This case was last updated from PACER on 07/30/2021 at 23:58:39 (UTC).

Rothy's, Inc. v. Birdies, Inc.

Case Summary

On April 5, 2021, Rothy’s, Inc. (“Rothy’s” or “Plaintiff”), represented by Dana Johannes Finberg of Arent Fox LLP, filed an intellectual property lawsuit against Defendant Birdies, Inc. (“Birdies” or “Defendant”) seeking permanent injunctive relief and other damages for alleged infringement of ornamental design patents owned by Plaintiff. This case was filed in the U.S. District Court for the Northern District of California, San Francisco Division with Judge Nathanael M. Cousins presiding. 

 

The Plaintiff alleged that “Rothy’s owns exclusive rights in the ornamental designs claimed in United States Design Patent Nos. D885,016, D885,017, D909,718, and D870,425 (collectively, the “Rothy’s Asserted Design Patents”). The Plaintiffs have provided a description of all the designs in their submissions including but not limited comparison of Birdie’s infringing products with that of Rothy’s original designs.”

 

In the complaint, Rothy’s has alleged that “Birdies has used and continues to use the claimed designs of the Rothy’s Asserted Design Patents, without Rothy’s permission, on shoes that Birdies makes, uses, offers for sale, sells, and/or imports into the United States.” “Instead of pursuing independent product development, Birdies has chosen to copy Rothy’s innovative and distinctive product designs in violation of Rothy’s valuable intellectual property rights. Consumers have immediately associated Birdies’ newly-launched, infringing shoe with Rothy’s (as evident from annexure Instagram posts).” 

 

Rothy’s has further alleged “in respect of Design Patents “Birdies’ bad faith intent in their copying of Rothy’s designs is underscored by their propensity to draw liberal “inspiration” from Rothy’s products, leading up to the release of the Infringing Product. For example, in or around, July 2020, Birdies released a colorway pattern of its shoe model “The Swan,” that appears to have been derived from a colorway pattern offered for Rothy’s “Marta Ferri x Rothy’s” The Flat shoes, which had been released in October 2019.”

 

There are four claims for relief laid down by the Rothy’s. The first claim is for the alleged infringement of U.S. Patent No. D885,016 under 35 U.S.C. § 283. The second claim is for the alleged infringement of U.S. Patent No. D885,017 unless under 35 U.S.C. § 271. The third claim is for the alleged infringement of U.S. Patent No. D909,718 unless under 35 U.S.C. § 271. The fourth claim is for the alleged infringement of U.S. Patent No. D870,425 unless under 35 U.S.C. § 271.

 

In its prayer for relief, Rothy’s has requested the Court to adjudge that Birdies has infringed the Rothy’s Asserted Design Patents by making, using, offering to sell, selling, and/or importing its infringing shoes into the United States; and thus, enjoin all connected persons from infringing the Rothy’s Asserted Design Patents. It has further requested the Court to order requiring Birdies to pay Rothy’s damages adequate to compensate Rothy’s for Birdies’ alleged infringements of the Rothy’s Asserted Design Patents pursuant to 35 U.S.C. § 284, or the total profit made by Birdies from its alleged infringements of the Rothy’s Asserted Design Patents pursuant to 35 U.S.C. § 289. It has further requested that the Rothy’s be awarded damages up to three times the amount found or assessed, its reasonable attorneys’ fees along with cost & expenses of the action, pre-judgment and post-judgment interest and such other relief as the Court may deem just & proper.

 

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Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    3:21-CV-02438

  • Filing Date:

    04/05/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Intellectual Property - Patent

  • Courthouse:

    California Northern District

Judge Details

Presiding Judges

Nathanael M. Cousins

Vince Chhabria

 

Party Details

Plaintiff and Counter Defendant

Rothy's, Inc.

Defendant and Counter Claimant

Birdies, Inc.

Attorney/Law Firm Details

Plaintiff and Counter Defendant Attorneys

Michelle Mancino Marsh

Attorney at Arent Fox LLP

1301 Avenue Of The Americas

New York, NY 10019

Dana Johannes Finberg

Attorney at Arent Fox LLP

55 2Nd Street, 21St Floor

San Francisco, CA 94105

Jeff Leung

Attorney at Arent Fox LLP

55 2Nd Street, 21St Floor

San Francisco, CA 94105

Peter Leonard Menchini

Attorney at Arent Fox LLP

1301 Avenue Of The Americas

New York, NY 10019

Defendant and Counter Claimant Attorneys

Jessica Andrea Martinez Kaempf

Attorney at Fenwick and West LLP

1191 Second Avenue, 10Th Floor

Seattle, WA 98101

David K. Tellekson

Attorney at Fenwick and West LLP

1191 Second Avenue, 10Th Floor

Seattle, WA 98101

Shannon Elizabeth Turner

Attorney at Fenwick and West LLP

801 California Street

Mountain View, CA 94041

 

Court Documents

#33

(#33) Order by Judge Vince Chhabria granting #32 Corrected Stipulated Proposed Schedule. Amended Pleadings due by 9/6/2021. Case Management Statement due by 1/26/2022. Further Case Management Conference set for 2/2/2022 02:00 PM in San Francisco, - Videoconference Only. Final Pretrial Conference set for 9/20/2022 10:00 AM in San Francisco, Courtroom 04, 17th Floor. Jury Trial set for 10/3/2022 09:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. Motion Hearing set for 6/9/2022 02:00 PM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.(vclc1S, COURT STAFF) (Filed on 7/23/2021) (Entered: 07/23/2021)

#32

(#32) STIPULATION WITH PROPOSED ORDER Corrected Stipulated Proposed Schedule filed by Rothy's, Inc.. (Leung, Jeff) (Filed on 7/19/2021) (Entered: 07/19/2021)

#30

(#30) STIPULATION WITH PROPOSED ORDER Joint Stipulation and [Proposed] Order filed by Rothy's, Inc.. (Leung, Jeff) (Filed on 7/9/2021) (Entered: 07/09/2021)

#28

(#28) JOINT CASE MANAGEMENT STATEMENT filed by Rothy's, Inc.. (Leung, Jeff) (Filed on 6/30/2021) (Entered: 06/30/2021)

#27

(#27) ANSWER to Counterclaim Plaintiff/Counterclaim Defendant Rothy's, Inc.'s Answer to Defendant/Counterclaim Plaintiff Birdies, Inc.'s Counterclaims byRothy's, Inc.. (Leung, Jeff) (Filed on 6/29/2021) (Entered: 06/29/2021)

#26

(#26) Order by Judge Vince Chhabria granting #25 Motion to Withdraw as Attorney..(vclc1S, COURT STAFF) (Filed on 6/18/2021) (Entered: 06/18/2021)

25 #1

Proposed Order

#25

(#25) MOTION to Withdraw as Attorney for Plaintiff Rothy's, Inc. - Peter L. Menchini filed by Rothy's, Inc.. Responses due by 7/1/2021. Replies due by 7/8/2021. (Attachments: #1 Proposed Order)(Menchini, Peter) (Filed on 6/17/2021) (Entered: 06/17/2021)

#24

(#24) ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Finberg, Dana) (Filed on 6/16/2021) (Entered: 06/16/2021)

#5

(#5) Summons Issued as to Birdies, Inc. (sfbS, COURT STAFF) (Filed on 4/6/2021) (Entered: 04/06/2021)

#4

(#4) Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 6/30/2021. Initial Case Management Conference set for 7/7/2021 10:00 AM in San Jose, Courtroom 5, 4th Floor. (sfbS, COURT STAFF) (Filed on 4/6/2021) (Entered: 04/06/2021)

#2

(#2) Proposed Summons. (Finberg, Dana) (Filed on 4/5/2021) (Entered: 04/05/2021)

1 #5

Civil Cover Sheet

1 #4

Exhibit Exh D

1 #3

Exhibit Exh C

1 #2

Exhibit Exh B

1 #1

Exhibit Exh A

#1

(#1) COMPLAINT against Birdies, Inc. ( Filing fee $ 402, receipt number 0971-15796133.). Filed byRothy's, Inc.. (Attachments: #1 Exhibit Exh A, #2 Exhibit Exh B, #3 Exhibit Exh C, #4 Exhibit Exh D, #5 Civil Cover Sheet)(Finberg, Dana) (Filed on 4/5/2021) (Entered: 04/05/2021)

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Docket Entries

  • 07/23/2021
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  • Docket(#33) Order by Judge Vince Chhabria granting #32 Corrected Stipulated Proposed Schedule. Amended Pleadings due by 9/6/2021. Case Management Statement due by 1/26/2022. Further Case Management Conference set for 2/2/2022 02:00 PM in San Francisco, - Videoconference Only. Final Pretrial Conference set for 9/20/2022 10:00 AM in San Francisco, Courtroom 04, 17th Floor. Jury Trial set for 10/3/2022 09:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria. Motion Hearing set for 6/9/2022 02:00 PM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.(vclc1S, COURT STAFF) (Filed on 7/23/2021) (Entered: 07/23/2021)

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  • 07/19/2021
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  • Docket(#32) STIPULATION WITH PROPOSED ORDER Corrected Stipulated Proposed Schedule filed by Rothy's, Inc.. (Leung, Jeff) (Filed on 7/19/2021) (Entered: 07/19/2021)

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  • 07/14/2021
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  • Docket(#31) ORDER re #30 STIPULATION WITH PROPOSED ORDER. No later than 5 days from the date of this order, the parties are ordered to file a corrected stipulated proposed schedule in compliance with the Standing Order for Civil Cases Before Judge Chhabria and the Standing Order for Civil Trials Before Judge Chhabria. The parties should also consult Judge Chhabria's public calendar for available dates for case management conferences. Finally, any Daubert challenges relevant to a dispositive motion should be embedded in the briefing on that motion, rather than a separate parallel motion. Signed by Judge Vince Chhabria on 7/14/2021. (This is a text-only entry generated by the court. There is no document associated with this entry.) (vclc1S, COURT STAFF) (Filed on 7/14/2021) (Entered: 07/14/2021)

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  • 07/09/2021
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  • Docket(#30) STIPULATION WITH PROPOSED ORDER Joint Stipulation and [Proposed] Order filed by Rothy's, Inc.. (Leung, Jeff) (Filed on 7/9/2021) (Entered: 07/09/2021)

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  • 07/07/2021
  • Docket(#29) Minute Entry for proceedings held before Judge Vince Chhabria: Initial Case Management Conference held via Zoom on 7/7/2021.The parties are ordered to file by 7/9/2021, a stipulation and proposed order containing a revised case schedule with actual hearing and due dates, and center around a trial on 10/3/2022, pretrial conference on 9/20/2022, at 10:00 a.m., and last day to hear dispositive motions of 6/9/2022. The stipulation should include a date for a further case management conference in February or March of 2022.Total Time in Court: 11 minutes. Court Reporter: Hearing recorded via Zoom: 3:13 - 3:24. Plaintiff Attorney: Dana Finberg, Michelle Marsh, and Jeff Leung. Defendant Attorney: David Tellekson and Jessica Kaempf. (This is a text-only entry generated by the court. There is no document associated with this entry.) (knmS, COURT STAFF) (Date Filed: 7/7/2021) (Entered: 07/08/2021)

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  • 06/30/2021
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  • Docket(#28) JOINT CASE MANAGEMENT STATEMENT filed by Rothy's, Inc.. (Leung, Jeff) (Filed on 6/30/2021) (Entered: 06/30/2021)

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  • 06/29/2021
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  • Docket(#27) ANSWER to Counterclaim Plaintiff/Counterclaim Defendant Rothy's, Inc.'s Answer to Defendant/Counterclaim Plaintiff Birdies, Inc.'s Counterclaims byRothy's, Inc.. (Leung, Jeff) (Filed on 6/29/2021) (Entered: 06/29/2021)

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  • 06/18/2021
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  • Docket(#26) Order by Judge Vince Chhabria granting #25 Motion to Withdraw as Attorney..(vclc1S, COURT STAFF) (Filed on 6/18/2021) (Entered: 06/18/2021)

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  • 06/17/2021
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  • Docket(#25) MOTION to Withdraw as Attorney for Plaintiff Rothy's, Inc. - Peter L. Menchini filed by Rothy's, Inc.. Responses due by 7/1/2021. Replies due by 7/8/2021. (Attachments: #1 Proposed Order)(Menchini, Peter) (Filed on 6/17/2021) (Entered: 06/17/2021)

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  • 06/16/2021
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  • Docket(#24) ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Finberg, Dana) (Filed on 6/16/2021) (Entered: 06/16/2021)

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13 More Docket Entries
  • 04/08/2021
  • Docket(#10) REASSIGNED CASE - NOTICE OF NEW HEARING DATE: You are notified that the Court has scheduled an Initial Case Management Conference before Judge Vince Chhabria upon reassignment. For a copy of Judge Chhabria's Standing Order and other information, please refer to the Court's website at www.cand.uscourts.gov. Case Management Statement due by 6/30/2021. Initial Case Management Conference set for 7/7/2021, 02:00 PM, by Videoconference Only. This proceeding will be held via a Zoom webinar.Webinar Access: All counsel, members of the public, and media may access the webinar information at #https://www.cand.uscourts.gov/vc Court Appearances:< /b< Advanced notice is required of counsel or parties who wish to be identified by the court as making an appearance or will be participating in the argument at the hearing. A list of names and emails must be sent to the CRD at vccrd@cand.uscourts.gov no later than Thursday, July 1, 2021, by no later than 10:00 a.m.General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.Zoom Guidance and Setup: #https://www.cand.uscourts.gov/zoom/. (This is a text-only entry generated by the court. There is no document associated with this entry.)(knmS, COURT STAFF) (Filed on 4/8/2021) (Entered: 04/08/2021)

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  • 04/08/2021
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  • Docket(#9) ORDER REASSIGNING CASE. Case reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Vince Chhabria for all further proceedings. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras. Magistrate Judge Nathanael M. Cousins no longer assigned to case. Reassignment Order signed by Clerk on 4/8/2021. (Attachments: #1 Notice of Eligibility for Video Recording)(bwS, COURT STAFF) (Filed on 4/8/2021) (Entered: 04/08/2021)

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  • 04/07/2021
  • Docket(#8) CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because a party has not consented to the jurisdiction of a Magistrate Judge. You will be informed by separate notice of the district judge to whom this case is reassigned. ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED. This is a text only docket entry; there is no document associated with this notice. (lmh, COURT STAFF) (Filed on 4/7/2021) (Entered: 04/07/2021)

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  • 04/07/2021
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  • Docket(#7) REPORT on the filing or determination of an action regarding a Patent or Trademark (cc: form mailed to register). (Finberg, Dana) (Filed on 4/7/2021) (Entered: 04/07/2021)

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  • 04/07/2021
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  • Docket(#6) CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Rothy's, Inc... (Finberg, Dana) (Filed on 4/7/2021) (Entered: 04/07/2021)

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  • 04/06/2021
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  • Docket(#5) Summons Issued as to Birdies, Inc. (sfbS, COURT STAFF) (Filed on 4/6/2021) (Entered: 04/06/2021)

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  • 04/06/2021
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  • Docket(#4) Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 6/30/2021. Initial Case Management Conference set for 7/7/2021 10:00 AM in San Jose, Courtroom 5, 4th Floor. (sfbS, COURT STAFF) (Filed on 4/6/2021) (Entered: 04/06/2021)

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  • 04/05/2021
  • Docket(#3) Case assigned to Magistrate Judge Nathanael M. Cousins. Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 4/19/2021. (mbcS, COURT STAFF) (Filed on 4/5/2021) (Entered: 04/05/2021)

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  • 04/05/2021
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  • Docket(#2) Proposed Summons. (Finberg, Dana) (Filed on 4/5/2021) (Entered: 04/05/2021)

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  • 04/05/2021
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  • Docket(#1) COMPLAINT against Birdies, Inc. ( Filing fee $ 402, receipt number 0971-15796133.). Filed byRothy's, Inc.. (Attachments: #1 Exhibit Exh A, #2 Exhibit Exh B, #3 Exhibit Exh C, #4 Exhibit Exh D, #5 Civil Cover Sheet)(Finberg, Dana) (Filed on 4/5/2021) (Entered: 04/05/2021)

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