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7/31/2019 Salon Spa Supply v. Touspa Et. Al.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SALON SPA SUPPLY LLC, a
Georgia Corporation,
Plaintiff,
v.
TOUSPA, LLC, a Georgia
Corporation; MINH-TUANNGOC HOANG, an Individual;
and TRAN PHAM, an Individual,
Defendants.
Case No. _________________
JURY TRIAL DEMANDED
VERIFIED COMPLAINT FOR INJUNCTIVE RELIEF AND
DAMAGES, AND DEMAND FOR JURY TRIAL
COMES NOW Salon Spa Supply LLC, Plaintiff in the above-styled cause,
by and through its undersigned counsel, and hereby brings this Verified Complaint
for Injunctive Relief and Damages against Defendants, TOUSPA, LLC,
Mr. MINH-TUAN NGOC HOANG (also known as TONY HOANG), and his
spouse, Ms. TRAN PHAM. In support of its claims, Plaintiff respectfully shows
this Honorable Court the following:
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NATURE OF THE ACTION
1. This is a civil action at law and in equity for intentional breach ofcontract, willful design patent infringement, and unfair competition, arising under
the Patent Act, the Lanham Act, Georgia law, and common law.
2. Plaintiff, SALON SPA SUPPLY LLC, seeks (a) to enforce itsPartnership Interest Purchase Agreement (the Agreement) with Defendant
TONY HOANG; (b) to recover liquidated damages, as agreed by the parties to the
Agreement, in the amount of One Hundred Forty-Four Thousand Dollars
($ 144,000.00) arising out of TONY HOANGs intentional breach of the
Agreement; (c) to recover compensatory and enhanced damages under the Patent
Act, 35 U.S.C. 271 et seq., for Defendants intentional copying and willful
infringement of Plaintiffs patented base and foot bath for pedicure chairs; (d) to
recover compensatory and treble damages for Defendants unfair competition; and
(e) to recover its litigation expenses and attorneys fees arising out of Defendants
pattern of dishonest, intentional, and bad faith conduct.
THE PARTIES
3. Plaintiff, SALON SPA SUPPLY LLC, is a limited liability companyorganized and existing under the laws of the State of Georgia and having a
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principal office located at 1855 Beaver Ridge Circle, Suite A, Norcross, Georgia
30071-3800, in Gwinnett County, Georgia.
4. Defendant, TOUSPA, LLC, is a limited liability company organizedand existing under the laws of the State of Georgia and having a principal office
located at 2245 Button Gwinnett Drive, Atlanta, Georgia 30340-1516, in Gwinnett
County, Georgia. Service of process may be effectuated by serving its registered
agent, Defendant TRAN PHAM, at her home address (below), at TOUSPAs
address, or at any other place and by any other means proper under Georgia law.
5. Defendant, MINH-TUAN NGOC HOANG (TONY HOANG), is aGeorgia resident who may be served with a summons and a copy of this Complaint
at his last known address, 3714 Marlborough Drive, Tucker, Georgia 30084-8330,
in DeKalb County, Georgia, or at any other place and by any means proper under
Georgia law.
6. Defendant, TRAN PHAM, is a Georgia resident, an organizer of,member of, and registered agent for Defendant TOUSPA, LLC, and the legal
spouse of Defendant TONY HOANG, and she may be served with a summons and
a copy of this Complaint at her last known address, 394 Hope Hollow Road,
Loganville, Georgia 30052-2280, in Gwinnett County, Georgia, or at any other
place and by any means proper under Georgia law.
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JURISDICTION AND VENUE
7. This action for patent infringement arises under the provisions of 35U.S.C. 271 et seq. This Court has subject matter jurisdiction over causes of
action for patent infringement pursuant to 28 U.S.C. 1331 and 1338.
8. This action for unfair competition and false designation or originarises under the Lanham Act, 35 U.S.C. 1051 et seq. This Court has subject
matter jurisdiction over causes of action under the Lanham Act pursuant to 28
U.S.C. 1331 and 1338, and Section 39 of the Lanham Act, 15 U.S.C. 1121.
9. This Court has jurisdiction over the common law claims in this actionpursuant to 28 U.S.C. 1367(a) , as the common law claims are so related to the
federal claims that they form part of the same case or controversy and derive from
a common nucleus of operative fact.
10. Defendant, TOUSPA, LLC, is subject to this Courts personaljurisdiction because TOUSPA, LLC, is a resident corporate entity of the State of
Georgia which has transacted business and committed tortious acts within this
State including, at least, importing, making, using, offering to sell and/or selling
products that are substantially similar imitations of Plaintiff SALON SPA
SUPPLY LLCs patented products and/or Plaintiffs unique patented design.
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11. Defendant, TONY HOANG, is subject to this Courts personaljurisdiction because Defendant TONY HOANG is a resident of the State of
Georgia who has transacted business and committed tortious acts within this State
including, at least, breach of contract and importing, making, using, offering to sell
and/or selling products that are substantially similar imitations of Plaintiff SALON
SPA SUPPLY LLCs patented products and/or Plaintiffs unique patented design.
12. Defendant, TRAN PHAM, is subject to this Courts personaljurisdiction because Defendant TRAN PHAM is a resident of the State of Georgia
who has transacted business and committed tortious acts within this State by
importing, making, using, offering to sell and/or selling of products that are
substantially similar imitations of Plaintiff SALON SPA SUPPLY LLCs patented
products and/or Plaintiffs unique patented design.
13. Venue is proper in this Court under the provisions of 28 U.S.C. 1391 and 1400, because each Defendant has transacted business in this judicial
district, and because each Defendant has committed and/or induced acts of patent
infringement in this judicial district.
14. Venue is proper within the Atlanta Division because the conductdescribed herein took place within the Atlanta Division of this judicial district.
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FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
Salon Spa Supply LLC
15. On or about April 9, 2008, SALON SPA SUPPLY, LLC, Plaintiff inthis action, was duly organized under the laws of the State of Georgia.
16. On or about May 2, 2008, Defendant, TONY HOANG, became theowner of a one-fifth (twenty percent) interest in SALON SPA SUPPLY LLC. A
true and correct copy of the Partnership Agreement is attached hereto as Exhibit C.
Plaintiffs Patented Tub Design
17. On or about August 31, 2010, U.S. Patent Number D622,858 S (the858 Patent), entitled FEET BATHTUB, was duly and lawfully issued to Mr.
Danny Jan, the named inventor of the subject matter claimed in the 858 Patent. A
true and correct copy of the 858 Patent is attached hereto as Exhibit B.
18. Plaintiff SALON SPA SUPPLY LLC is the owner of all right, title,and interest in and to the 858 Patent.
19. Plaintiffs commercial pedicure spa set known as the ZETA model isone of Plaintiffs products that includes features of Plaintiffs patented base and
foot bath.
20. Since as early as January of 2010, Plaintiff SALON SPA SUPPLYLLC has been selling its base and foot bath product, including the ZETA model.
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Plaintiffs patented ZETA model is depicted in photographs attached hereto as
Exhibit B-1.
Defendant TONY HOANGs Tortious and Bad Faith Conduct DuringHis Part Ownership of Salon Spa Supply LLC
21. The Shipment: On or about September 3, 2010, Defendant TONYHOANG shipped one of Plaintiffs ZETA pedicure spa sets to his father-in-law,
Mr. Pham Thanh, in Vietnam. Mr. Pham Thanh is the father of Defendant, TRAN
PHAM. A true and correct copy of the Commercial Invoice for this shipment is
attached hereto as Exhibit D.
22. Defendant TONY HOANG made this shipment without theknowledge of his fellow partners at Salon Spa Supply LLC, and without
authorization by Salon Spa Supply LLC.
23. After Defendant TONY HOANG withdrew from the partnership, oneof the remaining partners found a copy of the Commercial Invoice (Exhibit D) for
the shipment.
24. The Domain Name: On or about February 2, 2011, while still holdingan ownership interest in SALON SPA SUPPLY LLC, Defendant TONY HOANG
registered the domain name, www.TOUSPA.com. A true and correct copy of the
WHO-IS report for this domain name is attached hereto as Exhibit E.
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25. Company Assets and Data on Tonys Work Computer: During thetime period when Defendant TONY HOANG held an ownership interest in
SALON SPA SUPPLY LLC, the company provided him with a company
computer for his use. The information on this computer remained the property of
SALON SPA SUPPLY LLC, which provided and paid for computer backup
services in order to assure safekeeping of company information and data.
26. Near the end of the time period when Defendant TONY HOANG heldan ownership interest in SALON SPA SUPPLY LLC a few days before April 4,
2011 Defendant TONY HOANG accessed his company computer, made a copy
of all or most of the company information stored on his company computer, and
then destroyed the company information and data that had been stored on his
company computer.
27. When confronted, Defendant TONY HOANG admitted making acopy of all or most of the company information stored on his company computer.
28. When asked to return the company information that was once storedon his company computer, Defendant TONY HOANG claimed that he had already
deleted his copy of the company information.
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The Partnership Interest Purchase Agreement betweenDefendant TONY HOANG and Plaintiff, Salon Spa Supply LLC
(The Agreement)
29. On or about April 4, 2011, Plaintiff and Defendant TONY HOANGentered into a Partnership Interest Purchase Agreement (the Agreement). A true
and correct copy of the Partnership Interest Purchase Agreement is attached hereto
as Exhibit A.
30. The Non-Competition Restriction: The Agreement includes specificlimitations on Defendant TONY HOANGs ability to engage in a business that is
similar to Plaintiffs business. Specifically, paragraph 4 of the Agreement recites:
4. NON-COMPETITION. No Competition. For a period of one(1) year following the date [of] signing this agreement Seller[TONY HOANG] shall not directly or indirectly, either individually
or with others, engage or have any interest, as an owner, employee,representative, agent, consultant or otherwise, in any business, whichis own or have interest [sic] by family or immediately familymembers or relatives, that is similar to the business conducted by SSS,LLC [SALON SPA SUPPLY, LLC] within the twelve and 7/10th(12.7) miles radius from SSS, LLCs Norcross office. . ExhibitA, The Agreement, at 4, pages 2-3.
31. The Non-Disclosure Restriction: The Agreement includes specificlimitations on the disclosure of Confidential Information to any person not
employed by SALON SPA SUPPLY, LLC. Paragraph 5 of the Agreement recites:
5. NON-DISCLOSURE [OF] CONFIDENTIALINFORMATION. No Disclosure. Seller [TONY HOANG] shallnot, at any time, use or disclose any Confidential Information to any
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person not employed by SSS, LLC [SALON SPA SUPPLY, LLC]without the prior written authorization of SSS, LLC . The parties
hereto stipulate that all Confidential Information is and will beimportant and material and does and will contribute significantly tothe successful conduct of SSS, LLCs business and to its goodwill..
Confidential Information Definition. For purposes of thisagreement, the term Confidential Information means informationwhich not generally known in SSS, LLCs industry, which has beenproprietary to SSS, LLC, and which been subject to efforts by SSS,LLC to maintain its confidentiality, . Exhibit A, The Agreement,
at 5, page 3.
32. The Agreement to Return Company Assets and Data: TheAgreement requires Defendant TONY HOANG to return all company assets and
data. Paragraph 6 of the Agreement recites:
6. Company Assets and Company Information. Seller [TONYHOANG] have to return [sic] all company assets and data related [to]
or under Salon Spa Supply, LLC name. Data includes any customers,vendors, designings, drawings, company domains, hosting websites,all company access, and financial informations [sic]. Exhibit A, TheAgreement, at 6, page 3.
33. Because the parties agreed that Plaintiffs damages from a potentialbreach by Defendant would not be readily ascertainable, Defendant TONY
HOANG and Plaintiff agreed upon and included a liquidated damages provision in
the Agreement. Specifically, Defendant TONY HOANG acknowledged and
agreed to pay liquidated damages in the amount of One Hundred Forty-four
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Thousand Dollars ($ 144,000.00) in the event of his breach of any provision of the
Agreement. Exhibit A, The Agreement, page 4.
Defendant TONY HOANGs Tortious, Bad Faith, and InfringingConduct, Including Breach of Multiple Provisions of the Agreement
A. Breach of the Non-Competition Agreement
34. On or about May 16, 2011 just 42 days after the Agreement, andduring the one-year non-competition period Defendant TONY HOANGs spouse
(Defendant TRAN PHAM) submitted the papers necessary to organize TOUSPA,
LLC, in Georgia. Defendant TRAN PHAM listed herself as the sole officer and
registered agent, and using an address in Loganville, Georgia, as the business
address. A true and correct copy of the Certificate of Organization for this
corporate entity is attached hereto as Exhibit F.
35. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG engaged in the
business of TOUSPA, LLC at a location within 12.7 miles of Plaintiffs Norcross
office; including, specifically, at his personal residence which is located
approximately 10.8 miles from Plaintiffs Norcross office.
36. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG engaged in the
business of TOUSPA, LLC at a location within 12.7 miles of Plaintiffs Norcross
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office; including, specifically, at a facility leased or rented by TOUSPA, LLC,
which is located approximately 5.3 miles from Plaintiffs Norcross office.
B. Breach of the Non-Disclosure Agreement
37. Defendant TONY HOANG acknowledged and agreed that he shallnot, at any time, use or disclose any Confidential Information to any person not
employed by SSS, LLC [SALON SPA SUPPLY, LLC] without the prior written
authorization of SSS, LLC. The Agreement, Exhibit A at 5, page 3 (underlining
added).
38. Plaintiffs Confidential Information includes information aboutPlaintiffs patented base and foot bath design for pedicure chairs, including but not
limited to the manufacturing process, mold specifications, materials, and
dimensions. This Confidential Information is not generally known in the industry,
is proprietary to Plaintiff, and has been subject to reasonable efforts by Plaintiff to
maintain its confidentiality.
39. Defendant TONY HOANG has been and is currently using PlaintiffsConfidential Information, without prior written authorization by Plaintiff, in order
to unlawfully copy Plaintiffs products and to unlawfully and willfully infringe on
Plaintiffs patented base and foot bath design.
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40. Defendant TONY HOANG has been and is currently disclosing toothers Plaintiffs Confidential Information, without prior written authorization by
Plaintiff, in order to unlawfully copy Plaintiffs products and to unlawfully and
willfully infringe on Plaintiffs patented base and foot bath design. For example,
Defendant TONY HOANG, either alone or together with Defendants TRAN
PHAM and/or TOUSPA LLC, has been and is now currently disclosing Plaintiffs
Confidential Information to others, including one of TOUSPAs manufacturers:
Nautran LLC located in Ho Chi Minh City, Vietnam. A true and correct copy of a
Bill of Lading is attached hereto as Exhibit J.
C. Breach of the Duty to Return Company Assets and Data
41. Defendant TONY HOANG acknowledged and agreed that he mustreturn all company assets and data related [to] or under Salon Spa Supply, LLC
name. Exhibit A, The Agreement, at 6, page 3.
42. Plaintiffs company assets and data includes the computer files thatwere copied and retained for later use by Defendant TONY HOANG shortly
before the Agreement was signed.
43. Plaintiffs company assets and data includes an example layout designand floor plan for a spa. A true and correct copy of Plaintiffs Deluxe Nails &
Spa floor plan is attached hereto as Exhibit K-1. Also, a true and correct copy of
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an advertisement by Plaintiff which includes the Deluxe Nails & Spa floor plan
is attached hereto as Exhibit K-2.
44. Defendant TONY HOANG, either alone or together with DefendantsTRAN PHAM and/or TOUSPA LLC, published a copy of Plaintiffs Deluxe
Nails & Spa floor plan in an advertisement that was placed in Tr magazine. A
true and correct copy of an advertisement in Tr magazine, dated 24 August 2012,
featuring TOUSPAs unauthorized copy of Plaintiffs floor plan is attached hereto
as Exhibit L. As shown in the advertisement, the title Deluxe Nails & Spa has
been replaced with the text TOUSPA, LLC Conceptual Design.
D. Willful Infringement of Plaintiffs Design Patent
45. Each Defendant, at all times relevant hereto, has had actualknowledge of the 858 Patent and the subject matter claimed in the 858 Patent.
46. Since at least as early as April 2012, Defendant TONY HOANG,either alone or together with Defendants TRAN PHAM and/or TOUSPA LLC, has
been and is now currently willfully and directly infringing the 858 Patent and/or
indirectly infringing the 858 Patent (by way of inducing infringement and/or
contributing to the infringement) in the State of Georgia, in this judicial district,
and elsewhere in the United States, by conduct that includes importing, making,
using, offering to sell, and/or selling one or more products that infringe the 858
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Patent, including but not limited to the TOUSPA M2 or Sage base and foot
bath for pedicure chairs (hereinafter collectively referred to as the accused
TOUSPA products). The accused TOUSPA products are depicted in photographs
and advertisements attached hereto as Exhibits M-1 (the product in the center),
M-2, and M-3.
47. On or about April 26, 2012, Defendant TONY HOANG, either aloneor together with Defendants TRAN PHAM and/or TOUSPA LLC, willfully and
directly infringed the 858 Patent and/or indirectly infringed the 858 Patent (by
way of inducing infringement and/or contributing to the infringement) in the State
of Georgia, in this judicial district, by selling two (2) model M2 Pedicure Spa
Tub products to Mr. Tuan Doan in Lawrenceville, Georgia. A true and correct
copy of an Invoice is attached hereto as Exhibit N.
Defendant TRAN PHAMs Tortious, Bad Faith, andInfringing Conduct
48. Upon information and belief, on or about September 3, 2010,Defendant TRAN PHAM participated in the secret shipment to her father, Mr.
Pham Thanh in Vietnam, of one of Plaintiffs commercial pedicure spa sets known
as the ZETA model. A true and correct copy of the Commercial Invoice for this
shipment is attached hereto as Exhibit D.
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49. On or about May 16, 2011, Defendant TRAN PHAM submitted thepapers necessary to organize TOUSPA, LLC, in Georgia. Defendant TRAN
PHAM listed herself as the sole officer and registered agent. Defendant TRAN
PHAM, either alone or together with her spouse, Defendant TONY HOANG, used
the Loganville address (394 Hope Hollow Road, Loganville, Georgia 30052) for
TOUSPA, LLC. A true and correct copy of the Certificate of Organization for this
corporate entity is attached hereto as Exhibit F.
50. On or about May 16, 2011, and continuing thereafter, DefendantTRAN PHAM engaged in or had an interest in the business of TOUSPA, LLC, in
which a family member (her spouse, TONY HOANG) also had an ownership or
other interest.
51. After the formation of TOUSPA, LLC, and continuing thereafter,Defendant TRAN PHAM, without authorization by Plaintiff, used and/or disclosed
to others Plaintiffs Confidential Information.
52. After the formation of TOUSPA, LLC, and continuing thereafter,Defendant TRAN PHAM, has kept and maintained at least one copy of Plaintiffs
company assets and data.
53. Since at least as early as April 2012, Defendant TRAN PHAM, eitheralone or together with Defendants TONY HOANG and/or TOUSPA LLC, has
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been and is now currently willfully and directly infringing the 858 Patent and/or
indirectly infringing the 858 Patent.
Defendant TOUSPA, LLCs Tortious, Bad Faith, andInfringing Conduct
54. Since at least about May 16, 2011, and continuing thereafter,Defendant TOUSPA, LLC, has been engaged in a business that is similar to the
business conducted by Plaintiff, SALON SPA SUPPLY LLC.
55. Defendant TOUSPA, LLC, without authorization by Plaintiff, hasused and/or disclosed to others Plaintiffs Confidential Information.
56. Defendant TOUSPA, LLC, has kept and maintained at least one copyof Plaintiffs company assets and data.
57.
Since at least as early as April 2012, Defendant TOUSPA LLC, either
alone or together with Defendants TONY HOANG and/or TRAN PHAM, has been
and is now currently willfully and directly infringing the 858 Patent and/or
indirectly infringing the 858 Patent.
58. Defendants are continuing to make, use, import, offer for sale, and/orsell one or more products that infringe the 858 Patent and will continue to do so
unless enjoined by this Court.
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COUNT 1
BREACH OF CONTRACT
(Against Defendant, TONY HOANG)
59. Plaintiff repeats and re-alleges the allegations contained in all thepreceding paragraphs, as if fully set forth herein.
60. The Partnership Interest Purchase Agreement ( the Agreement)executed on or about April 4, 2011, between Plaintiff and Defendant TONY
HOANG is a valid and enforceable contract.
61. Plaintiff, SALON SPA SUPPLY LLC, has fully performed all of itsobligations under the Agreement.
A. Breach of the Non-Competition Agreement
62. The Agreement includes specific limitations on Defendant TONYHOANGs ability to engage in a business that is similar to Plaintiffs business.
Specifically, paragraph 4 of the Agreement recites:
4. NON-COMPETITION. No Competition. For a period of one(1) year following the date [of] signing this agreement Seller[TONY HOANG] shall not directly or indirectly, either individually
or with others, engage or have any interest, as an owner, employee,representative, agent, consultant or otherwise, in any business, whichis own or have interest [sic] by family or immediately familymembers or relatives, that is similar to the business conducted by SSS,LLC [SALON SPA SUPPLY, LLC] within the twelve and 7/10th(12.7) miles radius from SSS, LLCs Norcross office. .Exhibit A, The Agreement, at 4, pages 2-3.
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63. Defendant TONY HOANG was contractually prohibited for one year(between April 4, 2011, and April 4, 2012) from competing with Plaintiff by
engaging in any business that is owned by family member or relative, or in which
any family member of relative has an interest, that is similar to the business
conducted by Plaintiff within a 12.7-mile radius of Plaintiffs Norcross office.
64. Defendant TONY HOANG breached his contractual duties to Plaintiffby, during the one-year non-compete period, either directly or indirectly, engaging
in a business (including TOUSPA, LLC) that was owned by a family member
(including his spouse, TRAN PHAM) and that is similar to the business conducted
by Plaintiff, within a 12.7-mile radius of Plaintiffs Norcross office.
65. On or about May 16, 2011 just 42 days after the Agreement, andduring the one-year non-competition period Defendant TONY HOANGs spouse
(Defendant TRAN PHAM) submitted the papers necessary to organize TOUSPA,
LLC, in Georgia. Defendant TRAN PHAM listed herself as the sole officer and
registered agent, and using an address in Loganville, Georgia, as the business
address.
66. Defendant TONY HOANG, either alone or together with his spouse,Defendant TRAN PHAM, used the Loganville address (394 Hope Hollow Road,
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Loganville, Georgia 30052) for TOUSPA, LLC, in a deliberate but failed attempt
to circumvent the geographical limitation set forth in the Agreement.
67. The business of TOUSPA, LLC is similar to the business conductedby Plaintiff, SALON SPA SUPPLY, LLC.
68. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG participated in the
planning, organization, formation, and/or operation of the business conducted by
TOUSPA, LLC.
69. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG engaged in or had
an interest in the business of TOUSPA, LLC, in which a family member (his
spouse TRAN PHAM) has an ownership or other interest.
70. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG engaged in the
business of TOUSPA, LLC at a location within 12.7 miles of Plaintiffs Norcross
office; including, specifically, at his personal residence. Defendant TONY
HOANGs residence address is approximately 10.8 miles (driving distance) from
Plaintiffs Norcross office. Plaintiffs Norcross office is located at 1855 Beaver
Ridge Circle, Suite A in Norcross, Georgia 30071-3800. Defendant TONY
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HOANGs Tucker residence is located at 3714 Marlborough Drive in Tucker,
Georgia 30084-8330. A true and correct copy of a map between Plaintiffs
Norcross office and Hoangs Tucker residence is attached hereto as Exhibit G.
71. On or before May 16, 2011, and continuing thereafter during theone-year non-competition period Defendant TONY HOANG engaged in the
business of TOUSPA, LLC at a location within 12.7 miles of Plaintiffs Norcross
office; including, specifically, at a facility leased or rented by TOUSPA, LLC. The
TOUSPA facility is approximately 5.3 miles (driving distance) form Plaintiffs
Norcross office. Plaintiffs Norcross office is located at 1855 Beaver Ridge Circle,
Suite A in Norcross, Georgia 30071-3800. The TOUSPA facility is located at
2245 Button Gwinnet Drive in Atlanta, Georgia 30340-1516. A true and correct
copy of a map between Plaintiffs Norcross office and the TOUSPA facility is
attached hereto as Exhibit H.
72. During the one-year non-competition period, Defendant TONYHOANG engaged in the business of TOUSPA, LLC by leasing, renting, or
otherwise procuring space for TOUSPA at 2245 Button Gwinnet Drive in Atlanta,
Georgia 30340-1516.
73. Within days of the expiration of the one-year non-competition period,on or about Sunday, April 22, 2012, Defendant TOUSPA, LLC held a Grand
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Opening Event at 2245 Button Gwinnet Drive in Atlanta, Georgia 30340-1516.
A true and correct copy of an Event posted on TOUSPAs Facebook page is
attached hereto as Exhibit I.
74. Also during the one-year non-competition period, upon informationand belief, Defendant TONY HOANG, either alone or together with Defendants
TRAN PHAM and/or TOUSPA LLC, has been and is now currently directly
infringing the 858 Patent and/or indirectly infringing the 858 Patent (by way of
inducing infringement and/or contributing to the infringement) in the State of
Georgia, in this judicial district, and elsewhere in the United States, by conduct
that includes importing, making, using, offering to sell, and/or selling one or more
products that infringe the 858 Patent, including but not limited to the TOUSPA
M2 or Sage base and foot bath for pedicure chairs (hereinafter collectively
referred to as the accused TOUSPA products). The accused TOUSPA products
are depicted in photographs and advertisements attached hereto as Exhibits M-1
(center), M-2, and M-3.
B. Breach of the Non-Disclosure Agreement
75. The Agreement includes specific limitations on the disclosure ofConfidential Information to any person not employed by SALON SPA SUPPLY,
LLC. Specifically, paragraph 5 of the Agreement recites:
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5. NON-DISCLOSURE [OF] CONFIDENTIALINFORMATION. No Disclosure. Seller [TONY HOANG] shall
not, at any time, use or disclose any Confidential Information to anyperson not employed by SSS, LLC [SALON SPA SUPPLY, LLC]without the prior written authorization of SSS, LLC . The partieshereto stipulate that all Confidential Information is and will beimportant and material and does and will contribute significantly tothe successful conduct of SSS, LLCs business and to its goodwill..
Confidential Information Definition. For purposes of thisagreement, the term Confidential Information means information
which not generally known in SSS, LLCs industry, which has beenproprietary to SSS, LLC, and which been subject to efforts by SSS,LLC to maintain its confidentiality, . Exhibit A, The Agreement,at 5, page 3.
76. Defendant TONY HOANG was contractually prohibited from usingor disclosing Plaintiffs Confidential Information, at any time, to any person not
employed by Plaintiff, without the prior written authorization of Plaintiff.
77. Defendant TONY HOANG never requested Plaintiffs writtenauthorization to use or disclose Plaintiffs Confidential Information.
78. Defendant TONY HOANG never received any written authorizationby Plaintiff to use or disclose Plaintiffs Confidential Information.
79.
Defendant TONY HOANG breached his contractual duties to Plaintiff
by using or disclosing Plaintiffs Confidential Information, at any time, to any
person not employed by Plaintiff, without the prior written authorization of
Plaintiff.
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80. Plaintiffs Confidential Information includes information aboutPlaintiffs patented base and foot bath design for pedicure chairs, including but not
limited to the manufacturing process, mold specifications, materials, and
dimensions. This Confidential Information is not generally known in the industry,
is proprietary to Plaintiff, and has been subject to reasonable efforts by Plaintiff to
maintain its confidentiality.
81. Defendant TONY HOANG stipulated in the Agreement thatPlaintiffs Confidential Information is important and material, and that it
contributes significantly to Plaintiffs business and its good will. Specifically,
paragraph 5 of the Agreement recites:
The parties hereto stipulate that all Confidential Information has
been acquired by SSS, LLC at great expense and substantial effort andis and will be important and material and does and will contributesignificantly to the successful conduct of SSS, LLCs business and toits goodwill. . Exhibit A, The Agreement, at 5, page 3.
82. Defendant TONY HOANG has been and is currently using PlaintiffsConfidential Information, without prior written authorization by Plaintiff, in order
to unlawfully copy Plaintiffs products and to unlawfully and willfully infringe on
Plaintiffs patented base and foot bath design.
83. For example, Defendant TONY HOANG, on or about September 3,2010, shipped one of Plaintiffs ZETA pedicure spa sets to his father-in-law, Mr.
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Pham Thanh in Vietnam, for the purpose of copying it and deliberately infringing
the 858 Patent. This conduct is part of an insidious and continuing pattern of
conduct by Defendant TONY HOANG that includes both using and disclosing
Plaintiffs Confidential Information unlawfully and for his own gain.
84. Defendant TONY HOANG has been and is currently disclosing toothers Plaintiffs Confidential Information, without prior written authorization by
Plaintiff, in order to unlawfully copy Plaintiffs products and to unlawfully and
willfully infringe on Plaintiffs patented base and foot bath design. For example,
Defendant TONY HOANG, either alone or together with Defendants TRAN
PHAM and/or TOUSPA LLC, has been and is now currently disclosing Plaintiffs
Confidential Information to others, including one of TOUSPAs manufacturers:
Nautran LLC located in Ho Chi Minh City, Vietnam. A true and correct copy of a
Bill of Lading is attached hereto as Exhibit J.
C. Breach of the Duty to Return Company Assets and Data
85. The Agreement requires Defendant TONY HOANG to return allcompany assets and data. Paragraph 6 of the Agreement recites:
6. Company Assets and Company Information. Seller [TONYHOANG] have to return [sic] all company assets and data related [to]or under Salon Spa Supply, LLC name. Data includes any customers,vendors, designings, drawings, company domains, hosting websites,all company access, and financial informations [sic]. Exhibit A, TheAgreement, at 6, page 3.
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86. Defendant TONY HOANG was contractually obligated to return toPlaintiff any and all company assets and data in his possession, custody, or control.
87. Defendant TONY HOANG admitted to making a copy of all or mostof the company information stored on his company computer.
88. Defendant TONY HOANG breached his contractual duties to Plaintiffby refusing or failing to return to Plaintiff any and all company assets and data in
his possession, custody, or control.
89. Plaintiffs company assets and data includes the computer files thatwere copied and retained for later use by Defendant TONY HOANG shortly
before the Agreement was signed.
90. Plaintiffs company assets and data includes an example layout designand floor plan for a spa. A true and correct copy of Plaintiffs Deluxe Nails &
Spa floor plan is attached hereto as Exhibit K-1. Also, a true and correct copy of
an advertisement by Plaintiff which includes the Deluxe Nails & Spa floor plan
is attached hereto as Exhibit K-2.
91. Defendant TONY HOANG, either alone or together with DefendantsTRAN PHAM and/or TOUSPA LLC, published a copy of Plaintiffs Deluxe
Nails & Spa floor plan in an advertisement. A true and correct copy of one of
TOUSPAs advertisements featuring the floor plan is attached hereto as Exhibit L.
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As shown in the advertisement, the title Deluxe Nails & Spa has been replaced
with the text TOUSPA, LLC Conceptual Design. Otherwise, no changes were
made to Plaintiffs original floor plan.
92. Plaintiff SALON SPA SUPPLY LLC is the owner of all right, title,and interest in the original work of authorship that is known as the Deluxe Nails
& Spa floor plan and shown in Exhibit K-1 and Exhibit K-2.
93. Defendants drawing entitled TOUSPA, LLC Conceptual Design asshown in Exhibit L is an unauthorized copy of Plaintiffs Deluxe Nails & Spa
floor plan.
94. None of the Defendants has any right, title, or interest in anunauthorized copy of Plaintiffs Deluxe Nails & Spa floor plan.
95. Defendants publication of the TOUSPA, LLC Conceptual Design inan advertisement proves conclusively that Defendant TONY HOANG, either alone
or together with Defendants TRAN PHAM and/or TOUSPA LLC, has breached
the Agreement by continuing to possess a copy of Plaintiffs Deluxe Nails & Spa
floor plan, in violation of HOANGs obligation to return all company assets and
data related [to] or under Salon Spa Supply, LLC name.
96. As a direct and proximate result of Defendant TONY HOANGsbreach of at least three provisions of the Agreement (a) the non-competition
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provision, (b) the non-disclosure provision, and (c) the duty to return company
assets and data the Plaintiff SALON SPA SUPPLY LLC has been and is
continuing to be irreparably harmed, damaged, and injured, and will continue to
sustain harm, damage, and injury unless Defendants conduct is restrained by this
Court.
97. By accepting substantial payments of money in exchange for hispromise to honor the commitments he made in the Agreement with Plaintiff,
Defendant TONY HOANG is legally and equitably estopped from seeking to avoid
those very commitments.
98. Allowing Defendant TONY HOANG to keep the substantialpayments of money he received while avoiding the commitments, which formed
the basis of the Agreement and those payments, would cause substantial and
detrimental harm to Plaintiff.
99. Injustice and harm to Plaintiff can only be avoided by enforcing thepromise made by Defendant TONY HOANG to honor the commitments in the
Agreement and to continue to otherwise honor all his contractual obligations to
Plaintiff.
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100. Defendant TONY HOANG acknowledged in the Agreement that hehas had a reasonable and adequate opportunity from his receipt of this document to
review it. Exhibit A, The Agreement, page 4.
101. Defendant TONY HOANG was advised by his partners about hisopportunity to obtain independent counsel to advise him about the Agreement.
102. The injury caused by a breach of the Agreement would be difficult orimpossible to accurately estimate.
103. Tony Hoang Agreed the Damages Would Not Be ReadilyAscertainable: Defendant TONY HOANG acknowledged and agreed that, if he
breached any provision of the Agreement, Plaintiffs damages would not be readily
ascertainable.
By signing this Agreement, Seller [TONY HOANG] agrees that ifSeller were to breach any provisions of this Agreement, SSS, LLC[SALON SPA SUPPLY, LLC] would suffer damages that are notreadily ascertainable. . Exhibit A, The Agreement, page 4.
104. Tony Hoang Agreed to Pay Liquidated Damages: Because theparties agreed that Plaintiffs damages from a potential breach by Defendant would
not be readily ascertainable, Defendant TONY HOANG and Plaintiff agreed upon
and included a liquidated damages provision in the Agreement. Specifically,
Defendant TONY HOANG acknowledged and agreed to pay liquidated damages
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in the amount of One Hundred Forty-four Thousand Dollars ($ 144,000.00) in the
event of his breach of any provision of the Agreement.
Accordingly, in addition to [other remedies] for breach of thisAgreement, Seller [TONY HOANG] agrees that in the event of abreach of this Agreement by the Seller, Seller shall pay back to SSS,LLC [SALON SPA SUPPLY, LLC] One Hundred Forty-Fourthousands [sic] dollars in this agreement. . Exhibit A, TheAgreement, page 4.
105. The parties intended to provide for liquidated damages as an estimateof the probable losses resulting from a potential breach, rather than as a penalty (to
either party).
106. The sum agreed upon by the parties represents a reasonable estimateof the probable losses resulting from a potential breach.
107. Tony Hoang Agreed to Submit to Immediate Injunctive ReliefWithout Proof of Harm: Defendant TONY HOANG acknowledged and agreed
that (a) the remedy at law for breach of any provision of the Agreement would be
inadequate, and (b) Plaintiff SALON SPA SUPPLY, LLC, shall be entitled to
injunctive relief for any breach or threatened breach of the Agreement without
proof of any actual damages.
The Seller [TONY HOANG] further agrees that the remedy atlaw for breach of any of the above agreements is inadequate and thatSSS, LLC [SALON SPA SUPPLY, LLC] shall be entitled, in additionto other such remedies as it may have, to injunctive relief for anybreach or threatened breach of this agreement without proof of any
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actual damages that may have been or may be caused to the Company[SALON SPA SUPPLY, LLC] by such breach or threatened breach.
Exhibit A, The Agreement, page 4.
108. Accordingly, because Defendant TONY HOANG has breached atleast three provisions of the Agreement (a) the non-competition provision, (b) the
non-disclosure provision, and (c) the duty to return company assets and data the
Plaintiff SALON SPA SUPPLY LLC is lawfully and contractually entitled to
immediate injunctive relief and to immediate recovery of the liquidated damages in
the amount of One Hundred Forty-four Thousand Dollars ($ 144,000.00).
WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendant TONY HOANGon the Complaint and enter an order as follows:
A. Finding that Defendant TONY HOANG breached his Agreement with
Plaintiff, including at least (a) the non-competition provision, (b) the non-disclosure provision, and/or (c) the duty to return company assets and data.
B. Awarding to Plaintiff the liquidated damages in the amount of OneHundred Forty-four Thousand Dollars ($ 144,000.00).
C. Enjoining Defendants from using or disclosing Plaintiffs ConfidentialInformation.
D. Ordering Defendants return all company assets and data, including
any and all copies of such information.
E. Ordering Defendants to pay Plaintiffs reasonable attorneys fees andcosts incurred in enforcing the terms and provisions of the Agreement.
F. Granting such other and further relief as this Court deems just andproper.
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COUNT 2
BREACH OF FIDUCIARY DUTY AND DUTY OF LOYALTYTO HIS PARTNERS AND TO SALON SPA SUPPLY LLC
(Against Defendant, TONY HOANG)
109. Plaintiff repeats and re-alleges the allegations contained in all thepreceding paragraphs, as if fully set forth herein.
110. On or about May 2, 2008, Defendant, TONY HOANG, became theowner of a one-fifth (twenty percent) interest in SALON SPA SUPPLY LLC. A
true and correct copy of the Partnership Agreement is attached hereto as Exhibit C.
111. Defendant TONY HOANG had a confidential relationship withPlaintiff, SALON SPA SUPPLY LLC, in which he was privy to proprietary,
confidential, and trade secret information, including but not limited to Plaintiffs
original and unique tub designs, Plaintiffs manufacturers, importers, and suppliers,
Plaintiffs costs, pricing, profit, and financial information, Plaintiffs business and
marketing strategies, and Plaintiffs lists of current and prospective customers.
112. Defendant TONY HOANG owed to Plaintiff a variety of fiduciaryduties, including a duty of loyalty, a duty of good faith, and a duty of fair dealing.
113. While a trusted partner with Plaintiff, Defendant TONY HOANGknowingly, willfully, maliciously, and without justification breached his fiduciary
duties to Plaintiff when, on or about September 3, 2010, he shipped one of
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Plaintiffs ZETA pedicure spa sets to his father-in-law, Mr. Pham Thanh in
Vietnam, for the purpose of copying Plaintiffs patented design, and for the
purpose of competing unfairly with Plaintiff, for his own financial gain.
114. While a trusted partner with Plaintiff, Defendant TONY HOANGknowingly, willfully, maliciously, and without justification breached his fiduciary
duties to Plaintiff when, on or about February 2, 2011, he registered the domain
name, www.TOUSPA.com, as part of his plan and for the purpose of competing
unfairly with Plaintiff for his own financial gain. A true and correct copy of the
WHO-IS report for this domain name is attached hereto as Exhibit E.
115. While a trusted partner with Plaintiff, Defendant TONY HOANGknowingly, willfully, maliciously, and without justification breached his fiduciary
duties to Plaintiff when, near the end of the time period when he still held an
ownership interest in Plaintiff a few days before April 4, 2011 he accessed his
company computer, made a copy of all or most of the company information stored
on his company computer, and then destroyed the company information and data
that had been stored on his company computer.
116. Since Defendant TONY HOANG executed the Agreement withPlaintiff, Defendant TONY HOANG has knowingly, willfully, maliciously, and
without justification breached his fiduciary duties to Plaintiff by, among other
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conduct: (a) intentionally and unlawfully breaching the non-competition provision
of the Agreement; (b) using and disclosing to others Plaintiffs Confidential
Information without permission, in violation of the Agreement; (c) refusing and
failing to return company assets and data, in violation of the Agreement;
(d) intentionally and willfully infringing Plaintiffs exclusive patent rights by
intentionally copying Plaintiffs patented base and foot bath design for pedicure
chairs; and (e) unfairly competing with Plaintiff, all for his own financial gain.
117. As a direct and proximate result of Defendant TONY HOANGsbreach of his fiduciary duties, Plaintiff has suffered and is continuing to be suffer
severe irreparable harm, financial and otherwise.
118. Defendant TONY HOANGs breach of his fiduciary duties makeshim liable to Plaintiff for compensatory and punitive damages.
119. Defendant TONY HOANGs conduct has caused harm to Plaintiffsgood will and to Plaintiffs business and commercial relations.
120. Defendant TONY HOANG has acted with malice and recklessdisregard for Plaintiffs rights.
121. Defendant TONY HOANGs conduct shows a willful and maliciousindifference to Plaintiffs rights and an entire want of care for Plaintiff and for the
public.
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WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendant TONY HOANG
on the Complaint and enter an order as follows:
A. Awarding to Plaintiff compensatory damages caused by DefendantTONY HOANGs unlawful conduct, in an amount to be proven at trial.
B. Awarding to Plaintiff punitive and exemplary damages, as permittedby statute, arising from Defendant TONY HOANGs intentional and maliciousconduct.
C. Ordering Defendant TONY HOANG to pay Plaintiffs reasonable
attorneys fees and costs incurred in enforcing the terms and provisions of theAgreement.
D. Granting such other and further relief as this Court deems just andproper.
COUNT 3
AIDING AND ABETTING HOANGS BREACH OF
FIDUCIARY DUTY AND DUTY OF LOYALTY
(Against Defendants, TOUSPA, LLC and TRAN PHAM)
122. Plaintiff repeats and re-alleges the allegations contained in all thepreceding paragraphs, as if fully set forth herein.
123. Defendant TOUSPA, LLC has aided and abetted, and continues to aidand abet, Defendant TONY HOANGs breach of fiduciary duties to Plaintiff, as set
forth herein.
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124. Defendant TRAN PHAM has aided and abetted, and continues to aidand abet, Defendant TONY HOANGs breach of fiduciary duties to Plaintiff, as set
forth herein.
125. Upon information and belief, on or about September 3, 2010,Defendant TRAN PHAM participated in the secret shipment to her father, Mr.
Pham Thanh in Vietnam, of one of Plaintiffs commercial pedicure spa sets known
as the ZETA model. A true and correct copy of the Commercial Invoice for this
shipment is attached hereto as Exhibit D.
126. Upon information and belief, Defendant TRAN PHAM participated inthe secret shipment to her father with actual knowledge that her spouse, Defendant
TONY HOANG, intended to and made the shipment without the knowledge of his
fellow partners at Salon Spa Supply LLC, and without authorization by Salon Spa
Supply LLC.
127. On or about May 16, 2011, Defendant TRAN PHAM submitted thepapers necessary to organize TOUSPA, LLC, in Georgia. Defendant TRAN
PHAM listed herself as the sole officer and registered agent. Defendant TRAN
PHAM, either alone or together with her spouse, Defendant TONY HOANG, used
the Loganville address (394 Hope Hollow Road, Loganville, Georgia 30052) for
TOUSPA, LLC, in a deliberate but failed attempt to circumvent the geographical
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limitation set forth in the Agreement. A true and correct copy of the Certificate of
Organization for this corporate entity is attached hereto as Exhibit F.
128. On or about May 16, 2011, and continuing thereafter, DefendantTRAN PHAM engaged in or had an interest in the business of TOUSPA, LLC, in
which a family member (her spouse, TONY HOANG) also had an ownership or
other interest, thereby aiding and abetting Defendant TONY HOANGs breach of
his non-competition obligation in the Agreement.
129. After the formation of TOUSPA, LLC, and continuing thereafter,Defendant TRAN PHAM, without authorization by Plaintiff, used and/or disclosed
to others confidential information about the Plaintiffs patent tub design and
manufacture, thereby aiding and abetting Defendant TONY HOANGs breach of
his non-disclosure obligation in the Agreement.
130. After the formation of TOUSPA, LLC, and continuing thereafter,Defendant TRAN PHAM, has kept and maintained at least one copy of Plaintiffs
company assets and data, thereby aiding and abetting Defendant TONY HOANGs
breach of his duty to return company assets and data to Plaintiff.
131. Defendant TOUSPA, LLC, without authorization by Plaintiff, usedand/or disclosed to others confidential information about the Plaintiffs patent tub
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design and manufacture, thereby aiding and abetting Defendant TONY HOANGs
breach of his non-disclosure obligation in the Agreement.
132. Defendant TOUSPA, LLC, has kept and maintained at least one copyof Plaintiffs company assets and data, thereby aiding and abetting Defendant
TONY HOANGs breach of his duty to return company assets and data to Plaintiff.
133. As a direct and proximate result of Defendants conduct andintentional aid provided in furtherance of TONY HOANGs breach of his fiduciary
duties, Plaintiff has suffered and is continuing to be suffer severe irreparable harm,
financial and otherwise.
134. Defendants conduct and intentional aid provided in furtherance ofTONY HOANGs breach of his fiduciary duties makes Defendants liable to
Plaintiff for compensatory and punitive damages.
135. Defendants conduct has caused harm to Plaintiffs good will and toPlaintiffs business and commercial relations.
136. Defendants has acted with malice and reckless disregard for Plaintiffsrights.
137. Defendants conduct shows a willful and malicious indifference toPlaintiffs rights and an entire want of care for Plaintiff and for the public.
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WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendants TOUSPA, LLC
and TRAN PHAM on the Complaint and enter an order as follows:
A. Awarding to Plaintiff compensatory damages caused by Defendantsunlawful conduct, in an amount to be proven at trial.
B. Awarding to Plaintiff punitive and exemplary damages, as permittedby statute, arising from Defendants intentional and malicious conduct.
C. Ordering Defendants to pay Plaintiffs reasonable attorneys fees andcosts incurred in enforcing the terms and provisions of the Agreement.
D. Granting such other and further relief as this Court deems just andproper.
COUNT 4
TORTIOUS INTEREFERENCE WITH CONTRACTUAL
RELATIONS
(Against Defendants, TOUSPA, LLC and TRAN PHAM)
138. Plaintiff repeats and re-alleges the allegations contained in all thepreceding paragraphs, as if fully set forth herein.
139. Defendant TOUSPA, LLC has intentionally and tortiously interferedwith Plaintiffs business relations, including its Agreement with Defendant TONY
HOANG.
140. Defendant TRAN PHAM has intentionally and tortiously interferedwith Plaintiffs business relations, including its Agreement with Defendant TONY
HOANG.
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141. On or about May 16, 2011, and continuing thereafter, DefendantTRAN PHAM engaged in or had an interest in the business of TOUSPA, LLC, in
which a family member (her spouse, TONY HOANG) also had an ownership or
other interest, thereby interfering with Plaintiffs contractual relations with
Defendant TONY HOANG.
142. After the formation of TOUSPA, LLC, and continuing thereafter,Defendant TRAN PHAM, without authorization by Plaintiff, used and/or disclosed
to others confidential information about the Plaintiffs patent tub design and
manufacture, thereby interfering with Plaintiffs contractual relations with
Defendant TONY HOANG.
143. After the formation of TOUSPA, LLC, and continuing thereafter,Defendant TRAN PHAM, has kept and maintained at least one copy of Plaintiffs
company assets and data, thereby interfering with Plaintiffs contractual relations
with Defendant TONY HOANG.
144. Defendant TOUSPA, LLC, without authorization by Plaintiff, usedand/or disclosed to others confidential information about the Plaintiffs patent tub
design and manufacture, thereby interfering with Plaintiffs contractual relations
with Defendant TONY HOANG.
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145. Defendant TOUSPA, LLC, has kept and maintained at least one copyof Plaintiffs company assets and data, thereby interfering with Plaintiffs
contractual relations with Defendant TONY HOANG.
146. As a direct and proximate result of Defendants conduct of interferingwith Plaintiffs business and contractual relations, Plaintiff has suffered and is
continuing to be suffer severe irreparable harm, financial and otherwise.
147. Defendants conduct has caused harm to Plaintiffs good will and toPlaintiffs business and commercial relations.
148. Defendants has acted with malice and reckless disregard for Plaintiffsrights.
149. Defendants conduct shows a willful and malicious indifference toPlaintiffs rights and an entire want of care for Plaintiff and for the public.
WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendants TOUSPA, LLCand TRAN PHAM on the Complaint and enter an order as follows:
A. Awarding to Plaintiff compensatory damages caused by Defendantsunlawful conduct, in an amount to be proven at trial.
B. Awarding to Plaintiff punitive and exemplary damages, as permittedby statute, arising from Defendants intentional and malicious conduct.
C. Ordering Defendants to pay Plaintiffs reasonable attorneys fees andcosts incurred in enforcing the terms and provisions of the Agreement.
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D. Granting such other and further relief as this Court deems just andproper.
COUNT 5
WILLFUL DESIGN PATENT INFRINGEMENT
(Against All Defendants)
150. Plaintiff repeats and re-alleges the allegations contained in all thepreceding paragraphs, as if fully set forth herein.
151. On or about August 31, 2010, U.S. Patent Number D622,858 S (the858 Patent), entitled FEET BATHTUB, was duly and lawfully issued to Mr.
Danny Jan, the named inventor of the subject matter claimed in the 858 Patent. A
true and correct copy of the 858 Patent is attached hereto as Exhibit B.
152. On or about May 12, 2012, Mr. Danny Jan assigned his interest in the858 Patent to Plaintiff, SALON SPA SUPPLY, LLC.
153. Plaintiff SALON SPA SUPPLY LLC is the owner of all right, title,and interest in and to the 858 Patent.
154. The 858 Patent is valid and enforceable.155. As shown in Figure 6 of the 858 Patent, the features on the floor of
the foot bath, including the location of the floor drain, are illustrated using dashed
lines, which indicates that those features are not part of the design being claimed.
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156. Plaintiffs commercial pedicure spa set known as the ZETA model isone of Plaintiffs products that includes features of Plaintiffs patented base and
foot bath.
157. Since as early as January of 2010, Plaintiff SALON SPA SUPPLYLLC has been selling its base and foot bath product, including the ZETA model.
Plaintiffs patented ZETA model is depicted in photographs attached hereto as
Exhibit B-1.
158. Each Defendant, at all times relevant hereto, has had actualknowledge of the 858 Patent and the subject matter claimed in the 858 Patent.
159. Since at least as early as April 2012, Defendants, TOUSPA LLC,TONY HOANG, and TRAN PHAM, have been and are now currently willfully
and directly infringing the 858 Patent and/or indirectly infringing the 858 Patent
(by way of inducing infringement and/or contributing to the infringement) in the
State of Georgia, in this judicial district, and elsewhere in the United States, by
conduct that includes importing, making, using, offering to sell, and/or selling one
or more products that infringe the 858 Patent, including but not limited to the
TOUSPA M2 or Sage base and foot bath for pedicure chairs (hereinafter
collectively referred to as the accused TOUSPA products). The accused
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TOUSPA products are depicted in photographs and advertisements attached hereto
as Exhibits M-1 (center), M-2, and M-3 (left side).
160. The accused TOUSPA products include the base and foot bath shownin the center of the photograph attached hereto as Exhibit M-1, which is a true and
correct copy of a photograph posted on TOUSPAs Facebook page.
161. The accused TOUSPA products include the base and foot bath shownin the photograph attached hereto as Exhibit M-2, which is a true and correct copy
of a photograph posted on TOUSPAs Facebook page.
162. The accused TOUSPA products include the base and foot bath modelsshown on the left side of the one-page advertisement attached hereto as Exhibit
M-3, which is a true and correct copy of a one-page advertisement posted on
TOUSPAs Facebook page.
163. The accused TOUSPA products, such as the base and foot bathmodels shown on the left side of Exhibit M-3, are being offered for sale and sold
by Defendant TOUSPA LLC at a price that is approximately twenty percent (20%)
less than Plaintiffs price.
164. On or about April 26, 2012, Defendants, TOUSPA LLC, TONYHOANG, and TRAN PHAM, willfully and directly infringed the 858 Patent
and/or indirectly infringed the 858 Patent (by way of inducing infringement and/or
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contributing to the infringement) in the State of Georgia, in this judicial district, by
selling two (2) model M2 Pedicure Spa Tub products to Mr. Tuan Doan in
Lawrenceville, Georgia. A true and correct copy of an Invoice is attached hereto
as Exhibit N.
165. The single claim of the 858 Patent recites, The ornamental designfor a feet bathtub, as shown and described.
166. The accused TOUSPA products infringe the single claim of the 858Patent, and defendants are liable for infringement, in violation of 35 U.S.C. 271,
because, in the eye of an ordinary observer, giving such attention as a purchaser
usually gives, the accused TOUSPA products and Plaintiffs patented design are
substantially the same. For example,
Plaintiffs Patented Base and Foot Bath.See also, Exhibit B, The 858 Patent,
Figure 1.
The Accused TOUSPA Product:Defendants M2 Base and Foot Bath.See also, Exhibits M-1, M-2, and M-3.
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167. Because each Defendant, at all times relevant hereto, has had actualknowledge of the 858 Patent and the subject matter claimed in the 858 Patent,
each Defendants conduct constitutes a knowing and willful infringement of the
858 Patent. Accordingly, this is an exceptional case under 35 U.S.C. 285.
168. Because Defendant TONY HOANG, on or about September 3, 2010,shipped one of Plaintiffs ZETA pedicure spa sets to his father-in-law, Mr. Pham
Thanh in Vietnam, for the purpose of copying it and deliberately infringing the
858 Patent, Defendant TONY HOANGs conduct constitutes a knowing and
willful infringement of the 858 Patent. Accordingly, this is an exceptional case
under 35 U.S.C. 285.
169. At the direction of and with instructions from Defendant TONYHOANG, Mr. Pham Thanh in Vietnam used Plaintiffs patented ZETA product to
make one or more molds, for the specific purpose of manufacturing pedicure bases
and foot baths that are deliberate copies of Plaintiffs patented ZETA product.
170. The accused TOUSPA products, including the M2 or Sage baseand foot bath, are deliberate copies of Plaintiffs patented ZETA base and foot
bath.
171. The overall length of the base of Plaintiffs patented ZETA product isapproximately 120 cm.
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172. The overall length of the base of the accused TOUSPA M2 productis also approximately 120 cm.
173. The overall height of the base of Plaintiffs patented ZETA product isapproximately 39 cm.
174. The overall height of the base of the accused TOUSPA M2 productis also approximately 39 cm.
175. The overall width of the base of Plaintiffs patented ZETA product,near the foot bath, is approximately 60 cm.
176. The overall width of the base of the accused TOUSPA M2 product,near the foot bath, is also approximately 60 cm.
177. The height of the foot bath bottom, above the floor, of Plaintiffspatented ZETA product is approximately 36 cm.
178. The height of the foot bath bottom, above the floor, of the accusedTOUSPA M2 product is also approximately 36 cm.
179. The inside width of the foot bath, at the front, of Plaintiffs patentedZETA product is approximately 36 cm.
180. The inside width of the foot bath, at the front, of the accusedTOUSPA M2 product is also approximately 36 cm.
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181. The inside width of the foot bath, at the rear, of Plaintiffs patentedZETA product is approximately 38 cm.
182. The inside width of the foot bath, at the rear, of the accused TOUSPAM2 product is also approximately 38 cm.
183. The diagonal distance across the foot bath, to the outer edges, ofPlaintiffs patented ZETA product is approximately 67.5 cm.
184. The diagonal distance across the foot bath, to the outer edges, of theaccused TOUSPA M2 product is also approximately 67.5 cm.
185. The diagonal distance across the foot bath, to the inside edges, ofPlaintiffs patented ZETA product is approximately 48.5 cm.
186. The diagonal distance across the foot bath, to the inside edges, of theaccused TOUSPA M2 product is also approximately 48.5 cm.
187. The inside length of the foot bath, near the center, of Plaintiffspatented ZETA product is approximately 41 cm.
188. The inside length of the foot bath, near the center, of the accusedTOUSPA M2 product is also approximately 41 cm.
189. The depth of the foot bath of Plaintiffs patented ZETA product isapproximately 27 cm at the drain end, and approximately 24 cm at the opposite
end.
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190. The depth of the foot bath of the accused TOUSPA M2 product isalso approximately 27 cm at the drain end, and approximately 24 cm at the
opposite end.
191. The distance from the inner side of the foot bath to the first curvilinearchange in thickness of Plaintiffs patented ZETA product is approximately 4 cm.
192. The distance from the inner side of the foot bath to the first curvilinearchange in thickness of the accused TOUSPA M2 product is also approximately 4
cm.
193. The width of the indentation for the spray nozzle on the rim of thefoot bath of Plaintiffs patented ZETA product is approximately 6 cm.
194. The width of the indentation for the spray nozzle on the rim of thefoot bath of the accused TOUSPA M2 product is also approximately 6 cm.
195. The distance from the bottom edge of the base to the first curvilinearchange in thickness, near the front, of Plaintiffs patented ZETA product is
approximately 13 cm.
196. The distance from the bottom edge of the base to the first curvilinearchange in thickness, near the front, of the accused TOUSPA M2 product is also
approximately 13 cm.
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197. The width of the foot rest of Plaintiffs patented ZETA product isapproximately 14.5 cm.
198. The width of the foot rest of the accused TOUSPA M2 product isalso approximately 14.5 cm.
199. The overall height, length, and curved shape of the foot rest of theaccused TOUSPA M2 product is identical to the overall height, length, and
curved shape of the foot rest of Plaintiffs patented ZETA product.
200. As a direct and proximate result of the Defendants infringement,Plaintiff SALON SPA SUPPLY LLC has been and is continuing to be irreparably
harmed, damaged, and injured, and will continue to sustain harm, damage, and
injury unless Defendants conduct is restrained by this Court.
WHEREFORE, Plaintiff respectfully requests that this Court enter judgmentin its favor and against Defendants on the Complaint and enter an order as follows:
A. Finding that Defendants have infringed the 858 Patent; andB. Ordering Defendants to pay compensatory damages to Plaintiff in an
amount at least equal to, at Plaintiffs option, either: (i) Plaintiffs lost profits, butin no event less than a reasonable royalty, plus costs and expenses, together withpre-judgment and post-judgment interest at the maximum rate allowable by law,
according to proof at trial, as provided under 35 U.S.C. 284, or (ii) Defendantstotal profits, plus costs and expenses, together with pre-judgment andpost-judgment interest at the maximum rate allowable by law, according to proof attrial, as provided under 35 U.S.C. 289; and
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C. Awarding to Plaintiff enhanced damages resulting from the knowing,deliberate, and willful nature of Defendants prohibited conduct, undertaken with
actual knowledge by each Defendant, as provided under 35 U.S.C. 284; and
D. Finding that this is an exceptional case within the meaning of 35U.S.C. 285 and awarding to Plaintiff its reasonable attorneys fees; and
E. Entering a permanent injunction enjoining and restraining Defendants,and all those acting in concert with them, from engaging in conduct that infringes,induces infringement, or contributes to the infringement of Plaintiffs exclusiverights in the 858 Patent; and
F. Directing each Defendant to file with the Court and serve on Plaintiff,within thirty (30) days after entry of any injunction (preliminary, interlocutory,and/or final) a report in writing under oath setting forth in detail the manner andform in which each Defendant has complied with the injunction; and
G. Granting such other and further relief as this Court deems just andproper.
COUNT 6
UNFAIR COMPETITION AND FALSE DESIGNATION OFORIGIN, IN VIOLATION OF THE LANHAM ACT
(Against All Defendants)
201. Plaintiff repeats and re-alleges the allegations contained in all thepreceding paragraphs, as if fully set forth herein.
202. By selling products that copy Plaintiffs products and Plaintiffsunique patented design, Defendants have misappropriated Plaintiffs trade dress
and falsely represented the origin of the accused TOUSPA Products. Thus,
Defendants conduct of importing, making, using, offering to sell, and/or selling
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the accused TOUSPA Products is causing and is likely to continue to cause
confusion, deception, and mistake by creating the false and misleading impression
that Defendants products are affiliated, connected, or associated with Plaintiff or
have the sponsorship, endorsement, or approval of Plaintiff, all in violation of 15
U.S.C. 1125(a).
203. From at least as early as January of 2010 and continuing to thepresent, Plaintiff SALON SPA SUPPLY LLC has been selling its patented base
and foot bath product, including the ZETA model, as well as its ZETA foot bath
product by itself and with other bases.
204. From at least as early as January of 2010 and continuing to thepresent, Plaintiff SALON SPA SUPPLY LLC has devoted substantial time,
money, and effort promoting and marketing its patented base and foot bath
product, as well as its ZETA foot bath product by itself and with other bases.
205. Because of Plaintiffs substantial, continuous, and exclusive effortspromoting, advertising, marketing, and selling its patented base and foot bath
product, including the ZETA model, as well as its foot bath product alone and with
other bases, Plaintiff SALON SPA SUPPLY LLC has acquired exclusive and
enforceable trade dress rights in (1) Plaintiffs patented base and foot bath product,
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including the ZETA model, and (2) Plaintiffs ZETA foot bath product, by itself
and with any base.
206. Plaintiffs trade dress is strong and well known to the public as anexclusive source identifier of Plaintiffs unique and attractive designs, as well as
Plaintiffs high-quality and reliable products incorporating those designs, including
the ZETA model. Accordingly, Plaintiff has developed valuable good will as well
as strong common law trade dress rights through the United States, including
Georgia, in its well-known and distinctive trade dress.
207. Defendants conduct, performed with actual knowledge of Plaintiffsexclusive rights, demonstrates an intentional, willful, and bad-faith intent to
(1) trade on the goodwill of Plaintiffs distinctive trade dress; and (2) cause
confusion, deception, and mistake in the minds of Plaintiffs customers and
potential customers by implying a non-existent affiliation or relationship between
Defendants and Plaintiff, to the great and irreparable injury of Plaintiff.
Defendants have acted knowingly and have been unjustly enriched by such
conduct.
208. Because Defendants unfair competition is causing and is likely tocontinue causing substantial injury to the public and to Plaintiff, Plaintiff is entitled
to injunctive relief and is entitled to recover Defendants trebled profits associated
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with the infringement, Plaintiffs damages, and Plaintiffs reasonable attorneys
fees in accordance with 15 U.S.C. 1116 and 1117.
WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendants on the Complaintand enter an order as follows:
A. Enjoining and restraining Defendants and all their subsidiaries,divisions, agents, officers, employees, representatives, successors, assigns,attorneys, and all other persons acting for, with, by, through, or under authorityfrom Defendants, from
(1) using any copy, reproduction, or colorable imitation orsimulation of (a) Plaintiffs patented base and foot bath products,including the ZETA model, or (b) Plaintiffs ZETA foot bath productby itself or in combination with any base, in connection with anygoods or services offered by Defendants; and
(2) using any trademark, service mark, trade dress, name,logo, or source designation of any kind that is a copy, reproduction, orcolorable imitation or simulation of, or confusingly similar to, or inany way similar to Plaintiffs trademarks, service marks, trade dresselements, names, or logos; and
(3) engaging in any other conduct that will cause, or is likelyto cause, confusion, mistake, deception, or public misunderstanding asto the affiliation, connection, association, origin, sponsorship orapproval of Defendants goods or services with or by Plaintiff; and
(4) otherwise infringing upon Plaintiffs distinctive trade
dress, or unfairly competing with Plaintiff in any manner whatsoever.
B. Compelling Defendants to account to Plaintiff for any and all profitsderived by Defendants through their infringement, and to pay Plaintiff for alldamage caused, including pre-judgment interest at the maximum rate allowable bylaw, under 15 U.S.C. 1117(a) and under the common law; and
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C. Awarding treble damages to Plaintiff in the amount of three times theprofits resulting from Defendants infringement, unfair competition, and false
designation of origin of services; and
D. Awarding statutory damages to Plaintiff, if it so elects; and
E. Awarding to Plaintiff punitive damages in an amount such as theCourt shall find to be just, according to the willful and deliberate infringement bythe Defendants; and
F. Awarding to Plaintiff all costs of this action and all its reasonableattorneys fees in accordance with 15 U.S.C. 1117(a); and
G. Ordering Defendants to deliver-up for safekeeping during thependency of this civil action, and for destruction upon entry of judgment:
(1) all products, including but not limited to the accusedTOUSPA products identified herein, that are confusingly similar to(a) Plaintiffs patented base and foot bath products, including theZETA model, or (b) Plaintiffs ZETA foot bath product by itself or incombination with any base; and
(2) all tooling, plates, molds, and other materials that arespecifically designed to manufacture products that are confusinglysimilar to (a) Plaintiffs patented base and foot bath products,including the ZETA model, or (b) Plaintiffs ZETA foot bath productby itself or in combination with any base; and
(3) any and all other materials that are causing or are likelyto continue to cause confusion, deception, and mistake by creating thefalse and misleading impression that Defendants products areaffiliated, connected, or associated with Plaintiff or have thesponsorship, endorsement, or approval of Plaintiff.
H. Directing each Defendant to file with the Court and serve on Plaintiff,within thirty (30) days after entry of any injunction (preliminary, interlocutory,and/or final) a report in writing under oath setting forth in detail the manner andform in which each Defendant has complied with the injunction; and
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I. Granting such other and further relief as this Court deems just andproper.
COUNT 7
UNFAIR COMPETITION AND DECEPTIVE TRADE
PRACTICES, IN VIOLATION OF THE GEORGIA UNIFORM
DECEPTIVE TRADE PRACTICES ACT
(Against All Defendants)
209. Plaintiff repeats and re-alleges the allegations contained in all thepreceding paragraphs, as if fully set forth herein.
210. The foregoing willful and deliberate acts of Defendants constituteunfair competition and deceptive trade practices in Georgia, because Defendants
have caused a likelihood of confusion or of misunderstanding as to the source,
sponsorship, approval, or certificate of goods, in violation of O.C.G.A. 10-1-
372(a)(2).
211. The foregoing willful and deliberate acts of Defendants constituteunfair competition and deceptive trade practices in Georgia, because Defendants
have caused a likelihood of confusion or of misunderstanding as to the affiliation,
connection, or association with or certification by another, in violation of O.C.G.A.
10-1-372(a)(3).
212. The foregoing willful and deliberate acts of Defendants constituteunfair competition and deceptive trade practices in Georgia, because Defendants
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have represented that goods have the sponsorship, approval, characteristics,
ingredients, uses, benefit, or qualities that they do not have, in violation of
O.C.G.A. 10-1-372(a)(5).
213. The foregoing willful and deliberate acts of Defendants constituteunfair competition and deceptive trade practices in Georgia, because Defendants
have engaged in other conduct that creates a likelihood of confusion or
misunderstanding, in violation of O.C.G.A. 10-1-372(a)(12).
214. As a direct and proximate result of the Defendants unlawful andunfairly competitive conduct, Plaintiff SALON SPA SUPPLY LLC has been and
is continuing to be irreparably harmed, damaged, and injured, and will continue to
sustain harm, damage, and injury unless Defendants conduct is restrained by this
Court.
215. Defendants have intentionally and willfully engaged in tradepractices, each of them knowing such trade practices to be deceptive.
WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court enter judgment in its favor and against Defendants on the Complaintand enter an order as follows:
A. Ordering Defendants to forever cease its unfair competition activityand to otherwise comply with all injunctive relief, temporary and permanent,granted by this Court.
B. Ordering Defendants to pay all costs of this action, pursuant toO.C.G.A. 10-1-373(b)(2).
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C. Ordering Defendants to pay all of Plaintiffs reasonable attorneysfees, pursuant to O.C.G.A. 10-1-373(b)(2).
D. Granting such other and further relief as this Court deems just andproper.
COUNT 8
PLAINTIFF IS ENTITLED TO INJUNCTIVE RELIEF
(Against All Defendants)
216.
Plaintiff repeats and re-alleges the allegations contained in all the
preceding paragraphs, as if fully set forth herein.
217. In accordance with the Courts authority to grant injunctive relief,Plaintiff SALON SPA SUPPLY LLC seeks the issuance of preliminary and
permanent injunctions upon hearing and trial, respectively.
218. Specifically, Plaintiff requests that the Court enter preliminary andpermanent injunctions against Defendants, TOUSPA, LLC, TONY HOANG, and
TRAN PHAM, and all those acting in concert with them, (1) enjoining them from
using or disclosing Plaintiffs Confidential Information, and (2) ordering them to
return all of Plaintiffs company assets and data.
219. Plaintiff is entitled to injunctive relief because Defendants arecurrently using anddisclosing Plaintiffs Confidential Information, Defendants
have refused to return Plaintiffs company assets and data, and Defendants are
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using Plaintiffs information, assets, and data to knowingly and willfully infringe
the 858 Patent. Plaintiff will be further and irreparably harmed if this conduct is
allowed to continue. Defendants bad faith conduct, as set forth herein,
demonstrates that Defendants will continue their unlawful and infringing conduct
unless enjoined by this Court.
220. Injunctive relief is an appropriate remedy under the circumstancesbecause money damages will be inadequate to compensate Plaintiff for the unfair
advantage gained by Defendants (and Plaintiffs competitors) as a result of
Defendants continuing use and disclosure to others of Plaintiffs Confidential
Information, Defendants continuing use of Plaintiffs company assets and data,
and Defendants continuing and willful infringement of Plaintiffs exclusive patent
rights.
221. Defendant TONY HOANG agreed that money damages would beinadequate. Specifically, on page 4 of the Agreement:
The Seller [TONY HOANG] further agrees that the remedy atlaw for breach of any of the above agreements is inadequate .Exhibit A, The Agreement, page 4.
222. Moreover, Injunctive relief is an appropriate remedy under thecircumstances because Defendant TONY HOANG agreed that, in the event of his
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breach or a threatened breach, Plaintiff would be entitled to immediate injunctive
relief without proof of harm. Specifically, on page 4 of the Agreement:
The Seller [TONY HOANG] further agrees that the remedy atlaw for breach of any of the above agreements is inadequate and thatSSS, LLC [SALON SPA SUPPLY, LLC] shall be entitled, in additionto other such remedies as it may have, to injunctive relief for anybreach or threatened breach of this agreement without proof of anyactual damages that may have been or may be caused to the Company[SALON SPA SUPPLY, LLC] by such breach or threatened breach.Exhibit A, The Agreement, page 4 (underlining added).
223. Plaintiff is entitled to injunctive relief because Plaintiff has noadequate remedy at law.
224. Plaintiff is entitled to injunctive relief because there is a substantiallikelihood of Plaintiffs success on the merits.
225. Defendant TONY HOANG already signed the Agreement withPlaintiff, promising that he would not use or disclose Plaintiffs Confidential
Information without prior written authorization, and that he would return Plaintiffs
company assets and data.
226. Defendant TONY HOANG also acknowledged his understanding thatany breach or threatened breach of any obligation in the Agreement would subject
him to an immediate injunction.
227. In direct violation of his Agreement, Defendant TONY HOANG,individually and in concert with others, has been and continues using and
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disclosing to others Plaintiffs Confidential Information, and has been and
continues keeping and using Plaintiffs company assets and data.
228. Defendants have used and are continuing to use Plaintiffsinformation, assets, and data to start and maintain their own business, TOUSPA,
LLC, for the purpose of competing unfairly with Plaintiff.
229. Moreover, Defendants have used and are continuing to use Plaintiffsinformation, assets, and data for the purpose of knowingly and willfully infringing
Plaintiffs patent rights.
230. Plaintiff is entitled to injunctive relief because the risk of continuingharm to Plaintiff outweighs any possible harm that injunctive relief might inflict on
Defendants. Plaintiff will be harmed because money damages will be inadequate
to compensate Plaintiff for the unfair advantage gained by Defendants (and other
competitors) because of Defendants unlawful conduct and willful patent
infringement. The issuance of an injunction poses no countervailing risk of harm
to Defendants.
231. Plaintiff is entitled to injunctive relief because the public interest willnot be disserved or adversely affected by granting the requested relief. To the
contrary, the public interest will be well served by an injunction at least because
Defendants infringing products are causing consumer confusion among the public,
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and are likely to continue causing confusion, deception and mistake among
members of the consuming public unless enjoined by this Court.
232. Plaintiff is willing in principle to post a bond, but requests that anybond imposed by the Court be nominal in light of the absence of a risk of harm to
Defendants from the issuance of a preliminary injunctions.
WHEREFORE, Plaintiff, SALON SPA SUPPLY LLC, respectfully requeststhat this Court issue a preliminary injunction as follows:
A. Enjoining Defendant from using or disclosing Plaintiffs ConfidentialInformation;
B. Ordering Defendants to return all of Plaintiffs company assets anddata, including any and all copies of such information;
C. Ordering Defendants to produce for immediate inspection allcomputers, electronic media, and other storage devices that are capable of storingall or part of the Plaintiffs company assets and data;
D. Ordering Defendants, after inspection and return to Plaintiff, to deleteall of Plaintiffs company assets and data from their computers, electronic media,