, including at least claim 1, nICE and SSMG specifically intended to 

induce infringement of the ’888 patent. As a further example, on information and belief, nICE 

and SSMG contract with third-party retailers for sale and for offer for sale of the nICE Products 

by the third-party retailers. By contracting in a manner that would cause third-party retailers to 

directly infringe one or more claims of the ’888 patent, including at least claim 1, nICE and 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 52 of 70
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SSMG specifically intended to induce infringement of the ’888 patent. As a further example, 

nICE and SSMG sell and offer for sale the nICE Products to users, including with product 

manuals that provide instructions on use of the nICE Products. By selling, offering for sale, 

and/or providing product documentation for the nICE Products in a manner that would cause 

users to directly infringe one or more claims of the ’888 patent, including at least claim 1, nICE 

and SSMG specifically intended to induce infringement of the ’888 patent. Accordingly, nICE 

and SSMG have induced and continue to induce third-party importers, retailers, and users to 

import, sell, offer for sale, and use the nICE Products in a manner that directly infringes the 

’888 patent, knowing that such import, sale, offer for sale, and use constitute direct infringement 

of the ’888 patent. 

254. Home Depot has had knowledge of the ’888 patent since at least service of this 

Complaint. On information and belief, Home Depot knew of the ’888 patent and knew of its 

infringement, including by way of this lawsuit. 

255. On information and belief, Home Depot intended to induce patent infringement 

by importers, third-party retailers, and users of the nICE Products and Home Depot Products and 

had knowledge that the inducing acts would cause infringement or was willfully blind to the 

possibility that its inducing acts would cause infringement. Home Depot specifically intended 

and was aware that making, use, sale, offer for sale, and/or import of the nICE Products and 

Home Depot Products would infringe the ’888 patent. Home Depot performed the acts that 

constitute induced infringement with knowledge of the ’888 patent and with knowledge that the 

induced acts would constitute infringement. For example, on information and belief, Home 

Depot contracts with third-party importers for import of the nICE Products and Home Depot 

Products into the United States. By contracting in a manner that would cause third-party 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 53 of 70
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importers to directly infringe one or more claims of the ’888 patent, including at least claim 1, 

Home Depot specifically intended to induce infringement of the ’888 patent. As a further 

example, Home Depot sells and offers for sale the nICE Products and Home Depot Products to 

users, including with product manuals that provide instructions on use of the nICE Products and 

Home Depot Products. By selling, offering for sale, and/or providing product documentation for 

the nICE Products and Home Depot Products in a manner that would cause users to directly 

infringe one or more claims of the ’888 patent, including at least claim 1, Home Depot 

specifically intended to induce infringement of the ’888 patent. Accordingly, Home Depot has 

induced and continues to induce third-party importers and users to import and use the nICE 

Products and Home Depot Products in a manner that directly infringes the ’888 patent, knowing 

that such import and use constitute direct infringement of the ’888 patent. 

256. Kuer Plastic, Kuer Kayak, and Kuer Outdoor have had knowledge of the 

’888 patent since at least service of this Complaint. On information and belief, Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor knew of the ’888 patent and knew of their infringement, 

including by way of this lawsuit. 

257. On information and belief, Kuer Plastic, Kuer Kayak, and Kuer Outdoor intended 

to induce patent infringement by importers, third-party retailers, and users of the nICE Products 

and Kuer Products and had knowledge that the inducing acts would cause infringement or were 

willfully blind to the possibility that its inducing acts would cause infringement. Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor specifically intended and were aware that making, use, sale, 

offer for sale, and/or import of the nICE Products and Kuer Products would infringe the 

’888 patent. Kuer Plastic, Kuer Kayak, and Kuer Outdoor performed the acts that constitute 

induced infringement with knowledge of the ’888 patent and with knowledge that the induced 

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acts would constitute infringement. For example, on information and belief, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor contracts with third-party importers for import of the nICE Products 

and Kuer Products into the United States. By contracting in a manner that would cause thirdparty importers to directly infringe one or more claims of the ’888 patent, including at least claim 

1, Kuer Plastic, Kuer Kayak, and Kuer Outdoor specifically intended to induce infringement of 

the ’888 patent. As a further example, Kuer Plastic, Kuer Kayak, and Kuer Outdoor sell and 

offer for sale the Kuer Products to users, including with product manuals that provide 

instructions on use of the Kuer Products. By selling, offering for sale, and/or providing product 

documentation for the Kuer Products in a manner that would cause users to directly infringe one 

or more claims of the ’888 patent, including at least claim 1, Kuer Plastic, Kuer Kayak, and Kuer 

Outdoor specifically intended to induce infringement of the ’888 patent. Accordingly, Kuer 

Plastic, Kuer Kayak, and Kuer Outdoor have induced and continue to induce third-party 

importers, retailers, and users to import, sell, offer for sale, and use the nICE Products and Kuer 

Products in a manner that directly infringes the ’888 patent, knowing that such import and use 

constitute direct infringement of the ’888 patent. 

258. nICE, SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are 

utilizing the technology claimed in the ’888 patent without paying a reasonable royalty. nICE, 

SSMG, Home Depot, Kuer Plastic, Kuer Kayak, and Kuer Outdoor are infringing the ’888 patent 

in a manner best described as willful, wanton, malicious, in bad faith, deliberate, consciously 

wrongful, flagrant, or characteristic of a pirate. 

259. Based on the foregoing acts, nICE, SSMG, Home Depot, Kuer Plastic, Kuer 

Kayak, and Kuer Outdoor are jointly and severally liable for infringement of the ’888 patent, at 

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least with respect to infringement of the ’888 patent through the make, use, sale, offer for sale, 

and/or import of the nICE Products in/into the United States. 

260. As a result of infringement of the ’888 patent by nICE, SSMG, Home Depot, 

Kuer Plastic, Kuer Kayak, and Kuer Outdoor, H-E-B has suffered monetary damages, and seeks 

recovery in an amount adequate to compensate for that infringement, but in no event less than a 

reasonable royalty for the use made of the invention by nICE, SSMG, Home Depot, Kuer Plastic, 

Kuer Kayak, and Kuer Outdoor together with interest and costs as fixed by the Court. 

261. On information and belief, infringement of the ’888 patent by nICE, SSMG, Kuer 

Plastic, Kuer Kayak, and Kuer Outdoor has been, and continues to be willful and deliberate, and 

has caused substantial damage to H-E-B. 

Count 5: Trade Dress Infringement 

262. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

263. Defendants’ advertisements, promotions, offers to sell, sales, and/or distribution 

of the infringing products violate § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) by infringing 

H-E-B’s cooler trade dress. Defendants’ use of H-E-B’s trade dress and/or colorable imitations 

thereof is likely to cause confusion, mistake, or deception as to the affiliation, connection, and/or 

association of Defendants with H-E-B and as to the origin, sponsorship, and/or approval of the 

infringing cooler products, at least by creating the false and misleading impression that the 

infringing cooler products are manufactured by, authorized by, or otherwise associated with 

H-E-B. 

264. H-E-B’s cooler trade dress is entitled to protection under the Lanham Act. 

H-E-B’s cooler trade dress includes unique, distinctive, and non-functional designs. H-E-B has 

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extensively and continuously promoted and used their cooler trade dress in the United States. 

Through that extensive and continuous use, H-E-B’s cooler trade dress has become a well-known 

indicator of the origin and quality of H-E-B’s coolers. H-E-B’s cooler trade dress has also 

acquired substantial secondary meaning in the marketplace. Moreover, H-E-B’s cooler trade 

dress acquired this secondary meaning before Defendants commenced their unlawful use of 

H-E-B’s cooler trade dress in connection with the infringing cooler products. 

265. Defendants’ use of H-E-B’s cooler trade dress has caused and, unless enjoined, 

will continue to cause substantial and irreparable injury to H-E-B for which H-E-B has no 

adequate remedy at law, including at least substantial and irreparable injury to the goodwill and 

reputation for quality associated with H-E-B’s cooler trade dress, H-E-B’s cooler products, and 

H-E-B. 

266. On information and belief, Defendants’ use of H-E-B’s cooler trade dress and 

colorable imitations thereof has been intentional, willful, and malicious. Defendants’ bad faith is 

evidenced at least by the extreme similarity of the infringing cooler products to H-E-B’s cooler 

trade dress, as pictured above, and by Defendants’ continuing disregard for H-E-B’s rights. 

267. H-E-B is entitled to injunctive relief, and H-E-B is entitled to recover at least 

Defendants’ profits, H-E-B’s actual damages, enhanced damages, costs, and reasonable attorney 

fees under at least 15 U.S.C. §§ 1125(a), 1116, and 1117. 

Count 6: Unfair Competition and False Designation of Origin under § 43(a) of the Lanham 

Act, 15 U.S.C. § 1125(a) 

268. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

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269. Defendants’ advertisements, promotions, offers to sell, sales, and/or distribution 

of the infringing cooler products, in direct competition with H-E-B, violate § 43(a) of the 

Lanham Act, 15 U.S.C. § 1125(a) and constitute unfair competition and false designation of 

origin. Defendants have at least obtained an unfair advantage as compared to H-E-B through 

Defendants’ use of H-E-B’s cooler trade dress and because such uses are likely to cause 

consumer confusion as to the origin and/or sponsorship/affiliation of the infringing cooler 

products, at least by creating the false and misleading impression that the infringing cooler 

products are manufactured by, authorized by, or otherwise associated with H-E-B. 

270. H-E-B’s cooler trade dress is entitled to protection under the Lanham Act. 

H-E-B’s cooler trade dress includes unique, distinctive, and non-functional designs. H-E-B has 

extensively and continuously promoted and used their cooler trade dress in the State of Texas. 

Through that extensive and continuous use, H-E-B’s cooler trade dress has become a well-known 

indicator of the origin and quality of H-E-B’s coolers. H-E-B’s cooler trade dress has also 

acquired substantial secondary meaning in the marketplace. Moreover, H-E-B’s cooler trade 

dress acquired this secondary meaning before Defendants commenced their unlawful use of 

H-E-B’s cooler trade dress in connection with the infringing cooler products. 

271. Defendants’ use of H-E-B’s cooler trade dress and/or colorable imitations thereof 

has caused and, unless enjoined, will continue to cause substantial and irreparable injury to 

H-E-B for which H-E-B has no adequate remedy at law, including at least substantial and 

irreparable injury to the goodwill and reputation for quality associated with H-E-B’s cooler trade 

dress, H-E-B’s cooler products, and H-E-B. 

272. On information and belief, Defendants’ use of H-E-B’s cooler trade dress and 

colorable imitations thereof has been intentional, willful, and malicious. Defendants’ bad faith is 

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evidenced at least by the extreme similarity of the infringing cooler products to H-E-B’s cooler 

trade dress, as pictured above, and by Defendants’ continuing disregard for H-E-B’s rights. 

273. H-E-B is entitled to injunctive relief, and H-E-B is also entitled to recover at least 

Defendants’ profits, H-E-B’s actual damages, enhanced damages, costs, and reasonable attorney 

fees under at least 15 U.S.C. §§ 1125(a), 1116, and 1117. 

Count 7: Trade Dress Dilution under § 43(c) of the Lanham Act, 15 U.S.C. § 1125(c) 

274. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

275. Defendants’ advertisements, promotions, offers to sell, sales, and/or distribution 

of the infringing cooler products violate § 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). 

276. H-E-B’s cooler trade dress is entitled to protection under the Lanham Act. 

H-E-B’s cooler trade dress includes unique, distinctive, and non-functional designs. H-E-B’s 

cooler trade dress has acquired distinctiveness through H-E-B’s extensive and continuous 

promotion and use of H-E-B’s cooler trade dress in the State of Texas. Through that extensive 

and continuous use, H-E-B’s cooler trade dress has become a famous well-known indicator of 

the origin and quality of H-E-B’s coolers throughout the State of Texas, and is widely recognized 

by the general consuming public as a designation of the source of H-E-B and H-E-B’s coolers. 

H-E-B’s cooler trade dress has also acquired substantial secondary meaning in the marketplace. 

Moreover, H-E-B’s cooler trade dress became famous and acquired this secondary meaning 

before Defendants commenced their unlawful use of H-E-B’s cooler trade dress in connection 

with the infringing cooler products. 

277. Defendants’ use of H-E-B’s cooler trade dress is likely to cause, and has caused, 

dilution of H-E-B’s famous cooler trade dress, at least by eroding the public’s exclusive 

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identification of H-E-B’s famous cooler trade dress with H-E-B and H-E-B’s coolers, by 

lessening the capacity of H-E-B’s famous cooler trade dress to identify and distinguish H-E-B’s 

coolers, by associating H-E-B’s cooler trade dress with products of inferior quality, and by 

impairing the distinctiveness of H-E-B’s famous cooler trade dress. 

278. Defendants’ use of H-E-B’s cooler trade dress has caused, and, unless enjoined, 

will continue to cause, substantial and irreparable injury to H-E-B for which H-E-B has no 

adequate remedy at law, including at least substantial and irreparable injury to the goodwill and 

reputation for quality associated with H-E-B’s cooler trade dress, H-E-B’s cooler products, and 

H-E-B. 

279. On information and belief, Defendants’ use of H-E-B’s cooler trade dress and 

colorable imitations thereof has been intentional, willful, and malicious. Defendants’ bad faith is 

evidenced at least by the extreme similarity of the infringing cooler products to H-E-B’s cooler 

trade dress, as pictured above, and by Defendants’ continuing disregard for H-E-B’s rights. 

280. H-E-B is entitled to injunctive relief, and H-E-B is also entitled to recover at least 

Defendants’ profits, actual damages, enhanced profits and damages, costs, and reasonable 

attorney fees under at least 15 U.S.C. §§ 1125(c), 1116, and 1117. 

Count 8: Trade Dress Dilution under Tex. Bus. & Com. Code § 16.103 

281. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

282. Defendants’ advertisements, promotions, offers to sell, sales, and/or distribution 

of the infringing cooler products violate § 16.103 of the Texas Business & Commerce Code. 

283. H-E-B’s cooler trade dress is entitled to protection under Texas law. H-E-B’s 

cooler trade dress includes unique, distinctive, and non-functional designs. H-E-B has 

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extensively and continuously promoted and used its cooler trade dress in the State of Texas. 

Through that extensive and continuous use, H-E-B’s cooler trade dress has become famous and a 

well-known indicator of the origin and quality of H-E-B’s coolers in the State of Texas generally 

and in this judicial district, and H-E-B’s cooler trade dress is widely recognized by the public 

throughout Texas and in this judicial district as a designation of the source of H-E-B and 

H-E-B’s coolers. H-E-B’s cooler trade dress also acquired substantial secondary meaning in the 

marketplace, including in the State of Texas and in this judicial district. Moreover, H-E-B’s 

cooler trade dress became famous and acquired this secondary meaning before Defendants 

commenced their unlawful use of H-E-B’s cooler trade dress in connection with the infringing 

cooler products. 

284. Defendants’ use of H-E-B’s cooler trade dress and colorable imitations thereof is 

likely to cause, and has caused, dilution of H-E-B’s famous cooler trade dress at least by eroding 

the public’s exclusive identification of H-E-B’s famous cooler trade dress with H-E-B, by 

lessening the capacity of H-E-B’s famous cooler trade dress to identify and distinguish H-E-B’s 

coolers, by associating H-E-B’s cooler trade dress with products of inferior quality, and by 

impairing the distinctiveness of H-E-B’s famous cooler trade dress. 

285. Defendants’ use of H-E-B’s cooler trade dress, and/or colorable imitations thereof 

has caused, and, unless enjoined, will continue to cause, substantial and irreparable injury to 

H-E-B for which H-E-B has no adequate remedy at law, including at least substantial and 

irreparable injury to the goodwill and reputation for quality associated with H-E-B’s cooler trade 

dress, H-E-B’s cooler products, and H-E-B. 

286. On information and belief, Defendants’ use of H-E-B’s cooler trade dress and 

colorable imitations thereof has been intentional, willful, and malicious. Defendants’ bad faith is 

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evidenced at least by the extreme similarity of the infringing cooler products to H-E-B’s cooler 

trade dress, as pictured above, and by Defendants’ continuing disregard for H-E-B’s rights. 

287. H-E-B is entitled to injunctive relief, and H-E-B is also entitled to recover at least 

Defendants’ profits, actual damages, enhanced profits and damages, and reasonable attorney fees 

under at least Tex. Bus. & Com. Code § 16.104. 

Count 9: Common Law Trademark Infringement 

288. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

289. Defendants’ advertisements, promotions, offers to sell, sales, and/or distribution 

of the infringing cooler products, in direct competition with H-E-B, constitute common law trade 

dress infringement, at least because Defendants’ use of H-E-B’s cooler trade dress and/or 

colorable imitations thereof is likely to cause consumer confusion as to the origin and/or 

sponsorship/affiliation of the infringing cooler products, at least by creating the false and 

misleading impression that the infringing cooler products are manufactured by, authorized by, or 

otherwise associated with H-E-B. 

290. H-E-B’s cooler trade dress is entitled to protection under the common law. 

H-E-B’s cooler trade dress includes unique, distinctive, and non-functional designs. H-E-B has 

extensively and continuously promoted and used its cooler trade dress in the State of Texas. 

Through that extensive and continuous use, H-E-B’s cooler trade dress has become a well-known 

indicator of the origin and quality of H-E-B’s coolers. H-E-B’s cooler trade dress has also 

acquired substantial secondary meaning in the marketplace. Moreover, H-E-B’s cooler trade 

dress acquired this secondary meaning before Defendants commenced their unlawful use of 

H-E-B’s cooler trade dress in connection with the infringing cooler products. 

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291. Defendants’ use of H-E-B’s cooler trade dress, and/or colorable imitations thereof 

has caused and, unless enjoined, will continue to cause substantial and irreparable injury to 

H-E-B for which H-E-B has no adequate remedy at law, including at least substantial and 

irreparable injury to the goodwill and reputation for quality associated with H-E-B’s cooler trade 

dress, H-E-B’s cooler products, and H-E-B. 

292. On information and belief, Defendants’ use of H-E-B’s cooler trade dress and 

colorable imitations thereof has been intentional, willful, and malicious. Defendants’ bad faith is 

evidenced at least by the extreme similarity of the infringing cooler products to H-E-B’s cooler 

trade dress, as pictured above, and by Defendants’ continuing disregard for H-E-B’s rights. 

293. H-E-B is entitled to injunctive relief, and H-E-B is also entitled to recover at least 

H-E-B’s damages, Defendants’ profits, punitive damages, costs, and reasonable attorney fees. 

Count 10: Common Law Unfair Competition 

294. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

295. Defendants’ advertisements, promotions, offers to sell, sales, and/or distribution 

of the infringing cooler products, in direct competition with H-E-B, constitute common law 

unfair competition, at least by palming off/passing off of Defendants’ goods, by simulating 

H-E-B’s cooler trade dress in an intentional and calculated manner that is likely to cause 

consumer confusion as to origin and/or sponsorship/affiliation of the infringing cooler products, 

at least by creating the false and misleading impression that the infringing cooler products are 

manufactured by, authorized by, or otherwise associated with H-E-B. Defendants have also 

interfered with H-E-B’s business. 

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296. H-E-B’s cooler trade dress is entitled to protection under the common law. 

H-E-B’s cooler trade dress includes unique, distinctive, and non-functional designs. H-E-B has 

extensively and continuously promoted and used H-E-B’s cooler trade dress for years in the State 

of Texas. Through that extensive and continuous use, H-E-B’s cooler trade dress has become a 

well-known indicator of the origin and quality of H-E-B’s coolers. H-E-B’s cooler trade dress 

has also acquired substantial secondary meaning in the marketplace. Moreover, H-E-B’s cooler 

trade dress acquired this secondary meaning before Defendants commenced their unlawful use of 

H-E-B’s cooler trade dress in connection with the infringing cooler products. 

297. Defendants’ use of H-E-B’s cooler trade dress has caused and, unless enjoined, 

will continue to cause substantial and irreparable injury to H-E-B for which H-E-B has no 

adequate remedy at law, including at least substantial and irreparable injury to the goodwill and 

reputation for quality associated with H-E-B’s cooler trade dress, H-E-B’s cooler products, and 

H-E-B. 

298. On information and belief, Defendants’ use of H-E-B’s cooler trade dress and 

colorable imitations thereof has been intentional, willful, and malicious. Defendants’ bad faith is 

evidenced at least by the extreme similarity of the infringing cooler products to H-E-B’s cooler 

trade dress, as pictured above, and by Defendants’ continuing disregard for H-E-B’s rights. 

299. H-E-B is entitled to injunctive relief, and H-E-B is also entitled to recover at least 

H-E-B’s damages, Defendants’ profits, punitive damages, costs, and reasonable attorney fees. 

Count 11: Common Law Misappropriation 

300. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

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301. Defendants’ advertisements, promotions, offers to sell, sales, and/or distribution 

of the infringing cooler products, in direct competition with H-E-B, constitute common law 

misappropriation. 

302. H-E-B created the products covered by H-E-B’s cooler trade dress through 

extensive time, labor, effort, skill, and money. Defendants have wrongfully used H-E-B’s cooler 

trade dress, and/or colorable imitations thereof in competition with H-E-B and gained a special 

advantage because Defendants were not burdened with the expenses incurred by H-E-B. 

Defendants has commercially damaged H-E-B, at least by causing consumer confusion as to 

origin and/or sponsorship/affiliation of the infringing cooler products, by creating the false and 

misleading impression that the infringing cooler products are manufactured by, authorized by, or 

otherwise associated with H-E-B, and by taking away sales that H-E-B would have made. 

303. H-E-B’s cooler trade dress is entitled to protection under the common law. 

H-E-B’s cooler trade dress includes unique, distinctive, and non-functional designs. H-E-B has 

extensively and continuously promoted and used H-E-B’s cooler trade dress for years in the State 

of Texas. Through that extensive and continuous use, H-E-B’s cooler trade dress has become a 

well-known indicator of the origin and quality of H-E-B’s coolers. H-E-B’s cooler trade dress 

has also acquired substantial secondary meaning in the marketplace. Moreover, H-E-B’s cooler 

trade dress acquired this secondary meaning before Defendants commenced their unlawful use of 

H-E-B’s cooler trade dress in connection with the infringing cooler products. 

304. Defendants’ use of H-E-B’s cooler trade dress has caused and, unless enjoined, 

will continue to cause substantial and irreparable commercial injury to H-E-B for which H-E-B 

has no adequate remedy at law, including at least substantial and irreparable injury to the 

goodwill and reputation for quality associated with H-E-B’s cooler trade dress, H-E-B’s cooler 

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products, and H-E-B. Moreover, as a result of their misappropriation, Defendants have profited 

and, unless such conduct is enjoined by this Court, will continue to profit by misappropriating 

the time, effort, and money that H-E-B invested in establishing the reputation and goodwill 

associated with H-E-B’s cooler trade dress, H-E-B, and H-E-B’s cooler products. 

305. Defendants’ misappropriation of H-E-B’s cooler trade dress and colorable 

imitations thereof has been intentional, willful, and malicious. Defendants’ bad faith is 

evidenced at least by the extreme similarity of the infringing cooler products to H-E-B’s cooler 

trade dress, as pictured above, and by Defendants’ continuing disregard for H-E-B’s rights. 

306. H-E-B is entitled to injunctive relief, and H-E-B is also entitled to recover at least 

H-E-B’s damages, Defendants’ profits, punitive damages, costs, and reasonable attorney fees. 

Count 12: Unjust Enrichment 

307. H-E-B realleges and incorporates by reference the preceding paragraphs as though 

fully set forth herein. 

308. Defendants’ advertisements, promotions, offers to sell, sales, and/or distribution 

of the infringing cooler products, in direct competition with H-E-B, constitute unjust enrichment, 

at least because Defendants has wrongfully obtained benefits at H-E-B’s expense. Defendants 

has also, inter alia, operated with an undue advantage. 

309. H-E-B created the products covered by H-E-B’s cooler trade dress through 

extensive time, labor, effort, skill, and money. Defendants has wrongfully used and is 

wrongfully using H-E-B’s cooler trade dress, and/or colorable imitations thereof, in competition 

with H-E-B, and has gained and is gaining a wrongful benefit by undue advantage through such 

use. Defendants has not been burdened with the expenses incurred by H-E-B, yet Defendants are 

obtaining the resulting benefits for their own business and products. 

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310. H-E-B’s cooler trade dress is entitled to protection under the common law. 

H-E-B’s cooler trade dress includes unique, distinctive, and non-functional designs. H-E-B has 

extensively and continuously promoted and used H-E-B’s cooler trade dress for years in the State 

of Texas. Through that extensive and continuous use, H-E-B’s cooler trade dress has become a 

well-known indicator of the origin and quality of H-E-B’s coolers. H-E-B’s cooler trade dress 

has also acquired substantial secondary meaning in the marketplace. Moreover, H-E-B’s cooler 

trade dress acquired this secondary meaning before Defendants commenced their unlawful use of 

H-E-B’s cooler trade dress and colorable imitations thereof in connection with the infringing 

cooler products. 

311. Defendants’ use of H-E-B’s cooler trade dress, and/or colorable imitations 

thereof, has caused and, unless enjoined, will continue to cause substantial and irreparable 

commercial injury to H-E-B for which H-E-B has no adequate remedy at law, including at least 

substantial and irreparable injury to the goodwill and reputation for quality associated with 

H-E-B’s cooler trade dress, H-E-B’s cooler products, and H-E-B. H-E-B accumulated this 

goodwill and reputation through extensive time, labor, effort, skill, and investment. Defendants 

have wrongfully obtained and are wrongfully obtaining a benefit at H-E-B’s expense by taking 

undue advantage and free-riding on H-E-B’s efforts and investments, and enjoying the benefits 

of H-E-B’s hard-earned goodwill and reputation. 

312. Defendants’ unjust enrichment at H-E-B’s expense has been intentional, willful, 

and malicious. Defendants’ bad faith is evidenced at least by the extreme similarity of the 

infringing cooler products to H-E-B’s cooler trade dress, as pictured above, and by Defendants’ 

continuing disregard for H-E-B’s rights. 

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313. H-E-B is entitled to injunctive relief, and H-E-B is also entitled to recover at least 

Defendants’ profits. 

PRAYER FOR RELIEF 

H-E-B requests the Court enter judgment against Defendants as follows: 

(A) That Defendants have infringed the patents-in-suit in violation of 35 U.S.C. 

§ 271; 

(B) That Defendants have infringed H-E-B’s KODI cooler trade dress, engaged in 

unfair competition and false designation of origin in violation of 15 U.S.C. § 1125(a); 

(C) That Defendants have diluted H-E-B’s KODI cooler trade dress in violation of 

15 U.S.C. § 1125(c) and Tex. Bus. & Com. Code § 16.103; 

(D) That Defendants have violated H-E-B’s common law rights in its KODI cooler 

trade dress; 

(E) That Defendants have engaged in common law unfair competition and 

misappropriation; 

(F) That Defendants have been unjustly enriched at H-E-B’s expense; 

(G) Awarding H-E-B its damages suffered as a result of Defendants’ infringement, 

including but not limited to Defendants’ profits, H-E-B’s actual damages, enhanced damages, 

exemplary damages, costs, prejudgment and post judgment interest, and reasonable attorney fees; 

(H) Finding this case to be exceptional within the meaning of 35 U.S.C. § 285; 

(I) Awarding H-E-B its costs, attorneys’ fees, expenses, and interest; 

(J) Trebling H-E-B’s damages from nICE, SSMG, Kuer Plastic, Kuer Kayak, and 

Kuer Outdoor due to willfulness; 

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(K) Enjoining further wrongful acts by Defendants that would further irreparably 

injure H-E-B and its intellectual property; 

(L) Ordering a recall of all infringing products sold and/or distributed, including 

providing a full refund for all recalled infringing products; 

(M) Ordering destruction of (i) all infringing products, (ii) any other products that use 

a copy, reproduction, or colorable imitation of H-E-B’s KODI cooler trade dress in Defendants’ 

possession or control, (iii) all plates, molds, and other means of making the infringing products, 

and (iv) all advertising materials related to the infringing products, including those on the 

Internet, pursuant to at least 15 U.S.C. § 1118. 

(N) Ordering Defendants to publish a public notice providing proper attribution of 

H-E-B’s KODI cooler trade dress to H-E-B, and to provide a copy of this notice to all customers, 

distributors, and/or others from whom the infringing products are recalled; 

(O) Ordering a bar on importation of infringing products and/or colorable imitations 

thereof into the United States, and barring entry of infringing products and/or colorable 

imitations thereof into any customhouse of the United States, pursuant to at least 15 U.S.C. 

§ 1125(b); and 

(P) Granting H-E-B such other and further relief as the Court may deem just and 

proper. 

DEMAND FOR JURY TRIAL 

H-E-B hereby demands trial by jury on all issues so triable pursuant to Fed. R. Civ. P. 38. 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 69 of 70
 -70- 

Dated: January 31, 2020 Respectfully submitted, 

/s/ Thomas N. Millikan 

Thomas N. Millikan, Texas Bar No. 24105276 

TMillikan@perkinscoie.com 

Joseph P. Reid (Pro Hac Vice Pending) 

JReid@perkinscoie.com 

Kyle R. Canavera (Pro Hac Vice Pending) 

KCanavera@perkinscoie.com 

PERKINS COIE LLP 

11452 El Camino Real, Suite 300 

San Diego, California 92130 

Telephone: 858.720.5700 

Facsimile: 858.720.5799 

Attorneys for Plaintiff 

H-E-B, LP 

Case 6:20-cv-00081-ADA Document 1 Filed 01/31/20 Page 70 of 70