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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

__________________________________________ )

NIKE, INC. ) )

Plaintiff, ) )

v. ) Civil Action No. )

WAL-MART STORES, INC. ) )

Defendant. ) Jury Trial Demanded __________________________________________)

COMPLAINT

The plaintiff, NIKE, Inc. (“NIKE”), for its complaint against defendant, Wal-Mart Stores,

Inc. (“Wal-Mart”), alleges as follows:

THE PARTIES

1. The plaintiff, NIKE, is a corporation organized and existing under the laws of the

State of Oregon and has a principal place of business at One Bowerman Drive, Beaverton,

Oregon, 97005.

2. On information and belief, the defendant, Wal-Mart, is a corporation organized

under the laws of the State of Delaware, and having a principal place of business at 702 SW

Eighth Street, Bentonville, Arkansas 72716, and having established places of business in the

Northern District of Illinois, Eastern Division, doing business as Wal-Mart.

JURISDICTION AND VENUE

3. This action arises under the patent laws of the United States, 35 U.S.C. § 1 et seq.

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4. This Court has subject matter jurisdiction over this dispute pursuant to 28 U.S.C.

§§ 1331, and 1338(a).

5. This Court may exercise personal jurisdiction over Wal-Mart based upon its

contacts with this forum, including, at least, regularly and intentionally doing business here.

6. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391(b) and

1400(b).

GENERAL ALLEGATIONS – THE NIKE DESIGN PATENTS

7. For many years, NIKE has engaged in the development, manufacture, and sale of

a wide array of athletic and fashion footwear, apparel, and sports equipment.

8. NIKE has taken steps to protect its innovative designs, including its footwear-

related designs. In particular, NIKE owns various United States design patents relating to its

footwear designs. Relevant to this dispute, NIKE is and has been the owner of all right, title, and

interest to each of the United States design patents identified in Table 1 (hearafter, the “NIKE

Design Patents”) since the date each patent duly and legally issued to NIKE. A copy of each

NIKE Design Patent is attached to this Complaint as indicated in Table 1.

Table 1: NIKE Design Patents

United States Design Patent Number Issue Date of Patent Complaint Exhibit

D498,914 (‘914 patent) November 30, 2004 A D499,248 (‘248 patent) December 7, 2004 B

GENERAL ALLEGATIONS – DEFENDANT’S INFRINGING ACTIVITIES

9. On information and belief, without NIKE’s authorization, Wal-Mart has offered

for sale and sold in the United States shoes having designs that are covered by the NIKE Design

Patents (hereafter, the “Infringing Shoes”). Upon information and belief, Wal-Mart knowingly

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and intentionally sold and continues to sell the Infringing Shoes as simulations of NIKE shoes.

10. Charts 1 and 2 below demonstrate Wal-Mart’s infringement by comparing images

of the Infringing Shoes sold by Wal-Mart with figures from the NIKE Design Patents.

Chart 1: Images Depicting Infringement of NIKE Design Patent D498,914 by the Wal-Mart Shoe

D498,914 Wal-Mart Shoe

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Chart 1: Images Depicting Infringement of NIKE Design Patent D498,914 by the Wal-Mart Shoe

D498,914 Wal-Mart Shoe

Chart 2: Images Depicting Infringement of NIKE Design Patent D499,248 by the Wal-Mart Shoe

D499,248 Wal-Mart Shoe

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Chart 2: Images Depicting Infringement of NIKE Design Patent D499,248 by the Wal-Mart Shoe

D499,248 Wal-Mart Shoe

11. Based on information and belief, defendant Wal-Mart has infringed and

continues to infringe the NIKE Design Patents within the meaning of 35 U.S.C. §271(a) at least

by selling and offering to sell the Infringing Shoes without NIKE’s authorization or license.

12. NIKE has sold and is currently selling its NIKE SHOX footwear models bearing

the design claimed in the ‘914 and ‘248 patents. As contemplated by the Patent Act, 35 U.S.C. §

287, NIKE has provided notice of its ‘914 and ‘248 patents by marking the ‘914 and ‘248 patent

numbers on NIKE footwear models bearing those patented designs since approximately the time

the United States Patent and Trademark Office issued the ‘914 and ‘248 patents.

13. On information and belief, Wal-Mart’s infringement of the NIKE Design Patents

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has been and continues to be intentional and willful.

COUNT 1: PATENT INFRINGEMENT

14. NIKE re-alleges each and every allegation set forth in paragraphs 1 through 13

above, inclusive, and incorporates them by reference herein.

15. Defendant has made, used, offered to sell, sold, and/or imported into the United

States, and still are making, using, offering to sell, selling, and/or importing into the United

States, shoes having designs that infringe the NIKE Design Patents without NIKE’s

authorization.

16. On information and belief, Defendant’s infringement has been intentional and

willful, making this an exceptional case.

17. NIKE has been and will continue to be irreparably harmed by Defendant’s

infringement of the NIKE Design Patents.

JURY DEMAND

NIKE demands a trial by jury.

RELIEF SOUGHT

WHEREFORE, NIKE respectfully prays for:

A. Judgment that Defendant willfully infringed the NIKE Design Patents in violation

of 35 U.S.C. § 271(a);

B. An injunction against further infringement of the NIKE Design Patents by

Defendant, its agents, servants, employees, officers, and all others controlled by them;

C. An award of damages adequate to compensate NIKE for the patent infringement

that has occurred pursuant to 35 U.S.C. § 284, which shall be trebled as a result of Defendant’s

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willful patent infringement, or an award of Defendant’s profits from its infringement pursuant to

35 U.S.C. § 289, whichever is greater, together with prejudgment interest and costs;

D. An assessment of costs, including reasonable attorney fees, pursuant to 35 U.S.C.

§ 285, with prejudgment interest;

E. Such other and further relief as this Court deems just and proper.

Respectfully submitted,

Dated: October 13, 2008 By: s/ Erik S. Maurer Christopher J. Renk (06199012)

[email protected] Erik S. Maurer (06275467)

[email protected] BANNER & WITCOFF, LTD. 10 S. Wacker Drive – Suite 3000 Chicago, Illinois 60606 Telephone: (312) 463-5000 Facsimile: (312) 463-5001

Attorneys for Plaintiff, NIKE, Inc.

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