Valeri v. Mystic Industries

8/2/2019 Valeri v. Mystic Industries

1/34

m, i ' ~ i I?,.i," O O ' . ' ' ' i ~ ~ ~ ~ ' : ~ ~ ~ f i ~ ! ! ~ ' ' o f ~ ~ ' ~ 6 ~ ~ ~ : I,w. _,", p.'iby local rules of court. This form, a ~ ~ l i ~ I J U d i C i a l Conference of the United States inSeptember 1974, is required for the use of the Clerk of Court for the purpose of Initiathe civil docket sheet (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM)I. (a) PLAINTIFFSSUE WILLIAMSON VALERI

(b) County of Residence of First Listed Plainti(EXCEPT IN u.s. PLAINT

(C) AttQrneys (l-lrm Name, Address, and TeleellOne N.umber)Davrd L. Braverman, Esq. & Richard Julie Esq. Braverman Kaskey, PC., 1650 Market Street, 56th Floor, Philadelphia, PA 19103 215 575-380 o Io 2

DEFENDANTSMYSTIC INDUSTRIES CORPORATION

County of Residence ofFirst Listed DefendantNOTE:

(IN U.S. PLAINTIFF CASES ONLY)IN LAND CONDElvlNATlON CASES, USE THE LOCATION OTHE TRACT OF LAND INVOLVED.

Attorneys (I[Known)

II. BASIS OF JURISDI TI (placean "X" in One Box Only)u.s. GovernmentPlaintiffU.S. GovernmentDefendant

ederal Question(U.S. Government Not a Parly)

Diversity(Indicate Citizenship o[Parties in Item lII)

Citizen of This State

Citizen of Aoother Stat

DEFo I Incorporated or Principal Placeof Business In This StateIncorporated and Principal Place

of Business In Another StateForeign Nation

a 5 0 5a 6 0 6

IV NATURE OF SUIT (place an ''){'' in One Box Only)o 110 Insurance PERSONAL INJURY PERSONAL INJURY a 625 Drug Related Seizure 0 422 Appeal 28 USC 158 0 375 False Claims Acta 120 Marine 0310 Airplane a 365 Personal Injury ofProp etty 21 USC 881 0 423 Withdrawal 0 400 State Reapportionmento 130 Miller Act o 315 Airplane Product Product Liability o 6900tner 28 USC 157 o 410 Antitrusta 140 Negotiable Instrument Liability 0 367 Health Carel r " i i t m m i ~ i l I . ! I l ~ I l ! . 0 430 Banks and Bankingo 150 Recovery of Overpayment 0320 Assault. Libel & Pharmaceutical ~ P , D ~ , !fS- 0 450 Commerce& Enforcement of Judgment Slander Personal Injury f 1!;J 820 Copyrights 0 460 Deportationo 151 Medicare Act 0330 Federal Employers ' Product Liability , ~ 8 3 0 Patent 0 470 Racketeerlufluenced ano 152 Recovery ofDefilult ed Liability 0 368 Asbestos Personal OJ 840 Trademark Corrupt OrganizationsStudent Loans 0 340 Marine Injury Product ~ 1 i l i iiii!!&id!iii!iiDiliiiiiilW[lfii]1j1 0 480 Consumer Credit(Exc!. Veterans) 0 345 Marine Product Liability 12' ,1 I 0 490 Cable/Sat TVo 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards 0 861 HlA (l395ft) 0 850 Securities!Commoditiesof Veteran's Benefits a 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) Exchangeo 160 Stockholders' Suits a 355 Motor Vehicle 0 371 Truth in Lending 0 720 LaborlMgmt. Relations 0 863 DIWCiD lWW (405(g)) 0 890 Other Statutory Actionso 190 Otner Contract Product Liability a 380 Other Personal a 740 Railway Labor Act 0 864 SSID Title XVI 0 891 Agricultural Actso 195 Contract Product Liability 0 360 Other Personal Property Damage a 751 Family and Medical 0 865 RSI (405(g)) 0 893 Environmental Matterso 196 Franchise Injury 0 385 Property Damage Leave Act 0 895 Freedom oflnfo rmati ono 362 Personal Injury Product Liability 0 790 OdIeI' Labor Litigation Acto 896 ArbitrationI ~ . ~ i i l l a i i M ~ ; 791 ; : ~ ~ : ~ c ~ n c . . r . ~ l i l D i ! E i l U i ~ \ I 1 i 1 . l ! i i i . 0 &99 Administrative Procedu. ~ e d ~ . ~ M a 1 ~ d ~ p n a ~ , c ~ ~ c e i i i ~ " + I ~ I . I P " . I ! ' i i P i i i ! ' i I ' Ii.Oo 210 Land Condemnation a 440 Other Civil Rights a 510 Motions to Vacateo 220 Foreclosure o 441 Voting Sentenceo 230 Rent Lease & Ejectment a 442 Employment Habeas Corpus:o 240 Torts to Land o 443 Housingl 0 530 Generalo 245 Tort Product Liability Accommodations 0 535 Death Penalty f : ; ; " i S ' ~ ? J ; n U ~ l I ~ D .#'JJ'''o 290 All Odler Real Property o 445 Arner. wiDisabilities a 540 Mandamus & Other o 462 Naturalization ApplicationEmployment 0 550 Civil Rights o 463 Habeas Corpus.o 446 Amer. wiDisabilities 0 555 Prison Condition Alien DetaineeOther 0 560 Civil Detainee - (Prisoner Petition)

r ' \ o 448 Education Conditions of o 465 Other ImmigrationConfinement Actions

o 870 Taxes (U.S. Plain tiff ActIReview or Appeal oor Defendant) Agency Decisiono 871 IRS-Third Party 0 950 Constitutionality of26 USC 7609 State Statutes

V. {l}RI]GIN (place an "X" in One Box Only) O Transferred fromI ~ r i g i n a l . 0 2 Removed from 0 3 Remanded from 0 4 Reinstated or 5 another dIstrict 0 6 MultidistrictI'roceedmg State Court Appellate Court Reopened fsnedjfi,i LitigationCite the U.S. C J ~ 1 Statute under which you are filing (Do not clteju,lsdlctJonal statutes unless diversity):. CAUSE OF ACTION 35 U.S.C. 281,289, & 297Brief description of cause:Claims for damages, injunction, and declaratorv relief relatina to oatent infrinaement and license agreelJKilntVII. REQUESTED IN o CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in ~ m p l } i n t

COMPLAINT: UNDER F.KCP. 23 In excess of $75,000.00 JURY DEMAND: 0 Yes /IX>/ovIII. RELATED CASE(S) (See instructions):IF ANY JUDGE DOCKET NUMBERDATE05/07/2012FOR OFFICE USE ONLY

SIGNATURE Of ATTORNEY OF RECORDIslRichard S. Julie (RSJ8335) MAY 8 2012

RECEIPf# AMOUNT APPLYING IFP JUDGE---- MAG. JUDGE

Case 2:12-cv-02526-GP Document 1 Filed 05/08/12 Page 1 of 34
http:///reader/full/75,000.00http:///reader/full/75,000.00


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-------------------------------------------------------------------------

GPo STATES DISTRICT COURTFOR THE EASTER:'" DISTRICT OF PENNSYLVANIA - DESIGNATION FORM to be used by counsel to indicate the category of the case for the purpose of assignment to appropriate calendar. 11'.' 0, 520 King of Prussia Road, Wayne, Pennsylvania 19087 ' Address ofPlainti ff:________________________________________.....!

+: da t 474 Main Street, Wakefield, Massachusetts 01880esso e.cn n:__________________________________________________Add fDMassachusetts and PennsylvaniaPlace of Accident, Incident or Transaction:_________--:-':':'"'--::'__ -::::-;-;::;---;-;-::-:_-:-:::_--:-____________________

(Use Reverse Side For Additio nal Space)

Does this case involve multidistrict litigation possibilities? YesD NRELATED CASE. IF ANY:

Docs this civil action involve a nongovernmental corporate party with any parent corporation and any publicly held corporation owning 10(Attach two copies of the Disclosure Statement Fonn in accordance with Fed.R.Civ.P. 7.1(a)) Yes D N [] l

Case Number:__--_.....,._----Judgc---_____________ Date Tenninated: _____________________Civil cases are deemed related when yes is answered to any of the following questions:1. Is this case related to property included in an earlier numbered suit pending or within one year previously tenninated action in this court?

YesD Nol21]2. Does this case involve the same issue of fact or grow out of the same transaction as a prior suit pending or within one year previously tenninated

action in this court?YesD Nol:il

3. Docs this case involve the validity or infringement of a patent already in suit or any earlier numbered case pending or within one year previouslytenninated action in this court? YesD NoGl

4. Is this case a second or successive habeas corpus, social security appeal, or pro se civil rights case filed by the same individual?YesD Nol21]

CIVIL: (place t / in ONE CATEGORY ONLY) A Federal Question Cases: B. Diversity Jurisdiction Cases: 1. 0 Indemnity Contract, Marine Contract, and All Other Contracts 1. 0 Insurance Contract and Other Contracts2. 0 FELA 2. 0 Airplane Personal Injury3. 0 Jones Act-Personal Injury 3. 0 Assault, Defamation

4. 0 Marine Personal Injury4 . ~ t i t r u s t 5. tent 5. 0 Motor Vehicle Personal Injury6. bor-Management Relations 6. 0 Other Personal Injury (Please

specify)7. 0 Civil Rights 7. 0 Products Liability8. 0 Habeas Corpus 8. 0 Products Liability - - Asbestos9. 0 Securities Act(s) Cases 9. 0 All other Diversity Cases lO. 0 Social Security Review Cases (please specity)

&II . 0 All other Federal Question Cases

(Please specity) ARBITRATION CERTIFICATION (Check Appropriate Category)I, Richard S. Julie ,counsel of record do hereby certity:

rsuant to Local Civil Rule 53.2, Section 3(c)(2), that to the best of my knowledge and behef, the damages recoverable In this civil action case cxceed the sum of150, 0.00 exclusive of interest and costs;

I:lI. Reltef other than monetary damages is sought. DATE: May 8, 2012 IsIRichard S. Julie (RSJ8335) RSJ83351 PA Bar #205384

Attorney-at-Law Attorney I.D.#NOTE: A trial de novo will be a trial by jury only if there has been compliance with F.R.C.P. 38. MAY 8 2012

I certify that, to my knowledge, the within case is not related to any case now pending or within one year previously terminated action in this court exceptas noted above. DATE: May 7, 2012 IslRichard S. Julie (RSJ8335) RSJ83351 PA Bar #205384

Attorney-at-Law Attorney I.D.#CIV. 609 (6108)



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G IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CASE MANAGEMENT TRACK DESIGNATION FORM CIVIL ACTIONSUE WILLIAMSON VALERI

v. 12 2526NO.MYSTIC INDUSTRIES CORPORATION

In accordance with the Civil Justice Expense and Delay Reduction Plan of this court, counsel forplaintiff shall complete a Case Management Track Designation Form in all civil cases at the time offiling the complaint and serve a copy on all defendants. (See 1:03 of the plan set forth on the reverseside of this form.) In the event that a defendant does not agree with the plaintiff regarding saiddesignation, that defendant shall, with its first appearance, submit to the clerk of court and serve onthe plaintiff and all other parties, a Case Management Track Designation Form specifying the trackto which that defendant believes the case should be assigned.SELECT ONE OF THE FOLLOWING CASE MANAGEMENT TRACKS:(a) Habeas Corpus - Cases brought under 28 U.S.c. 2241 through 2255. ( )(b) Social Security - Cases requesting review of a decision of the Secretary ofHealthand Human Services denying plaintiff Social Security Benefits. ( )(c) Arbitration - Cases required to be designated for arbitration under Local Civil Rule 53.2. ( )(d) Asbestos - Cases involving claims for personal injury or property damage fromexposure to asbestos. ( )(e) Special Management - Cases that do not fall into tracks (a) through (d) that arecommonly referred to as complex and that need special or intense management bythe court. (See reverse side of this form for a detailed explanation of specialmanagement cases.)(f) Standard Management Cases that do not fall into anyone of the other tracks.

May 8, 2012 Richard S. Julie (RSJ8335) Plainti ff Sue Williamson ValeriDate Attorney-at-law Attorney for(215) 5753800 (215) 5753801 [email protected]

Telephone FAX Number E-Mail Address

(Civ. 660) 10/02

MAY 8 2012

mailto:[email protected]:[email protected]


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GIN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SUE WILLIAMSON VALERI CIVIL ACTION520 King of Prussia Road 12 2526Wayne, Pennsylvania 19087,Plaintiff,

v. FILEDMYSTIC INDUSTRIES CORPORATION MAY 82012 .474 Main Street :;'-EliIlA-':/Wakefield, Massachusetts 01880,

Defendant.

COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEFPlaintiff Sue Williamson Valeri ("Mrs. Valeri"), through undersigned counsel, brings this

Complaint against defendant Mystic Industries Corporation ("Mystic") and avers in supportthereof as follows:

NATURE OF THE ACTION1. This is an action for damages arising out of (i) Mystic's infringement of a number

of United States Letters Patent issued to and owned by Mrs. Valeri (the "Patents"), (ii) Mystic'sbreach of a license agreement relating to some of the Patents (the"Agreement"), (iii) fordeclaratory relief relating to the invalidity and/or termination of such Agreement, (iv) for aninjunction barring Mystic from continuing to infringe the Patents, and (v) for other and relatedclaims arising out of Mystic's patent infringement and wrongful conduct in connection with theAgreement.



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2. As set forth below, Mrs. Valeri contends that the Agreement was void ab initio(or is voidable or terminable) because Mystic failed to make the disclosures required by theAmerican Inventors Protection Act, 35 U.S.C. 297 CAIPAn), prior (or subsequent) to Mrs.Valeri's execution of the Agreement. Mystic is therefore liable to Mrs. Valeri for its violationsof the AIP A and for infringing the Patents.

3. Even if the Agreement were not void (or voidable), Mystic has repeatedlybreached the Agreement by, as set forth below, failing to pay royalties, stopping payment on aroyalty check without cause, failing to send a royalty report, failing to use commerciallyreasonable marketing efforts, failing to keep Mrs. Valeri apprised of Mystic's customers, failingto mark the patented goods with Mrs. Valeri's registered trademark, and breaching the duty ofgood faith and fair dealing by, inter alia, infringing Mrs. Valeri's Patents (including Patentswhich were never licensed to Mystic), failing to identify known third-party infringers of thePatents, and violating the AlPA.

4. On account of these and other breaches of the Agreement, Mrs. Valeri terminatedthe Agreement (to the extent it was not otherwise void ab initio for violating the AlPA), pursuantto its terms, in 2007. Mystic has nevertheless continued to practice the patented inventionscovered by Mrs. Valeri's Patents.

5. Thus, should the Court find that the Agreement is not void, voidable, orterminable - notwithstanding Mystic's violations of the AlP A - Mystic is nevertheless liable toMrs. Valeri for its violations of the AlPA, for infringing the Patents (both before and after theAgreement was terminated), and for breaching the Agreement.

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6. Even ifthe Court were to find that Mrs. Valeri's termination of the Agreement(for whatever reason) was ineffective, Mystic would nevertheless be liable to Mrs. Valeri for itsviolations of the AIPA, for infringement of those Patents which were never licensed to Mystic,and for its breaches of the Agreement.

7. In any event whether the Agreement was void, voidable, or terminable, andregardless ofwhether Mrs. Valeri's termination of the Agreement was effective Mrs. Valeri isentitled to damages under the Uniform Commercial Code for Mystic's stopping payment on herJanuary 2012 royalty check without cause. She is also entitled to an accounting for all ofMystic's sales (and related expenses) ofproducts covered by her Patents, as well as a judicialdeclaration that the Agreement was void ab initio or voidable and/or that the Agreement hasbeen rescinded, terminated, or otherwise rendered unenforceable.

PARTIES8. Plaintiff Mrs. Valeri is an individual domiciliary and citizen of the

Commonwealth ofPennsylvania, residing at 520 King ofPrussia Road, Wayne, Pennsylvania.9. Defendant Mystic is a corporation organized and existing under the laws of the

Commonwealth ofMassachusetts with its principal place ofbusiness located at 474 Main Street,Wakefield, Massachusetts. Mystic is therefore a citizen of the Commonwealth ofMassachusettsand of no other state.

JURISDICTION AND VENUE10. Jurisdiction is proper in this Court pursuant to 28 U.S.C. 1331 and 1338(a) in

that this is, in part, an action for patent infringement arising under an Act ofCongress relating topatents (35 U.S.C. 281).

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11. Jurisdiction is proper in this Court pursuant to 35 U.S.C. 289, in that this is, inpart, an action for infringement of a number ofUnited States design patents.

12. Jurisdiction is proper in this Court pursuant to 28 U.S.C. 1332 in that the matterin controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and isbetween citizens of different states.

13. Jurisdiction is proper in this Court pursuant to 28 U.S.C. 1367(a) in that any andall claims asserted by Mrs. Valeri over which this Court may lack original jurisdiction are sorelated to Mrs. Valeri's claims over which this Court has original jurisdiction that they form partof the same case or controversy under Article III of the United States Constitution.

14. Venue is proper in this District pursuant to 28 U.S.c. 1391(a) in that asubstantial part of the events or omissions giving rise to Mrs. Valeri's claims occurred in thisDistrict.

15. Mystic, a corporation, "resides" in this District within the meaning of 28 U .S.C. 1391(c)(2), in that it is subject to this Court's personal jurisdiction with respect to this action.Venue is therefore also proper in this District pursuant to 28 U.S.C. 1400(b), in that this is anaction for patent infringement brought in a judicial district in which the defendant "resides.!l

FACTUAL BACKGROUNDI. The Patents

16. Mrs. Valeri, a housewife and mother of six children, is an independent inventorand creator of a number of innovative consumer products, including the "Reindeer Decorationfor Cars" (the "Reindeer Kit"), a decorative kit consisting of two fabric "antlers" and a plush red

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"nose. I An image of an automobile, decorated with Mrs. Valeri's Reindeer Kit, is reproducedbelow.

17. The Reindeer Kit is a seasonal item, most commonly purchased (and used) byconsumers during the Christmas holiday season.

18. Mrs. Valeri has invented a number of other seasonal, holiday-themed decorative

kits for motor vehicles, similar in concept to the Reindeer Kit, including a pair of rabbit ears witha plush rabbit nose (sold at Easter), a pair ofbat wings with a bat nose (sold at Halloween), a setof shamrocks (sold at St. Patrick's Day), a set ofhearts (sold at Valentine's Day), and a set ofcandy canes (sold at Christmas).

19. Mrs. Valeri has protected her innovative designs by obtaining design patentsissued by the United States Patent and Trademark Office (the "PTO"). The following table listssome of the patents issued to Mrs. Valeri by the PTO by patent number, issuance date, anddescription; true and correct copies of these patents are attached hereto as Exhibits, as reflectedin the table.

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. Patent #: Patent Date: Description: Exhibit:D521,924 (the "Easter Bunny Patent") May 30, 2006 Easter Bunny Kit AD522,956 (the "Bat Wing Patent") June 13, 2006 Bat Wing Kit B ID534,476 (the "Reindeer Patent").... January 2, 2007 Reindeer Kit C ID534,477 (the !1Shamrock Patent") January 2, 2007 Shamrock Kit D D534,478 (the "Heart Patent") January 2, 2007 Heart Kit E,..-.........................D534,479 (the "Candy Cane Patent") January 2, 2007 Candy Cane Kit FC -. . - .. . .. . ...

20. Mrs. Valeri has been the sole owner of each of the Easter Bunny Patent, the BatWing Patent, the Reindeer Patent, the Shamrock Patent, the Heart Patent, and the Candy CanePatent (collectively, the "Patents") at all times from the date of the invention of each patenteddesign, through the date each patent application was filed, through the date each such patent wasissued, through and including the date ofthis Complaint.II. The Trademark

21. Mrs. Valeri is the owner of the federally registered trademark "Car Get-Ups"(the "Car Get-Ups Trademark"), which was registered on the Principal Register of the PTa onMarch 14, 2006, Registration Number 3,068,796.III. The Agreement

22. On or about February 28,2006, Mrs. Valeri and Mystic each executed a purportedlicense agreement (the "Agreement," a true and correct copy ofwhich is attached hereto asExhibit G), pursuant to which Mrs. Valeri licensed the Easter Bunny Patent, the Bat WingsPatent, and the Reindeer Patent to Mystic on a non-exclusive basis for the remaining life of eachsuch patent (the "Term"). See id., 2 & 7.1. The Agreement permitted Mystic to manufactureand sell Easter Bunny Kits, Bat Wing Kits, and Reindeer Kits (the "Licensed Product")throughout the world during such Term. See id., 2.

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23. Mrs. Valeri has never licensed any of the Shamrock Patent, the Heart Patent, orthe Candy Cane Patent to Mystic.

24. Mystic did not make any of the disclosures required by the AlPA prior (orsubsequent) to Mrs. Valeri's execution of the Agreement.

25. In connection with the license of the Easter Bunny Patent, Bat Wings Patent, andReindeer Patent, Mrs. Valeri disclosed and licensed to Mystic certain "Product Know-How,"consisting of certain

confidential, technical, or proprietary information and knowledgenot generally known to the public . . . that relates, directly orindirectly to (i) [the Easter Bunny Patent, Bat Wing Patent, andReindeer Patent] or any product, process, design or other mattercovered by any [of those three patents], or (ii) the design,development, manufacture, testing, use or sale of any LicensedProduct contemplated under [the] Agreement.

Id., 1.11; see also id, 2, 1.5, & 1.13. Among the confidential "Product Know-How" whichMrs. Valeri disclosed and licensed to Mystic pursuant to the Agreement was confidentialinformation concerning the manufacturing process of the Licensed Product and confidential salescontacts which Mrs. Valeri had made.

26. Pursuant to the Agreement, Mrs. Valeri granted Mystic an exclusive license to theCar Get-Ups Trademark "to use and practice throughout the [world] during the Term of [the]Agreement." !d., 2.

27. The Agreement required Mystic to mark all Licensed Product (or its packaging)with the relevant patent number and the Car Get-Ups Trademark. See Agreement, ]3. Mystichad the option, under the Agreement, of omitting the Car Get-Ups Trademark from thepackaging of the Licensed Product, but not from the Licensed Product itself. See id.

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28. Mystic was required during the Tenn to "use it [sic] commercially reasonableefforts to market the" Licensed Product. Id, 4.1 (emphasis added).

29. Under the Agreement, and in consideration of the license of the Easter BunnyPatent, the Bat Wing Patent, the Reindeer Patent, the Product Know-How, and the Car Get-UpsTrademark, Mystic was required to pay Mrs. Valeri a royalty equal to 7.5% ofMystic's Net SalesofLicensed Product during the Tenn, payable in full within 30 days after the end of eachcalendar quarter. See id , 2, 3.1 & 3.2. "Net Sales" were defined as Mystic's total grosscompensation received for the sale of the Licensed Product, less shipping and transport expenses,duties and taxes from the manufacturer to Mystic, discounts and allowances given for volumepurchases, and allowances for returns. See id, 1.7.

30. Mystic was required under the Agreement to "use commercially reasonableefforts to keep [Mrs. Valeri] regularly apprised of new customers of Licensed Product." Id, 4.3.

31. Mystic was required under the Agreement to provide Mrs. Valeri with a royaltyreport within thirty (30) days after the end of each calendar quarter, setting forth, inter alia, thetotal ofMystic's gross sales and Net Sales during the quarter and the royalties and fees payableunder the Agreement. See id., 3.2.

32. Pursuant to the Agreement, any royalty payment that was more than 30 days lateaccrued interest at the Prime Rate. See id., 3.3.

33. The Agreement gave Mrs. Valeri the right, at her own expense and not more thanonce per year, to have an independent CPA audit Mystic's books and records to detennine thecorrectness of any payments due under the Agreement. See id , 6.2.

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34. The Agreement, by its terms, could be terminated by either party upon the otherparty's breach or failure to perform any provision thereof. In the event of such a breach or nonperformance, the non-breaching party was entitled to send a written notice of such default. Theparty receiving such notice was required to cure the default within forty-five (45) days ofreceiving the notice. If it failed to do so, the non-breaching party was entitled to send a secondwritten notice (a "Notice ofTermination"), which would automatically and immediatelyterminate the Agreement seven days after the Notice ofTermination was received, unless thereceiving party notified the other party, within those seven days, of its intent to seek mediation orarbitration. See id., 8.2.

35. Mystic was required to "indemnify and hold harmless" Mrs. Valeri against andfrom any losses incurred by Mrs. Valeri arising from or relating to any material breach of theAgreement by Mystic. Id., 15.1.

36. Mystic expressly acknowledged in the Agreement that irreparable il1iury wouldresult from any breach of the Agreement, and expressly agreed that Mrs. Valeri would be entitled(in addition to damages and other remedies provided by law) to an injunction or other equitableremedy with respect to any such violation. See id., 26.

37. The Agreement was fully integrated, contained the entire understanding of theparties, and could not be amended except in a writing signed by both parties. See id., 23.

38. The Agreement, by its terms, was governed by New York law. See id., 22.

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IV. Mystic's Breaches of the Agreement39. Assuming arguendo that the Agreement was valid, Mystic repeatedly breached

the Agreement in a variety ofways, some of which are set forth below. Mrs. Valeri has been andcontinues to be damaged by Mystic's breaches of the Agreement as detailed herein.

A. Mystic's Failure to Pay Any Royalties for the Fourth Quarter of 2011 and First Quarter of 2012

40. On or about January 30,2012, Mystic sent Mrs. Valeri a royalty report and acheck, purportedly representing the royalty payment for the fourth quarter of 2011.

41. The fourth quarter is generally the most profitable quarter for exploitation of Mrs.Valeri's Patents, given that the Reindeer Kit (which is sold during the Christmas holiday season)is, by far, the most popular of the Licensed Products.

42. The royalty check sent by Mystic on or about January 30,2012 (the "Check") wasin the amount of $23,418.41. It was, by far, the largest royalty payment Mystic has ever sent toMrs. Valeri.

43. Mrs. Valeri promptly deposited the Check in her bank account upon receiving it.44. Unbeknownst to Mrs. Valeri, however, Mystic had, without prior notice, stopped

payment on the Check, causing the Check to "bounce" and causing Mrs. Valeri's bank to imposefees and other charges on Mrs. Valeri for depositing a bad check. A true and correct copy of theCheck, in the form in which it was returned to Mrs. Valeri by her bank, appears below.

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01/30/12 .....$23,418.41

MYSTIC ,"DUSTftlts CORP.".0. fIOlI 2!1&\\MI(EeD, CJlf18) 53-179-U' CHECK NO. 6944t - - - - - - - - - - ~ - - - - - - ............------I .woutfrI'.IIIl1;

45. Mrs. Valeri has repeatedly demanded that Mystic reissue a check for the royaltiesto which she is entitled for the fourth quarter of2011 (together with interest and compensationfor the charges imposed by Mrs. Valeri's bank). Mystic has failed and refused to do so.

46. Pursuant to Section 3.2 of the Agreement, Mystic was required to send Mrs.Valeri a royalty report and royalty payment for the first quarter of 2012 on or before April 30,2012. As of May 8, 2012, Mrs. Valeri has not received such royalty report or royalty payment.Upon information and belief, Mystic failed to send the royalty report or royalty payment for thefirst quarter of2012 on or before April 30, 2012.

B. Mystic's Failure to Apprise Mrs. Valeri of its Customers47. As set forth above, Mystic was required, under Section 4.3 of the Agreement, to

"use commercially reasonable efforts to keep [Mrs. Valeri] regularly apprised of new customersof the Licensed Product." Other than a single list of customers which was provided to Mrs.Valeri in October 2006 - and which is now more than five years out of date - Mystic has nevercomplied with this obligation.

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48. Beginning in 2006, Mrs. Valeri repeatedly asked Mystic for a list of its customersand of the retailers to which Mystic was marketing the Licensed Product. Mystic refused toprovide this information.

49. By letter dated March 7,2011, Mrs. Valeri requested details ofMystic'smarketing efforts, a complete customer list from the beginning of the Agreement to the present,and a complete accounting for all sales since the commencement of the Agreement.

50. By letter dated March 18, 2011, Mystic stated "We are not compelled by ouragreement to furnish you with a customer list." This is a breach of Section 4.3 of the Agreement.

51. By letter dated January 27, 2012, Mrs. Valeri declared Mystic in default (underSection 8.2 of the Agreement) due to Mystic's failure to apprise Mrs. Valeri of the identities ofits customers.

52. More than 45 days have elapsed since such declaration ofdefault, during whichtime Mystic has not cured (or even attempted or begun to cure) its default.

C. Mystic's Failure to Use Commercially Reasonable Marketing Efforts53. Mystic has failed to use "commercially reasonable efforts to market the" Licensed

Product, as required under 4.1 of the Agreement. While Mystic has occasionally made sales tomajor retailers, Mystic's incompetence and repellent demeanor has caused those retailers torefuse to work with Mystic and, therefore, to refuse to re-order Mrs. Valeri's products.

54. For example, in 2006, Mrs. Valeri was contacted by representatives of a numberofmajor retailers, including Home Depot, Wal-Mart, Sears, Party City, CVS, Target, AceHardware, Tru-Value, and The Christmas Tree Shops, all ofwhom expressed interest inpurchasing her Reindeer Kits for resale. Mrs. Valeri disclosed these contacts to Mystic (as part

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ofher licensing of the Product Know-How pursuant to the Agreement). Mystic only managed tomake sales to Party City and The Christmas Tree Shops, the two smallest of the retailers.

55. Although Party City and The Christmas Tree Shops sold out their entirerespective orders of the Reindeer Kits within one week of receiving them, Mystic failed to makesales to either retailer for the following Christmas season in 2007. Both retailers informed Mrs.Valeri that they had a variety ofproblems with Mystic and were unwilling to order any product-no matter how popular or successful - from Mystic.

56. After the debacle of2007 - when Party City and The Christmas Tree Shopsdeclined to reorder Licensed Product from Mystic - Mrs. Valeri herself obtained an order fromTarget, one of the largest retail chains in the United States. Mystic fulfilled that order for 2008,but Target did not re-order Licensed Product for 2009 (from Mystic or any other licensee of thePatents). Mrs. Valeri contacted Target to find out why the product was not re-ordered, and wastold by Kelly Funk, a seasonal merchandise buyer for Target, that Target would never work withMystic. Upon information and belief, Target refuses to do business with Mystic due to Mystic'sgross incompetence, apparent lack of business acumen, and the repellent demeanor ofitsexecutives.

57. Similarly, in 2009, a representative ofWalgreens (another major national retailchain) informed Mrs. Valeri that Walgreens, which had previously had discussions with Mysticabout purchasing Licensed Product, would never work with Mystic due to Mystic'sincompetence, apparent lack ofbusiness acumen, and repellent demeanor.

58. Mystic similarly sold the Reindeer Kits to Rite-Aid (another major national retailchain) in 2008, but failed to obtain a renewed order for 2009. Upon information and belief,

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Mystic failed to obtain a renewed order from Rite-Aid for the same reasons that Target andWalgreens declined to work with Mystic.

59. In 2007, Mrs. Valeri contacted a representative of CVS, having heard that CVSwas interested in carrying the Reindeer Kits. CVS (another large national retail chain) confirmedits interest, but asked that the packaging of the product be reconfigured to better fit on their storeshelves. Mrs. Valeri designed a new package in accordance with CVS's specifications and sentit, along with the CVS contact information, to Mystic, so that Mystic could complete the sale.Mystic's representatives expressed fury at Mrs. Valeri's contact with CVS, claiming that CVSwas "their" customer. Mystic failed to sell any Licensed Product to CVS, and, to this day, hasnever sold any Licensed Product to CVS (although CVS remains interested in carrying theReindeer Kits).

60. In 2008, Wal-Mart expressed interest to Mrs. Valeri in carrying the Reindeer Kits.Mrs. Valeri sent the Wal-Mart representative's contact information to Mystic, but Mystic failedto sell any Licensed Product to Wal-Mart, which is the largest retail chain in the United States.

61. In short, Mystic has had myriad opportunities to sell Mrs. Valeri's LicensedProduct to a variety of large national retail chains. Mystic has squandered each and everyone ofthese opportunities, either by failing to make any sales or by making sales for a single year andhandling those orders so incompetently and/or with such repellent demeanor that the retail chainsrefused to do business with Mystic again.

62. Mrs. Valeri's products, particularly the Reindeer Kits, are in high demand.Consumers want to buy them, but are unable to buy Licensed Product due to Mystic's repeatedfailure to use commercially reasonable efforts to market the products. Mystic's failure to meet

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consumer demand has thus created an opportunity for counterfeiters to rush into the market withcheap knock-offs that are damaging both Mrs. Valeri's reputation and her pocketbook and arejeopardizing the years of work and hundreds of thousands of dollars which Mrs. Valeri hasinvested in developing her patented inventions.

63. Mystic has informed Mrs. Valeri in writing that it is aware ofthe identities anumber of third parties who are infringing Mrs. Valeri's Patents. Despite Mrs. Valeri's repeatedwritten requests, Mystic has refused to disclose the identities of these infringers to Mrs. Valeri,thus interfering with and ultimately stymieing Mrs. Valeri's efforts to enforce her Patents.

D. Mystic's Failure to Mark Licensed Product With the Car Get-Ups Trademark64. As set forth above, the Agreement required Mystic to mark all Licensed Product

with the Car Get-Ups Trademark. See Agreement, 13.65. In breach of that obligation, Mystic has consistently failed and refused to mark the

Licensed Product (or its packaging) with the Car Get-Ups Trademark.66. While the Agreement purported to grant Mystic an exclusive license to the Car

Get-Ups Trademark (subject to certain rights in the Trademark retained by Mrs. Valeri pursuantto Section 2 of the Agreement), all rights in the Car Get-Ups Trademark reverted (or willrevert) to Mrs. Valeri upon the expiration, temlination, or declaration of invalidity of theAgreement. See id., 7.

67. Mystic's failure to mark the Licensed Product with the Car Get-Ups Trademarkhas permanently diminished the value of such Trademark, causing Mrs. Valeri substantialdamages.

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E. Mystic's Breaches of the Duty of Good Faith and Fair Dealing68. Mystic has breached its duty of good faith and fair dealing, implied in every

contract under New York law, through the patent infringement (including manufacture and saleofdecorative kits which infringe Patents which were never licensed to Mystic), violations of theAlPA, refusal to identify known infringers, and other wrongful conduct described elsewhere inthis Complaint.

69. Mrs. Valeri has been and continues to be damaged by Mystic's breaches of theAgreement as detailed herein.V. Mrs. Valeri's Termination of the Agreement

70. By written correspondence dated and sent on March 20,2007, Mrs. Valerideclared Mystic in default under the Agreement (pursuant to Section 8.2 thereof) on account of,inter alia, Mystic's failure (despite repeated requests) to apprise Mrs. Valeri ofnew customers ofthe Licensed Product (in violation of Section 4.3 of the Agreement).

71. Mystic did not cure (or attempt to cure) this default within 45 days after receivingMrs. Valeri's Notice ofDefault. To the contrary, Mystic has failed and refused, to this day, toapprise Mrs. Valeri of its customers who purchase the Licensed Product.

72. Accordingly, on May 10,2007, Mrs. Valeri sent Mystic a Notice ofTermination(a true and correct copy ofwhich is attached hereto as Exhibit H), terminating the Agreementpursuant to Section 8.2 thereof.

73. Mystic did not, within seven days thereafter (or at any time thereafter) notify Mrs.Valeri of its intent to seek mediation or arbitration pursuant to the Agreement.

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74. The Agreement therefore automatically terminated as of seven days after Mysticreceived Mrs. Valeri's Notice of Termination. See Agreement, 8.2.VI. Mystic's Patent Infringement

75. Assuming that the Agreement was void or voidable, all ofMystic'smanufacturing, importing, using, selling, and offering to sell products covered by Mrs. Valeri'sPatents constitutes infringement of those Patents.

76. Assuming that the Agreement was valid when executed, but was lawfullyterminated pursuant to its terms, all ofMystic's manufacturing, importing, using, selling, andoffering to sell products covered by Mrs. Valeri's Patents constitutes infringement of thosePatents to the extent that such conduct has occurred post-termination.

77. Regardless ofwhether the Agreement was valid or whether it has been terminatedeffectively, Mystic's manufacturing, importing, using, selling, and offering to sell productscovered by Mrs. Valeri's Patents which were never licensed (including the Shamrock Patent, theHeart Patent, and the Candy Cane Patent) constitutes infringement of those unlicensed Patents.

78. For the last several years, continuing to the present day, Mystic has beenmanufacturing and/or having manufactured products which infringe at least six (6) ofMrs.Valeri's Patents (the "Infringing Products").

79. Upon information and belief, such manufacturing is taking place in the PeoplesRepublic of China. Mrs. Valeri holds a number of Chinese Patents which protect the ReindeerKit, none ofwhich has ever been licensed to Mystic (in the Agreement or otherwise).

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80. Mystic is currently importing the Infringing Products, is using them and offeringthem for sale through the cargetups.com website and otherwise, and is in fact making sales of theInfringing Products in the United States.

81. For example, the Reindeer Patent covers a decorative kit for vehicles consisting oftwo antlers and a plush nose, as seen in the following drawing contained in the Reindeer Patent:

82. Mystic is making (or having made), importing, using, selling, and offering to sellan Infringing Product, which is advertised (and offered for sale) on its cargetups.com websitewith the following photograph:

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83. The following table shows other Infringing Products which Mystic is making (orhaving made), importing, using selling, and offering to sell through, inter alia, advertisements(and offers for sale) on its cargetups.com website. Each ofthe images on the left is taken fromone ofMrs. Valeri's Patents (namely, the Easter Bunny Patent, the Bat Wing Patent, theShamrock Patent, and the Candy Cane Patent). Each of the images on the right is taken from theadvertisements and offers for sale on Mystic's cargetups.com website:PatentEasterBunnyPatent

BatWingPatent

BatWingPatent

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Patent

CandyCanePatent

Valeri Patent

,.'v. ;>\ ,-,84. Another Infringing Product which Mystic is making (or having made), importing,

using, selling, and offering to sell is a "Mystic Industries Valentine's Day Vehicle Costume,"which is not offered for sale through the cargetups.com website, but is offered for sale elsewhere,including through Amazon.com. The following table shows, as above, an image from Mrs.Valeri's Heart Patent on the left and a photograph of the Mystic Industries Valentine's DayVehicle Costume (as advertised on Amazon.com) on the right:

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Valeri Patent Drawin Mystic Productatent ~ ~ = = ~ - - - - ~ - - - - -HeartPatent

85. Mrs. Valeri has never licensed the Shamrock Patent, the Candy Cane Patent, orthe Heart Patent to Mystic.

86. Another Infringing Product which Mystic is making (or having made), importing,using, selling, and offering to sell through, inter alia, its cargetups.com website is a decorativekit featuring two bat wings which infringes Mrs. Valeri's Bat Wing Patent (the "Mystic VampireBat Kit"). The following table shows, as above, an image from Mrs. Valeri's Bat Wing Patent onthe left and a photograph ofthe Mystic Vampire Bat Kit (as advertised on the cargetups.comwebsite) on the right:

Patent Valeri Patent Drawin M stic ProductBat WingPatent

(1\...1

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87. Mystic has never paid Mrs. Valeri any royalties for any sales of the MysticVampire Bat Kit. This failure constitutes, among other things, yet another breach of theAgreement (assuming the Agreement is or ever was valid).

88. While the Agreement purported to grant Mystic a non-exclusive license to theReindeer Patent, the Easter Bunny Patent, and the Bat Wing Patent, the Agreement has beenterminated and/or rescinded and/or is void and/or voidable, as set forth herein.

89. Each ofthe Infringing Products (as shown in the images above) embodies one ofMrs. Valeri's patented designs and/or a colorable imitation of one ofMrs. Valeri's patenteddesigns.

90. An ordinary wholesale or retail purchaser seeing one of the Infringing Productswould be misled into thinking she was purchasing (or being offered) one ofMrs. Valeri'spatented designs.

91. Mystic's infringement of Mrs. Valeri's Patents is willful, in that, inter alia, Mystichas (and at all relevant times has had) actual knowledge of each ofMrs. Valeri's Patents andMystic intentionally copied Mrs. Valeri's patented designs.

92. Mystic has not paid Mrs. Valeri royalties with respect to its sales of the InfringingProducts.

COUNT I Violation of the American Inventors Protection Act, 35 U.S.C. 297 93. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1

through 92 of this Complaint as if set forth at length herein.94. Congress enacted the American Inventors Protection Act, 35 U.S.C. 297

(nAIP A") for the purpose ofprotecting independent inventors like Mrs. Valeri from improper22



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and deceptive practices which have historically been used by invention promotion firms likeMystic.

95. The AlP A requires an invention promoter to make certain written disclosures tothe inventor, in writing, prior to entering into a contract for invention promotion services. Thepromoter must disclose:

a. The total number of inventions evaluated by the promoter for commercialpotential in the past five years, as well as the number of such inventions that havereceived positive evaluations and the number that have received negativeevaluations;b. The total number of customers who have contracted with the promoter in the pastfive years;c. The total number of customers who have received a net financial profit as a directresult of the promoter's services;d. The total number of customers who have received license agreements for theirinventions as a direct result of the promoter's services; ande. The names and addresses of all previous invention promotion companies withwhich the promoter or its officers have collectively or individually been affiliatedin the previous ten years.

See 35 U.S.C. 297(a).96. At all material times, Mystic is and has been an invention promoter within the

meaning of35 U.S.C. 297(c)(3).97. Mrs. Valeri was a customer ofMystic within the meaning of35 U.S.C.

297(c)(2).98. Mrs. Valeri and Mystic entered into a contract (the Agreement) whereby Mystic

was to provide invention promotion services to Mrs. Valeri within the meaning of35 U.S.C. 297(c)(4).

99. Prior to entering into the contract for invention promotion services (i.e., theAgreement), Mystic did not disclose to Mrs. Valeri in writing the total number of inventions

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evaluated by Mystic for commercial potential in the previous five years, nor did it disclose thenumber of those inventions that received positive evaluations, nor the number of those inventionsthat received negative evaluations.

100. Prior to entering into the Agreement, Mystic did not disclose to Mrs. Valeri inwriting the total number of customers who had contracted with Mystic during the previous fiveyears.

101. Prior to entering into the Agreement, Mystic did not disclose to Mrs. Valeri inwriting the total number of customers known by Mystic to have received a net financial profit asa direct result of the invention promotion services provided by Mystic.

102. Prior to entering into the Agreement, Mystic did not disclose to Mrs. Valeri inwriting the total number of customers known by Mystic to have received license agreements fortheir inventions as a direct result of the invention promotion services provided by Mystic.

103. Prior to entering into the Agreement, Mystic did not disclose to Mrs. Valeri inwriting the names and address of all previous invention promotion companies with which Mysticor its officers had collectively or individually been affiliated during the previous ten years.

104. As a direct and proximate result of Mystic's failure to make the disclosuresrequired by the AlPA, Mrs. Valeri executed the Agreement, which has resulted in substantialdirect and consequential damages to Mrs. Valeri.

105. Mystic undertook the actions and omissions discussed herein intentionally,willfully, and with the purpose of deceiving Mrs. Valeri.

106. Mrs. Valeri is therefore entitled to treble damages pursuant to 35 U.S.C. 297(b)(2).

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107. Mystic's failure to make the disclosures required by the AlP A renders theAgreement void ab initio.

108. In the alternative, Mystic's failure to make the disclosures required by the AlP Arenders the Agreement voidable at Mrs. Valeri's option and/or gives Mrs. Valeri the right torescind the Agreement.

Count IIPatent Infringement109. Plaintiff repeats and realleges each and every allegation contained in paragraphs I

through 108 of this Complaint as if set forth at length herein.110. Mystic has infringed and is still infringing each of the Easter Bunny Patent, the

Bat Wing Patent, the Reindeer Patent, the Shamrock Patent, the Heart Patent, and the CandyCane Patent by making, selling, offering for sale, having made, importing, and using decorativekits for motor vehicles (the Infringing Products, as described above) that embody the patentedinventions.

111. Mystic will continue to do so unless enjoined by this Court.112. Mrs. Valeri has suffered and will continue to suffer irreparable harm - for which

there is no adequate remedy at law - as a direct and proximate result of such unlawful infringingactivity unless Mystic is enjoined by this Court.

113. Mystic has profited through infringement ofMrs. Valeri's Patents.114. Mrs. Valeri has complied with the statutory requirement of placing a notice ofher

Patents on all decorative kits for motor vehicles she has manufactured, sold, or offered for salesince the date of issuance ofeach relevant Patent.

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115. Mrs. Valeri placed notices of "Patent Pending" on all decorative kits for motorvehicles which she manufactured, sold, or offered for sale prior to the issuance of each relevantPatent.

116. Mrs. Valeri has given Mystic written notice of the existence of each ofthePatents. Mystic is aware of each ofMrs. Valeri's relevant Patents and has nonetheless continuedto make, sell, offer for sale, have made, import, and use decorative kits for motor vehicles thatembody the patented inventions and the designs disclosed in the Patents

117. Mrs. Valeri has given Mystic written notice of the infringement.118. Mrs. Valeri has suffered substantial direct and consequential damages as a result

ofMystic's infringement of the Patents.119. On account ofMystic's infringement, Mrs. Valeri is entitled to "damages adequate

to compensate for the infringement, but in no event less than a reasonable royalty" pursuant to 35U.S.C. 284.

120. Mrs. Valeri is also entitled to recover Mystic's "total profit" on the InfringingProducts pursuant to 35 U.S.C. 289.Because Mystic's infringement ofMrs. Valeri's Patents was and is willful and deliberate, Mrs.Valeri is entitled to treble damages pursuant to 35 U.S.c. 284 and to reasonable attorneys' feesand costs pursuant to 35 U.S.C. 285.

COUNT II IBreach of Contract

121. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1through 120 of this Complaint as if set forth at length herein.

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122. Mrs. Valeri and Mystic entered into the written Agreement on or about February28,2006.

123. Mrs. Valeri has performed all of her obligations under the Agreement.124. Mystic breached the Agreement by, inter alia, failing to pay Mrs. Valeri any

royalties for the fourth quarter of 2011, failing to pay Mrs. Valeri any royalties for the firstquarter of2012, failing to pay Mrs. Valeri any royalties for sales of the Mystic Vampire Bat Kit,failing to send Mrs. Valeri a royalty report for the first quarter of 2012, stopping payment on theroyalty check sent in January 2012, failing to apprise Mrs. Valeri of its customers, failing to usecommercially reasonable marketing efforts, failing to mark Licensed Product with the Car Get-Ups Trademark, and breaching its duty of good faith and fair dealing through the patentinfringement, violations of the AIPA, refusal to identify known infringers ofMrs. Valeri'sPatents, and other wrongful conduct detailed in this Complaint.

125. Mrs. Valeri has suffered substantial direct and consequential damages, in anamount in excess of $75,000.00, exclusive of interest and costs, as a direct and proximate resultofMystic's breaches of the Agreement.

COUNT IVEnforcement of Instrument

126. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1through 125 of this Complaint as if set forth at length herein.

127. On or about January 30, 2012, Mystic sent Mrs. Valeri a check drawn on EasternBank in the amount of$23,418.41, purportedly representing its royalty payment for the fourthquarter of2011 (the "Check"). The Check constitutes an "instrument" within the meaning of

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Article 3 of the Unifonn Commercial Code (as adopted in Massachusetts, Pennsylvania, andNew York (the "UCC").

128. Mrs. Valeri promptly deposited the Check in her bank account upon receiving it.129. Unbeknownst to Mrs. Valeri, however, Mystic had, without prior notice, stopped

payment on the Check, causing the Check to "bounce" and causing Mrs. Valeri's bank to imposefees and other charges on Mrs. Valeri for depositing a bad check.

130. Mrs. Valeri is a "person entitled to enforce" the Check within the meaning ofArticle 3 of the UCC.

131. The Check was "taken for an obligation" within the meaning ofArticle 3 of theUCC, in that it was sent to Mrs. Valeri by Mystic as payment for an antecedent debt (Mystic'sroyalty obligations for the fourth quarter of 20 11).

132. Mrs. Valeri is entitled to enforcement ofthe Check pursuant to Article 3 of theUCC.

COUNT VDeclaratory Judgment133. Plaintiff repeats and real leges each and every allegation contained in paragraphs 1

through 132 of this Complaint as if set forth at length herein.134. An actual and justiciable controversy has arisen and presently exists with regard

to the enforceability and continuing effect of the Agreement.135. Mrs. Valeri contends, as set forth herein, that the Agreement was void ab initio,

and/or that the Agreement is voidable, and/or that the Agreement has been rescinded, tenninated,or is otherwise unenforceable.

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136. Mystic, on the other hand, contends that the Agreement was and remains validand in force.

137. Mrs. Valeri is entitled to ajudicial declaration that the Agreement was void abinitio and/or that the Agreement is voidable and/or that the Agreement has been rescinded,terminated, or is otherwise unenforceable.

138. A declaratory judgment is necessary and proper to set forth the rights andobligations that exist among the parties with respect to the Agreement. In the absence of such adeclaration, Mrs. Valeri has been and will continue to be harmed and damaged substantially inan amount exceeding $75,000.00, exclusive of interest and costs.

Count VIFor an Accounting139. Plaintiff repeats and realleges each and every allegation contained in paragraphs 1

through 138 of this Complaint as if set forth at length herein.140. Mystic has a duty to account to Mrs. Valeri for all sales ofInfringing Products

and all sales of Licensed Product, including, without limitation, a full and detailed accounting forall gross sales, all shipping and transport expenses actually incurred and paid by Mystic, allduties and taxes from any manufacturer to Mystic, all discounts and allowances given by Mysticfor volume purchases, all returns, and all allowances for any returns.

141. Mrs. Valeri respectfully requests that this Court issue an Order compelling andrequiring Mystic to provide such detailed accounting, in writing, and to provide regular updatesof same on a timely basis (to the extent that Mystic may not be enjoined from any future sales ofproducts which infringe the Patents).

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PRAYER FOR RELIEFWHEREFORE, plaintiff Sue Williamson Valeri respectfully requests that judgment be

entered in her favor and against defendant Mystic Industries Corporation as follows:(a) For compensatory damages in an amount in excess of$75,000 (exclusive of

interest and costs), together with interest, costs, and attorneys' fees;(b) For additional damages on account of pecuniary and consequential losses suffered

by plaintiff in an appropriate amount to be determined;(c) For treble damages pursuant to statute;(d) For punitive damages on account ofMystic's willful violations of 35 U.S.C. 297

and other willful and deliberate unlawful conduct;(e) For a preliminary and final injunction against Mystic's continuing acts of

infringement ofMrs. Valeri's Patents and the Car Get-Ups Trademark;(f) For enforcement ofMystic's Check in the amount of$23,418.41 pursuant to

Article 3 of the UCC;(g) For ajudicial declaration that the "License Agreement" dated February 28,2006,

between Mrs. Valeri and Mystic is rescinded and/or terminated;(h) For costs of suit (including attorneys' fees pursuant to contract and/or statute) and

interest;0) F or an accounting; and

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G) For such other and further re lief as the Court may deem just and proper.Respectfully submitted,BRAVERMAN KASKEY P.C.

BY: /s / Richard S. JulieDavid L. Braverman (Signature Code DLB2408)Richard S. Julie (Signature Code RSJ8335)One Liberty Place1650 Market Street, 56th FloorPhiladelphia, Pennsylvania 19103(215) 575-3800Attorneys for P laintifJ Sue Williamson Valeri

Dated: May 8, 2012

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Documents

Valeri v. Mystic Industries