Case 8:17-cv-01205-JSM-TGW Document 1 Filed 05/22/17 Page 1 of 6 PageID 1
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`FOURSTAR GROUP USA, INC.
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`Plaintiff,
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`Case No.
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`v.
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`KIRKLAND’S, INC.,
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`
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`Defendant.
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`__________________________________/
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`COMPLAINT AND DEMAND FOR JURY TRIAL
`(Injunctive Relief Sought)
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`
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`Plaintiff, Fourstar Group USA, Inc. (“Fourstar”), sues Defendant, Kirkland’s, Inc.
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`(“Kirkland’s”), and alleges the following:
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`NATURE OF THE ACTION
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`1.
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`This is an action for Defendant’s infringement of Fourstar’s federally-
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`registered copyright.
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`THE PARTIES
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`2.
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`Plaintiff, Fourstar, is a Delaware corporation with a major office located in
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`Clearwater, Pinellas County, Florida.
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`3.
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`Defendant, Kirkland’s, is a Tennessee corporation with its principal place
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`of business in Brentwood, Tennessee. Kirkland’s operates stores nationwide, including
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`stores in Clearwater, Pinellas County, Florida, and in Tampa, Hillsborough County,
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`Tampa, Hillsborough County, Florida.
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`
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`
`FOURSTAR GROUP USA, INC.
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`Case No.
`
`
`
`
`v.
`
`KIRKLAND’S, INC.,
`
`
`
`Defendant.
`
`__________________________________/
`
`
`COMPLAINT AND DEMAND FOR JURY TRIAL
`(Injunctive Relief Sought)
`
`
`
`Plaintiff, Fourstar Group USA, Inc. (“Fourstar”), sues Defendant, Kirkland’s, Inc.
`
`(“Kirkland’s”), and alleges the following:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action for Defendant’s infringement of Fourstar’s federally-
`
`registered copyright.
`
`THE PARTIES
`
`2.
`
`Plaintiff, Fourstar, is a Delaware corporation with a major office located in
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`Clearwater, Pinellas County, Florida.
`
`3.
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`Defendant, Kirkland’s, is a Tennessee corporation with its principal place
`
`of business in Brentwood, Tennessee. Kirkland’s operates stores nationwide, including
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`stores in Clearwater, Pinellas County, Florida, and in Tampa, Hillsborough County,
`
`Tampa, Hillsborough County, Florida.
`
`
`
`
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`Case 8:17-cv-01205-JSM-TGW Document 1 Filed 05/22/17 Page 2 of 6 PageID 2
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`JURISDICTION AND VENUE
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`4.
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`This is an action, pursuant to 17 U.S.C. §501 et seq., seeking preliminary
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`and permanent injunctive relief, other equitable relief, recovery of Fourstar’s actual
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`damages and an award of Kirkland’s’ profits or, alternatively, statutory damages, and
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`recovery of the costs, expert fees, and attorneys’ fees Fourstar incurs resulting from
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`Kirkland’s’ infringement of Fourstar’s rights granted under the Copyright Laws of the
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`United States.
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`5.
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`This Court possesses subject matter jurisdiction over this case under 28
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`U.S.C. §§1331 and 1338 because this is an action by Fourstar under the Copyright Laws
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`for Defendant’s infringement of Fourstar’s copyright.
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`6.
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`This Court possesses personal jurisdiction over Kirkland’s under Florida’s
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`Long Arm Statute, § 48.193, Florida Statutes, and jurisdiction in this Court over
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`Kirkland’s comports with the requirements of due process. Kirkland’s has committed
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`intentionally tortious acts in Florida within the meaning of Florida’s Long Arm Statute
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`through the distribution of products in this judicial district that infringe Fourstar’s
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`federally protected copyright rights. This Court additionally has personal jurisdiction
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`over Kirkland’s because Kirkland’s operates retail stores within the State of Florida and
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`within the Middle District of Florida. Kirkland’s also advertises, markets, and offers for
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`sale products on its website, www.kirklands.com, which is accessible to residents of
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`Florida.
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`7.
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`Venue properly lies in this judicial district under 28 U.S.C. §1391(b)(2)
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`because a substantial part of the events or omissions giving rise to the claims asserted
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`2
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`Case 8:17-cv-01205-JSM-TGW Document 1 Filed 05/22/17 Page 3 of 6 PageID 3
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`herein occurred in this judicial district, and also properly lies under 28 U.S.C. §1400(a)
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`because this is a civil action arising under an act of Congress relating to copyrights and is
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`a district in which the Kirkland’s or its agents reside or may be found.
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`FACTS
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`8.
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`Fourstar specializes in the creation, development, and sourcing of
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`products, including decorations, food and candy, general merchandise, and household
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`goods, for sale in retail mass merchandisers.
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`9.
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`In connection with developing a new product line, Fourstar designed and
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`authored dancing flamingo artwork and sculptures titled “Solar Dancing Flamingo”
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`which artwork and sculptures were first published on April 27, 2012. (“Fourstar’s
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`Dancing Flamingo Artwork”).
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`10.
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`On March 15, 2016, Fourstar obtained a Federal copyright, registration
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`number VA 2-000-594, for Fourstar’s Dancing Flamingo Artwork (“Fourstar’s Solar
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`Dancing Flamingo Copyright”). A true and accurate copy of the Certificate of
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`Registration and the copyright deposit for Fourstar’s Solar Dancing Flamingo Copyright,
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`containing photographs of Fourstar’s product embodying Fourstar’s Solar Dancing
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`Flamingo Copyright, is attached hereto as Composite Exhibit “A”.
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`11.
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`Fourstar’s products bearing Fourstar’s Dancing Flamingo Artwork and
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`which are covered by the Fourstar Solar Dancing Flamingo Copyright are marked with a
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`copyright notice, “©2016 FSG” on the base of such products.
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`3
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`Case 8:17-cv-01205-JSM-TGW Document 1 Filed 05/22/17 Page 4 of 6 PageID 4
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`12.
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`Fourstar has retained the law firm of Fee & Jeffries, P.A. to vindicate its
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`rights against Kirkland’s and is obligated to pay its attorneys reasonable attorneys’ fees
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`for their services.
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`13.
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`All conditions precedent to the maintenance of this action have occurred,
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`been performed, or have been excused or waived.
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`COUNT I – FEDERAL COPYRIGHT INFRINGEMENT
`(Fourstar’s Solar Dancing Flamingo Copyright)
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`Fourstar realleges and incorporates by reference the allegations in
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`14.
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`paragraphs 1 through 13 above, as if set forth fully herein.
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`15.
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`In May of 2017, Fourstar discovered that Kirkland’s was selling solar-
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`powered flamingo products that infringe Fourstar’s Solar Dancing Flamingo Copyright.
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`16.
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`Kirkland’s marketed and sold products called “Rockin’ Solar Buddies”
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`which exactly copy Fourstar’s Dancing Flamingo Artwork (“Kirkland’s Infringing Solar
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`Flamingo Products”). Attached hereto as Composite Exhibit “B” are photographs of one
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`of Kirkland’s Infringing Solar Flamingo Products
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`17.
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`Kirkland’s is copying, distributing, selling, offering for sale, and using
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`Kirkland’s Infringing Solar Flamingo Products, which are substantially similar to the
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`Fourstar Dancing Flamingo Artwork, without Fourstar’s consent, license, or other
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`permission.
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`18.
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`Kirkland’s’ copying, distributing, selling, offering for sale, and use of
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`Kirkland’s Infringing Solar Flamingo Products constitutes infringement of the Fourstar
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`Solar Dancing Flamingo Copyright in violation of 17 U.S.C. §501.
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`4
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`Case 8:17-cv-01205-JSM-TGW Document 1 Filed 05/22/17 Page 5 of 6 PageID 5
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`19.
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`As a result of the infringement of the Fourstar Solar Dancing Flamingo
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`Copyright by Kirkland’s, Fourstar has suffered and continues to suffer damages, and is
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`entitled to all remedies provided by Chapter 5 of Title 17, United States Code.
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`20.
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`Upon information and belief, Kirkland’s infringement of Fourstar’s
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`copyright will continue unless enjoined by this Court.
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`21.
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`Fourstar has suffered irreparable injury and has been damaged by the
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`infringing activities of Kirkland’s and will continue to suffer damages and irreparable
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`injury unless such infringing actions are enjoined by this Court.
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`22.
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`Fourstar has no adequate remedy at law to prevent the injuries caused by
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`the continuing infringement by Kirkland’s.
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`23.
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`Given the clear infringement by Kirkland’s of Fourstar’s copyright,
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`Fourstar will likely prevail on the merits of this action.
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`24.
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`The balance of the hardships and public interest require that Kirkland’s
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`immediately and permanently cease its infringing activities.
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`WHEREFORE, Fourstar respectfully request this Court to:
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`A.
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`B.
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`Enter judgment in Fourstar’s favor and against Defendant, Kirkland’s;
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`Award to Fourstar and against Kirkland’s:
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`1)
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`2)
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`3)
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`Fourstar’s actual damages;
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`Kirkland’s’ profits from sales of Kirkland’s Infringing Products;
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`statutory damages, as an alternative to Fourstar’s actual damages
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`and Kirkland’s’ profits; and
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`5
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`Case 8:17-cv-01205-JSM-TGW Document 1 Filed 05/22/17 Page 6 of 6 PageID 6
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`4)
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`attorneys’ fees, expert fees, and costs incurred by Fourstar as a
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`result of Kirkland’s’ infringement of Fourstar’s Solar Dancing
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`Flamingo Copyright.
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`C.
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`Preliminarily and permanently enjoin Kirkland’s from further infringing,
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`or in any way benefiting from its past infringement of, Fourstar’s Solar Dancing
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`Flamingo Copyright, specifically including but not limited to, enjoining the advertising,
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`marketing, disseminating, selling, and offering for sale Kirkland’s Infringing Solar
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`Flamingo Products; and
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`D.
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`Grant Fourstar all additional relief that this Court deems appropriate.
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`DEMAND FOR JURY TRIAL
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`Fourstar hereby demands a trial by jury on all issues so triable.
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`Dated: May 22, 2017
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`Respectfully submitted,
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`s/ Richard E. Fee
`Richard E. Fee
`Florida Bar No. 813680
`Kathleen M. Wade
`Florida Bar No. 127965
`FEE & JEFFRIES, P.A.
`1227 N. Franklin Street
`Tampa, Florida 33602
`(813) 229-8008
`(813) 229-0046 (Facsimile)
`rfee@feejeffries.com
`kwade@feejeffries.com
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`Counsel for Plaintiff,
`Fourstar Group USA, Inc.
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`6
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