Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 1 of 27 Page ID #:1
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DIAMOND McCARTHY LLP
Matthew K. Blackburn (SBN 261959)
[email protected]
150 California Street, Suite 220
San Francisco, California 94111
Telephone: 415.692.5200
Facsimile: 415.263.9200
Attorneys for Plaintiffs
LIQWD, INC. and OLAPLEX LLC
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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San Francisco, CA 94111
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LIQWD, INC., and OLAPLEX LLC,
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CASE NO.
Plaintiffs,
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v.
L’ORÉAL USA, INC., L’ORÉAL USA
PRODUCTS, INC., L’ORÉAL USA S/D, INC.,
and REDKEN 5TH AVENUE NYC, L.L.C.
COMPLAINT FOR PATENT
INFRINGEMENT
DEMAND FOR JURY TRIAL
Defendants.
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Plaintiffs Liqwd, Inc. (“Liqwd”) and Olaplex LLC (“Olaplex”) (collectively “Plaintiffs”
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or “Olaplex”), by and through their attorneys, Diamond McCarthy LLP, hereby bring this
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Complaint against L'Oréal USA, Inc.; L'Oréal USA Products, Inc.; L'Oréal USA S/D, Inc.; and
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Redken 5th Avenue NYC, L.L.C. (collectively, “L'Oréal”) for infringing Plaintiffs’ exclusive
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rights under the Patent Laws of the United States (35 U.S.C. § 1 et seq.), for violating the
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federal trademark statute (the “Lanham Act”, 15 U.S.C. § 1051 et seq.), and for violating the
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laws of the State of California. The infringing products are the Matrix Bond Ultim8 Step 1
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Amplifier, Redken pH-Bonder #1 Bond Protecting Additive, and L'Oréal Professionnel
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Smartbond Step 1 Additive (collectively, “Accused Products”). Olaplex alleges upon personal
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knowledge and upon information and belief to all other matters as follows:
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COMPLAINT-PATENT INFRINGEMENT,
FED. & CAL. FALSE ADVERTISING
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NATURE OF THE ACTION / INTRODUCTION
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1. L'Oréal’s corporate parent (L'Oréal S.A.) is the world’s largest beauty company with
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over $US27 billion in revenue during its last fiscal year. Recently, a small California start-up
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company called Olaplex discovered, developed, and eventually began selling a novel, game
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changing product to the professional hair color market.
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2. The Olaplex Bond Multiplier No. 1 (“Bond Multiplier”) protects hair during bleach
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treatments, and has quickly become a favorite treatment of hair care professionals. As of
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October 2016, hundreds of thousands of salons and in more than 80 countries have used
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Olaplex, and is widely acclaimed to have revolutionized the hair care industry.
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3. The effect of using Olaplex during such bleach treatments is readily apparent from a
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side-by-side picture of bleached hair with and without Olaplex. In the picture below, the left
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swatch of hair is an unprocessed color treated hair sample, the middle swatch of hair is the same
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color treated hair sample after being subjected to foil bleaching, rinsing, conditioning, and
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drying, and the right swatch of hair is the same color treated hair sample after foil bleaching
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with Olaplex Bond Multiplier added, rinsing, treating with Olaplex Bond Perfector (No. 2),
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rinsing, shampooing, conditioning, and drying.
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4. Bond Multiplier’s remarkable performance and the extremely positive response of hair
care professionals to the product spurred L'Oréal to approach Olaplex in mid-2015 about a
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COMPLAINT-PATENT INFRINGEMENT,
FED. & CAL. FALSE ADVERTISING
Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 3 of 27 Page ID #:3
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possible acquisition. Under the guise of a potential acquisition of Olaplex, L'Oréal received
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access to non-public, confidential, proprietary information from Olaplex about its technology.
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5. After receiving that confidential information L'Oréal ceased pursuing the acquisition of
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Olaplex, and instead willfully took and copied Olaplex’s technology without authorization to
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create three slavish “me too” knockoffs that are the subject of this patent infringement action,
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and is attempting to commercialize that purloined technology by misleading consumers, giving
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rise to action for false advertising claims.
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THE PARTIES
6. Plaintiff Liqwd is a California corporation, duly authorized to do business in the State of
California, with its principal place of business in Santa Barbara, California.
7. Plaintiff Olaplex is a California limited liability company, duly authorized to do business
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in the State of California, with its principal place of business in Santa Barbara, California.
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8. Defendant L'Oréal USA, Inc., (“L'Oréal USA, Inc.”) is a Delaware corporation,
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headquartered at 10 Hudson Yards, New York, New York.
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9. Defendant L'Oréal USA Products, Inc., (“L'Oréal USA Products, Inc.”) is a Delaware
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corporation, headquartered at 10 Hudson Yards, New York, New York, and is a subsidiary of
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L'Oréal USA, Inc.
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10. Defendant L'Oréal USA S/D, Inc., (“L'Oréal USA S/D, Inc.”) is a Delaware corporation,
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headquartered at 10 Hudson Yards, New York, New York, and is a subsidiary of L'Oréal USA,
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Inc.
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11. Defendant Redken 5th Avenue NYC L.L.C., (“Redken”) is a New York corporation,
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headquartered at 10 Hudson Yards, New York, New York, and is a subsidiary of L'Oréal USA,
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Inc.
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12. L’Oréal USA, Inc., L'Oréal USA Products, Inc., L'Oréal USA S/D, Inc., and Redken are
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engaged in the business of manufacturing and distributing hair care products under the
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“Matrix,” “Redken,” and “L'Oréal Professionnel” brand names.
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13. This is an action for patent infringement arising under the patent laws of the United
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States, 35 U.S.C. § 1 et seq., including §§ 271 and 281. This Court has original jurisdiction over
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the patent-infringement action under 28 U.S.C. §§ 1331 and 1338(a), over the federal false
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advertising claims pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, and 1367. This Court
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also has subject matter jurisdiction over the related California state law claims pursuant to 28
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U.S.C. § 1367.
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San Francisco, CA 94111
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JURISDICTION AND VENUE
14. Venue is proper in this judicial district under at least 28 U.S.C. §§ 1391 and 1400(b).
L'Oréal has one or more regular and established places of business in this judicial district,
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and/or has transacted business in this district. For example, L'Oréal USA Products and L'Oréal
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USA S/D are registered with the State of California to do business here. L'Oréal is responsible
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for acts of infringement occurring in the Central District of California, as alleged in this
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Complaint, and has delivered or caused to be delivered infringing products or services in the
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Central District of California. L'Oréal also has caused the infringing products to be advertised,
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promoted, and sold in this judicial district. Moreover, Olaplex is headquartered in the Central
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District of California, where the harm from L'Oréal’s infringement and tortious conduct has
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been and is being felt.
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BACKGROUND
Olaplex & Its Proprietary Hair Care Technology
15. Olaplex is a small company based in Santa Barbara, California that develops
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professional hair care products. Olaplex created the first successful and effective product in the
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hair “bond building” market, and it is the world leader in that market.
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16. Chemical bleach can be extremely harsh on hair. It can give hair a straw-like texture
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with fragile hair fibers that break easily. If bleach is allowed to stay in hair too long, it can even
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cause hair to melt (disintegrate), or even fall out.
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17. Repairing damaged hair has long been a shared concern of hair care professionals and
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their clients. Prior to Olaplex, hair care professionals lived with the fear that bleaching could
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ruin their client’s hair.
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18. Olaplex was founded after Dean Christal met Drs. Craig Hawker and Eric Pressly.
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Mr. Christal grew up in the beauty business with his mother running a hair salon out of his
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childhood home, and his father being a beauty distributor in the Midwest. Mr. Christal also
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gained experience in the haircare and beauty industries by working with his brother, Don
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Christal, who had founded Alterna Haircare and California Tan (sunless tanner). With this
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background and an entrepreneurial spirit, Mr. Christal urged Drs. Hawker and Pressly to tackle
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the holy grail of hair product development—figuring out how to keep chemical treatments from
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damaging hair.
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19. Working literally in Dr. Pressly’s home garage, Drs. Hawker and Pressly (pictured
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below) came up with the revolutionary technology to protect hair during chemical treatments:
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20. This first-of-a-kind approach used a special “binding agent” or active ingredient to
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protect the hair during chemical treatments (like bleaching). The active ingredient of the Bond
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Multiplier product is a chemical called “bis-aminopropyl diglycol dimaleate” and whose
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chemical structure is shown below:
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above).
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Olaplex’s Patents
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21. The opposite ends of the molecule have two “maleate” ions (highlighted in yellow
22. Olaplex initially filed applications for and obtained patents describing the dimaleate
form of the active ingredient actually used in the Bond Multiplier product.
23. Recognizing the opportunity for unscrupulous competitors to copy Olaplex’s proprietary
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technology and to use less expensive ingredients, Olaplex also obtained further patents.
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24. One of these patents is United States Patent No. 9,498,419 (“the ’419 patent” or
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“Asserted Patent”), entitled “Keratin Treatment Formulations and Methods,” was duly and
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legally issued by the United States Patent and Trademark Office on November 22, 2016. The
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’419 patent is attached hereto as Exhibit A.
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25. Plaintiff Liqwd is the owner of the ’419 patent. Plaintiff Olaplex is the exclusive
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licensee of the ’419 patent with full rights of enforcement and recovery, including the right to
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pursue recovery of royalties and damages for infringement of the ’419 patent.
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26. Each claim of the ’419 patent is valid and enforceable.
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27. The’419 patent claims describe, inter alia, methods for bleaching hair using maleic acid.
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Olaplex Pioneers Bonding Building in 2014
28. In early 2014, Olaplex was only made available to premier hair colorists. Tracey
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Cunningham (a Redken Global Creative Consultant), Guy Tang (a social media superstar with
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more than a million followers online), and Riawna Capri (a celebrity stylist and co-owner of the
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Nine Zero One Salon in West Hollywood) began using Olaplex with their clients and friends
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(including celebrities like Jennifer Lopez and Gwyneth Paltrow), and also spreading the word
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about the “miracle product” Olaplex.
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29. In May 2014, Beauty Launchpad (a national trade magazine) published a one-page
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feature on Olaplex, entitled “The Power of One.” The article describes how Olaplex can be used
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to help hair when it is being lightened (bleached). Ms. Cunningham is quoted in the article
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saying that “[y]ou still use your same haircolor, your same products, your same technique, and
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your same shampoos and conditioners, but the hair is stronger and shinier.”
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FED. & CAL. FALSE ADVERTISING
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example, in conjunction with lightening (bleaching) treatments. The second step (“No. 2”) is the
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“Bond Perfector” and is a cream that is applied after chemical processing of the hair and before
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it is shampooed and/or conditioned. The third step (“No. 3”) is the “Hair Perfector” and is
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designed for at-home use in between visits to the hair salon.
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Diamond McCarthy LLP
30. The first step (“No. 1”) is the patented Bond Multiplier product that is used, for
31. Olaplex formally launched to hair care professionals in June 2014 via the Olaplex.com
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website. In the first month alone, customers placed more than 1,500 orders for Olaplex
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products. That number nearly doubled the next month. In first six months, more than 20,000
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orders for Olaplex products were fulfilled on Olaplex.com alone. This success came when
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Olaplex did not have a single full-time employee and had not done any traditional advertising.
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32. In November 2014, Olaplex launched in the United States with SalonCentric, Inc.
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(“Salon Centric”), one of the largest wholesale salon and beauty supply distributors in the
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United States and a L'Oréal-owned subsidiary. Salon Centric opened some 100,000 accounts
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with Olaplex in the first six months. Olaplex generated literally millions of dollars of sales for
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Salon Centric in that short period.
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33. Olaplex also has been the subject of numerous stories in leading national and
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international publications, such as Allure, Beauty Now, British Vogue, Cosmopolitan, Daily
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Mail, Elle, Fashion Quarterly, Glamour Russia, Harper’s Bazaar, Huffington Post, Marie Claire,
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Modern Salon, MTV News, New York Magazine, New York Times, People Magazine, Pop
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Sugar, Refinery 29, U.S. Weekly, Vanity Fair Italia, Vogue Germany, Vogue India,
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Washingtonian, and Women’s Health. This partial list highlights the remarkable results that can
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be achieved with Olaplex’s innovative professional hair care technology and the dramatic
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influence that Olaplex is having on the hair care industry.
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34. Today, Bond Multiplier has been used by hundreds of thousands of stylists across the
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globe, and continues to receive industry awards and rave reviews. In March 2015, Olaplex won
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the category “Favorite Color Innovation (Tool or Treatment)” at the 15th Annual Stylist Choice
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Awards. At this year’s awards, Olaplex won two categories: “Favorite Bond Rebuilder” and
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“Favorite Product You Can’t Live Without.” Emma Stone, Taylor Swift, and Jennifer Lawrence
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all went blonde using Olaplex this summer.
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35. Olaplex has an incredible presence and following on social media, with many of the top
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personalities in the entertainment industry, showcasing their love of Olaplex. Below are un-
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solicited posts about Olaplex from celebrities Kim Kardashian West and Molly Sims:
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L'Oréal Receives Olaplex’s Confidential Information and then Ends Acquisition Talks
36. L'Oréal is in the business of selling, among other things, professional hair care products.
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Despite its long history, L'Oréal has never managed to successfully create the holy grail of hair
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product development—figuring out how to keep chemical treatments (like lightening or
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bleaching) from damaging hair.
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37. As word spread about the Olaplex “miracle treatment” and as Olaplex’s sales
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skyrocketed (including through L'Oréal’s Salon Centric distribution arm), L'Oréal became
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interested in learning more about Olaplex and how it worked.
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believed were responsible for Olaplex’s development. Drs. Pressly and Hawker were both
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contacted by a L'Oréal “Talent Acquisition” manager in March 2015 seeking to discuss their
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backgrounds and potential opportunities at L’Oréal. Drs. Pressly and Hawker did not respond to
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L'Oréal’s overtures.
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38. L'Oréal began with an effort to hire away Olaplex’s key employees, who L'Oréal
39. Next were a series of telephone calls from L'Oréal’s Roger Dolden (Senior Vice
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President of Business Development for L’Oréal USA, Inc.) to Dean Christal (Olaplex’s CEO).
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L'Oréal wanted to buy Olaplex, Mr. Dolden told Mr. Christal, but it needed information to more
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fully understand what it was buying. In addition to asking for access to Olaplex’s intellectual
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property, financials and marketing strategy, Mr. Dolden pressed for an in-person meeting with
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Olaplex’s chemists (Drs. Pressly and Hawker).
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40. In May 2015, L'Oréal USA, Inc. sent a Confidentiality Agreement to Olaplex to gain
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access to Olaplex’s proprietary information in connection with a potential acquisition of
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Olaplex. On or about May 15, 2015, that agreement was signed by both L'Oréal USA, Inc. and
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Olaplex.
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41. On or about May 2015 and under the agreement referenced in the paragraph above,
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Olaplex provided to L'Oréal with a copy of a then-unpublished patent application (Serial No.
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14/713,885) describing use of maleic acid during hair bleaching.
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42. An in-person meeting between L'Oréal and Olaplex happened in May 2015. Three
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L'Oréal representatives travelled to Santa Monica, California to meet with Mr. Christal and
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Dr. Pressly of Olaplex. The L'Oréal representatives in attendance were Mr. Dolden as well as
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Hugo Kunetz (President North Americas for L'Oréal Professional Products Division of L'Oréal
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S.A.), and Delphine Allard (International Director of Research and Innovation of L'Oréal S.A.).
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43. L'Oréal wanted to understand what made Olaplex work and how it provided the amazing
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results reported by customers. L'Oréal representatives brought a binder to the meeting with
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copies of Olaplex’s patents/patent applications, and sought to question Dr. Pressly about the
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technology. L'Oréal asked about Olaplex’s patents, the chemistry behind the products, and
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whether the active was stable in the bottled product. L'Oréal also pressed for details of
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Olaplex’s uniquely effective social media marketing strategy.
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44. The supposed effort by L'Oréal to acquire Olaplex continued for several more months.
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In June 2015, Mr. Christal shared with Mr. Dolden of L'Oréal sales figures for the first quarter
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of 2015. Mr. Dolden even travelled to Los Angeles to meet with Mr. Christal later that summer,
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for the stated purpose of discussing L'Oréal’s acquisition of Olaplex.
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45. However, by September 2015, negotiations fell apart.
L'Oréal Willfully Copies and Knocks-off Olaplex and its 3-Part System
46. After ceasing negotiations in acquiring Olaplex, L'Oréal embarked on a brazen scheme
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and created not one but three “me too” knock-offs that it hoped would mimic Olaplex’s success.
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These “me too” products include the Matrix Bond Ultim8 product (“Bond Ultim8”), the Redken
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pH-Bonder product (“pH-Bonder”), and the L'Oréal Professionnel Smartbond product
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(“Smartbond”).
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47. L'Oréal’s Bond Ultim8, pH-Bonder, and Smartbond products are collectively referred to
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herein as the “L'Oréal Bond Builders.” Each line of the L'Oréal Bond Builders has three
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products, which are described below. The term “Accused Products” in this Complaint refers to a
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subset of the L'Oréal Bond Builders, and are the Bond Ultim8 Step 1 (Amplifier), the pH-
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Bonder #1 (Bond Protecting Additive), and the Smartbond Step 1 (Additive).
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48. The L'Oréal entities involved in this unlawful patent infringement and false advertising
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are uniquely positioned to harm Olaplex. Since late 2014, L'Oréal’s Salon Centric subsidiary
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has been a distributor of Olaplex in the United States. This gave it access to highly valuable
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insights and information, such as the identities of salon-level customers, the frequency of their
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orders, the amounts of orders, customer feedback, and Olaplex’s marketing and branding
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strategy. This valuable commercial information provided a real-time insider’s view of the
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success of Olaplex in the marketplace. As a vertically integrated beauty company, L'Oréal has
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product development and manufacturing entities too. These entities could use commercial
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information obtained by Salon Centric to copy Olaplex and to attempt to usurp its unique
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position in the marketplace in a way that other companies could not.
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49. L'Oréal copied the revolutionary three-step Olaplex system to protect hair during
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professional bleaching treatments. The marketing imagery produced by L'Oréal strongly
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resembles the marketing materials created by Olaplex, showing the product packaging in the
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background with the products lined up in front and somewhat off-center:
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ORIGINAL OLAPLEX
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L'ORÉAL “ME TOO” KNOCKOFFS
Matrix
Bond Ultim8
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Redken
pH-Bonder
L'Oréal
Professionnel Smartbond
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50. Just like Olaplex (which has “No. 1”, “No. 2” and “No. 3” products), the L'Oréal Bond
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Builders include three components. Bond Ultim8 products are labelled 1, 2, and 3. pH-Bonder
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products are labelled 1, 2, and “Post-Service Perfector.” Smartbond products are labeled 1 and 2
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(there is no Step 3 Smartbond product in the United States at this time, but it is available
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overseas).
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51. Just like Olaplex, each of the three L'Oréal Bond Builders is sold as a kit containing the
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“1” and “2” products for use in the salon. Just like Olaplex, each kit includes a dosing dispenser
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(a syringe in the Bond Ultim8 and pH-Bonder kits, and a cup in the Smartbond kit). Just like
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Olaplex, L'Oréal sells the “step 3” or “Post-Service Perfector” products for home use by
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consumers (in between salon visits).
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52. Olaplex is sold in two different size kits. Olaplex calls the larger one the “Salon Intro
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Kit.” The smaller one is called the “Travelling Stylist kit.” Just like Olaplex, Bond Ultim8 and
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pH-Bonder are sold in two different size kits. Bond Ultim8 even uses similar names for its kits.
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The larger one is called the “Salon Intro Kit” (exactly the same name that Olaplex uses) and a
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smaller one is called the “Travel Kit” (a very similar name to the one that Olaplex uses).
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53. With Olaplex, hair care professionals use the patented Bond Multiplier No. 1 product at
the salon to protect hair during bleach treatments. The Accused Products are aimed at the very
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same end consumers. The Bond Ultim8 Step 1 (Amplifier) is sold to hair care professionals as a
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way to prevent breakage and protect hair bonds during lightening services (bleaching). The pH-
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Bonder #1 (Bond Protecting Additive) and Smartbond Step 1 (Additive) also are for use by hair
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care professionals during lightening or bleaching hair treatments.
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54. With Olaplex, the patented Bond Multiplier No. 1 product has four ingredients: water,
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the active ingredient (bis-aminopropyl diglycol dimaleate) and two preservatives (sodium
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benzoate, and phenoxyethanol).
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55. L'Oréal’s Accused Products have very similar ingredients. The Accused Bond Ultim8
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Step 1 Amplifier, and pH-Bonder #1 Bond Protecting Additive have the same seven ingredients:
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water, the active ingredient (maleic acid), a buffering agent (ethanolamine), citric acid, and
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three food dyes (CI 19140/Yellow 5, CI 14700/Red 4, CI 42090/Blue 1). The SmartBond Step 1
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Additive has the following six ingredients: water, the active ingredient (maleic acid), a buffering
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agent (ethanolamine), and three food dyes (CI 19140/Yellow 5, CI 14700/Red 4, CI 42090/Blue
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1).
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56. Olaplex became known shortly after it was launched as “liquid gold” due to its unique
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golden yellow color, which is visible through its translucent bottle. L'Oréal’s Accused Products
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add three different food dyes to achieve a color reminiscent of the original Olaplex Bond
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Multiplier No. 1 product. The pictures below show the Accused Bond Ultim8 Step 1 product
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(left) and Olaplex Bond Multiplier No. 1 (right) side-by-side and demonstrate the color
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similarity of the products in the bottles as used by hair care professionals:
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57. The instructions for using Olaplex and L'Oréal Bond Builders are also very similar. For
2
the Accused Products, the ratios of the product to the bleach or lightener used are virtually
3
identical, and call for about 4 ml of the respective product for each 15 grams of lightening
4
(bleach) powder:
5
ORIGINAL OLAPLEX INSTRUCTIONS1
6
“2. For lightener in foils, add ¼ oz (7.5ml) Olaplex No. 1 for 30-60g of lightener powder.
For anything less, add ⅛ oz (3.75ml) Olaplex No. 1.”
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INSTRUCTIONS FOR L'ORÉAL “ME TOO” KNOCKOFFS
8
9
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150 California Street, Suite 2200
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12
13
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Matrix
Bond Ultim8
Redken
pH-Bonder
L'Oréal
Professionnel Smartbond
“2. Add 4ml of Step 1 per
15g of lightener powder to
the mixture. Use 8ml (1/4
oz.) of STEP 1 when mixing
30g or more of lightener
powder ….”
“2. For lightener, add 4 ml
of pH-Bonder #1 for every
15–30 grams (1/2 – 1 oz) of
powder or 8 ml of pHBonder #1 for every 30–60
grams (1 – 2 oz) of powder
used in mixture ….”
2. For lightener product, add
4ml (.14 oz) of Step 1
additive for every 15-30 g
(1/2-1 oz) or 8ml of Step 1
additive for every 30-60 g
(1-2 oz) of lightening
product used in the final
mixture.”
15
58. The original Olaplex is a two-step salon service with a white “Bond Perfector No. 2”
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17
cream being applied by the hair care professional after chemical processing of the hair and
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before shampooing. L'Oréal copied that too in its Bond Builders. Matrix Bond Ultim8 “2”
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sealer, Redken pH-Bonder “fiber restorative pre-wash concentrate” “#2”, and L'Oréal
20
Professionnel Smart Bond pre-shampoo Step “2” are white creams applied after chemical
21
processing of the hair and before it is shampooed and/or conditioned. Unlike the Accused
22
Products, L'Oréal’s “2” products do not contain dyes.
23
24
25
26
27
28
1
The written instructions for Olaplex changed in September 2016, and now instruct hair care
professionals to use about half as much Bond Multiplier product during bleaching. L'Oréal
copied the original Olaplex instructions dating back to just after the launch of the product
(which are quoted throughout this Complaint), and L'Oréal has not yet updated their instructions
to precisely match Olaplex’s current instructions. (Although Olaplex changed its instructions, it
was instructing users since late 2014 to use less Bond Multiplier product during bleach if they
were not seeing appropriate lift (color lightening).
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pre-wash cream / pre shampoo products in amounts and for times strikingly similar to the
3
original Olaplex:
4
ORIGINAL OLAPLEX INSTRUCTIONS
5
“4. Apply ½ oz (15 ml) of Bond Perfector) from roots to ends. Comb thoroughly once.
Leave on for a minimum of 5 minutes. For damaged hair, leave on for at least 10 minutes.”
6
7
8
9
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Diamond McCarthy LLP
59. Again, L'Oréal’s instructions tell hair care professionals to use its “me too” knockoff
12
13
INSTRUCTIONS FOR L'ORÉAL “ME TOO” KNOCKOFFS
Matrix
Bond Ultim8
“Apply 15ml–30ml (1/2–
1oz) of STEP 2 SEALER
depending on length and
density of hair. Leave on 10
minutes at room
temperature.”
Redken
pH-Bonder
L'Oréal
Professionnel Smartbond
“Depending on hair length
and density, apply 15-30 g
of pH-Bonder #2 into hair
from roots to ends. Gently
comb through once. Leave
on for 10 minutes at room
temperature.”
“2. Depending on hair length
and density, apply 4 to 8
pumps of Step 2 pre
shampoo into hair from
roots to ends.
3. Comb through once to
evenly distribute.
14
4. Leave on for 10 min at
room temperature.”
15
16
17
18
19
20
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60. The third component in the Olaplex system is the “Post-Service Perfector,” which is for
at-home use by customers in between visits to the hair salon. Again, the at-home components of
each of the L'Oréal Bond Builders omit food dyes entirely. As a result, each is white and copies
the appearance of Olaplex’s “Post-Service Perfector.” L'Oréal brazenly named the third (take
home) component of its pH-Bonder product “Post-Service Perfector,” again trying to benefit
from the reputation of Olaplex’s No. 3 “Hair Perfector” product.
22
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COMPLAINT-PATENT INFRINGEMENT,
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Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 16 of 27 Page ID #:16
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to unwashed towel-dried hair and left for at least 10 minutes. L'Oréal copied these instructions
3
too:
4
5
6
7
8
9
10
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Diamond McCarthy LLP
61. Olaplex instructs that its Hair Perfector product should be used once a week and applied
12
13
ORIGINAL OLAPLEX INSTRUCTIONS
“1. Apply a generous amount from roots to ends on unwashed towel-dried hair. Comb
through once. Leave on for a minimum of 10 minutes or more.”
INSTRUCTIONS FOR L'ORÉAL “ME TOO” KNOCKOFFS
Matrix Bond Ultim8
Redken pH-Bonder
“To be used once a week. Before shampoo,
apply on wet, towel-dried hair. Massage
into hair from roots to ends. Leave on for at
least 10 minutes.”
“Before shampoo, apply on wet, towel-dried
hair. Massage into hair from roots to ends.
Leave on for at least 10 minutes.”
L'Oréal Was Aware of Olaplex’s Patents
62. L'Oréal either had actual knowledge of the Asserted Patent and/or its respective
14
application prior to this action, or willfully blinded itself to the existence of the Asserted Patent,
15
as well as Olaplex’s other patents.
16
17
18
63. L'Oréal monitors Olaplex’s patents by, for example, monitoring websites having
information regarding Olaplex’s patents.
64. On or about May 2015 and under a non-disclosure agreement, L'Oréal obtained from
19
Olaplex a copy of a then-unpublished patent application (Serial No. 14/713,885). The
20
’419 patent is related to this application and shares the same disclosure.
21
65. L'Oréal also demonstrated its awareness of Olaplex’s patent (and/or its pending
22
application) by statements that L'Oréal made to the public. L'Oréal has affirmatively and
23
repeatedly told the public that maleic acid “alone” cannot be patented in an attempt to mislead
24
that public that its “me too” knockoffs were lawful. However, L'Oréal knew that Olaplex had
25
been patented and that Olaplex was continuing to patent the use of that ingredient in a specific
26
bleaching method that L'Oréal had copied.
27
28
66. L'Oréal made one or more third party submissions to the U.S. Patent & Trademark
Office in hopes of stopping issuance of the ’419 patent. Those third party submissions were not
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FED. & CAL. FALSE ADVERTISING
Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 17 of 27 Page ID #:17
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successful, and the patent was issued after the independent patent examiner considered the prior
2
art submissions.
3
4
2016, on August 29, 2016, September 14, 2016, and September 23, 2016, certain documents
5
were submitted anonymously to the Patent Examiner considering this application, which
6
allegedly relevant to the pending claims. On information and belief, L'Oréal was behind one or
7
more of those anonymous submissions.
8
9
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San Francisco, CA 94111
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Diamond McCarthy LLP
67. The application for the ’419 patent was assigned Serial No. 15/087,415. On August 25,
68. In any event, L'Oréal has had actual knowledge of the Asserted Patent no later than the
filing of the original Complaint in this action.
69. L'Oréal continues its willfully infringing conduct to this day despite having this
11
knowledge.
12
L'Oréal’s False and Misleading Statements about the Accused Products
13
70. More than two years after it was formally launched in the United States, Olaplex has
14
developed a trusting, devoted following among hair care professionals and their clients alike.
15
Among the A-List celebrities who have experienced Olaplex are Emma Stone, Heidi Klum,
16
Taylor Swift, Jennifer Lawrence, Kim Kardashian West, Paul McCartney, Anthony Hopkins,
17
Jennifer Lopez, Charlize Theron, Cameron Diaz, Gwyneth Paltrow, Drew Barrymore, Britney
18
Spears, Amy Poehler, Lily Aldridge, Kaley Cuoco, Molly Sims, Margot Robbie, Ariana Grande,
19
and Julia Louis Dreyfus.
20
71. L'Oréal has recently begun promoting their Accused Products with false and misleading
21
statements. On information and belief, L'Oréal designed or intended its actions to intimidate or
22
trick Olaplex’s loyal customers into switching from Olaplex to L'Oréal’s Bond Builders,
23
including the Accused Products.
24
72. L'Oréal tells the public that pH-Bonder is “optimized” for Redken products, when that is
25
false and untrue. For example, Defendant Redken’s website (www.redken.com) advertises pH-
26
Bonder as being “Optimized for Redken Products.” On its twitter feed, Defendant Redken also
27
claims that “New #pHBonder has been optimized for usage with Redken lighteners and
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COMPLAINT-PATENT INFRINGEMENT,
FED. & CAL. FALSE ADVERTISING
Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 18 of 27 Page ID #:18
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#RedkenColor!” L'Oréal’s package instructions for using pH-Bonder also say that it is
2
“OPTIMIZED FOR USAGE WITH REDKEN LIGHTENERS AND COLOR.”
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4
150 California Street, Suite 2200
San Francisco, CA 94111
October 3, 2016 touts pH-Bonder as being “optimized for Redken color”:
5
https://www.YouTube.com/watch?v=0hwc44b2B4E (uploaded October 3, 2016) (“pH-
6
Bonder YouTube Video”)
7
Diamond McCarthy LLP
73. A YouTube marketing video uploaded by “Redken 5th Avenue NYC” on or about
74. Likewise, the website for Matrix hair products (www.matrixprofessional.com) has a
8
webpage claiming that “BOND Ultim8 is optimized when used with Matrix Color and
9
Lighteners.” See https://www.matrixprofessional.com/bondultim8 (visited November 16, 2016).
10
75. However, the pH-Bonder and Bond Ultim8 Accused Products are not specially
11
formulated or optimized for Redken or Matrix lighteners or color. Olaplex and its patented
12
Bond Multiplier product can be used with any hair color or lightener, and is compatible with
13
professional color lines. There is nothing special about pH-Bonder #1 (Bond Protecting
14
Additive) or Bond Ultim8 Step 1 (Amplifier) Accused Products.
15
L'Oréal’s False and Misleading Statements about Olaplex
16
76. L'Oréal has also attempted to usurp Olaplex’s leading position in the bond building
17
market by spreading false and malicious statements about Olaplex throughout the United States.
18
77. L'Oréal employees have tried to persuade Olaplex’s loyal customers (who know that
19
Olaplex is patent protected) that L'Oréal is not doing anything wrong because Olaplex’s patent
20
had somehow expired. An employee with a L'Oréal-owned distributor told a hair care
21
professional in Florida that the Olaplex technology patent had “run up” and the “secret recipe”
22
was available for any company to utilize. An employee with a L'Oréal-owned distributor told a
23
professional hair stylist in Kansas that the pH-Bonder product has the same ingredients as
24
Olaplex because of the patent expiring. These statements are false. Olaplex owns the rights to at
25
least four unexpired U.S. patents, and numerous pending applications. The unexpired
26
’419 patent has been and is currently being infringed by L'Oréal as detailed herein.
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Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 19 of 27 Page ID #:19
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78. In August 2016, an employee with a L'Oréal-owned distributor told a hair stylist in
2
Missouri that Olaplex will prevent the hair from holding color over time. This statement is also
3
false. Olaplex does prevent hair from holding color, even when it is used repeatedly.
4
79. A sales consultant with a L'Oréal subsidiary and a L'Oréal brand educator visited a
5
Florida salon in September 2016. During that visit, they talked about the pH-Bonder product
6
and also made false and malicious statements about Olaplex, including that Olaplex has a pH of
7
10 (which could destroy or at least severely damage hair), blows open the cuticle, and makes
8
hair fatter and thicker. These statements are also false. The pH of Olaplex is well below 10.
9
Olaplex does not damage the cuticle (the outer covering of individual hair fibers). Olaplex does
10
not deposit chemicals on the outside of the hair fibers to make them appear fatter or thicker.
11
80. A Redken artist told a professional hair stylist in Kentucky that Olaplex contains
12
parabens and silicone. That is false. Parabens are an anti-bacterial chemical that is increasingly
13
disfavored by consumers, who don’t want it in their hair care products. Silicones are used to
14
coat the exterior surface of the hair fibers and make them look shiny. Olaplex contains neither
15
ingredient.
16
FIRST CAUSE OF ACTION
17
(Patent Infringement, 35 U.S.C. §§ 1 et seq.)
18
81. Plaintiffs incorporate by reference each and every averment contained in paragraphs 1
19
20
through 80 inclusive.
82. Claim 1 of the ’419 patent reads as follows:
21
1. A method for bleaching hair comprising:
22
(a) mixing a formulation comprising an active agent with a
23
bleaching formulation, wherein the active agent has the formula:
24
25
26
27
or salts thereof; and
(b) applying the mixture to the hair;
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wherein the active agent in the mixture is at a concentration
2
ranging from about 0.1% by weight to about 50% by weight; and
3
wherein the mixture does not contain a hair coloring agent.
4
5
(www.redken.com) describes one of the Accused Products as follows: “pH-Bonder is a unique
6
synergistic system that helps protect bonds and reduce breakage during technical services (such
7
as bleach and haircolor).” The instructions that accompany the pH-Bonder product describe how
8
to use it during bleaching treatment.
150 California Street, Suite 2200
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83. L'Oréal’s Accused Products are used during hair bleaching. Defendant Redken’s website
84. L'Oréal has produced YouTube training videos showing its employees using the
10
Accused Products during bleaching and encouraging others to do that same, including the pH-
11
Bonder YouTube video. Sean Goddard, a Global Redken Artist and Artistic Trainer, appears in
12
the pH-Bonder YouTube video.
13
85. In training hair care professionals how to use the pH-Bonder product, L'Oréal teaches
14
the “pH-Bonder regime” which the pH-Bonder YouTube video describes as “a complete
15
synergistic system” to “promote bond integrity” during lightening (the word that L'Oréal uses
16
instead of bleaching).
17
18
86. YouTube marketing videos uploaded by “L'Oréal Professionnel” show and describe how
to use Smartbond during bleaching treatments to maintain the integrity of the hair:
19
https://www.youtube.com/watch?v=SHaJTzM5xu8 (uploaded August 2, 2016);
20
https://www.youtube.com/watch?v=i1Ch8lzdjeI (uploaded August 2, 2016); and
21
https://www.youtube.com/watch?v=4ToTc4Q5x3I (uploaded August 24, 2016)
22
(collectively “Smartbond YouTube Videos”)
23
24
87. L'Oréal instructs hair care professionals to use the BondUltim8 “1” amplifier product
with lightener powder (bleach) as follows:
25
“STEP 1: AMPLIFIER
26
1. Mix your lightener as usual.
27
28
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2. Add 4ml of Step 1 per 15g of lightener powder to the mixture.
2
Use 8ml (1/4 oz.) of STEP 1 when mixing 30g or more of
3
lightener powder ….”
4
5
protecting additive solution.” L'Oréal directs the hair care professionals to mix 4 milliliters of
6
“bond protecting additive solution” with 15–30 grams of lightener (i.e., bleach), and to mix 8
7
milliliters of “Step 1 additive” with 30–60 grams of bleach.
8
89. The pH-Bonder YouTube video describes that the “#1 bond protecting additive” has
9
“maleic acid” that “acts as a magnet to attract and then remove ions from the lighteners that
150 California Street, Suite 2200
San Francisco, CA 94111
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Diamond McCarthy LLP
88. In the instructions for use that accompany pH-Bonder, the first step is to apply “#1 bond
interfere with weak [hair] bonds.” In this video, Mr. Goddard:
11
instructs hair care professionals to add and mix the #1 Bond Protecting Additive
12
directly into their lightening formula, and actually shows this being done; and
13
admits “of course” we put pH-Bonder in our lightener when lightening and color
14
treating a model’s hair, as shown on the video.
15
90. The pH-Bonder YouTube video instructs users to mix 4 milliliters of “bond protecting
16
additive solution” with 15–30 grams of powder lightener (i.e., bleach), or to mix 8 milliliters of
17
“bond protecting additive solution” with 30–60 grams of bleach.
18
91. In the instructions for use that accompany Smartbond Step 1, the first step is to apply the
19
Step 1 additive to the bleach. L'Oréal directs the hair care professionals to mix 4 milliliters of
20
“Step 1 additive” with 15–30 grams of lightener (i.e., bleach), and to mix 8 milliliters of “Step 1
21
additive” with 30–60 grams of bleach.
22
23
24
92. One of the Smartbond YouTube videos specifically instructs used to mix 30 grams of
powder lightener (bleach) with 8 milliliters of Step 1 additive.
93. The labeling provided with the Accused Products shows that they each have the
25
following ingredients: water, maleic acid, ethanolamine, CI 19140/Yellow 5, CI 14700/Red 4,
26
CI 42090/Blue 1.
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COMPLAINT-PATENT INFRINGEMENT,
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Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 22 of 27 Page ID #:22
1
2
Products express the amount of maleic acid present in these products as sold, and report
3
concentrations of less than or equal to 10.7 weight percent.
4
acid in the Accused Products is within a range from about 0.1% by weight to about 50% by
6
weight in the bleaching formulation applied to the hair as in claim 1 of the ’419 patent.
8
9
150 California Street, Suite 2200
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95. When used according to L'Oréal’s instructions and training, the concentration of maleic
5
7
Diamond McCarthy LLP
94. On information and belief, the Material Safety and Data Sheets for L'Oréal’s Accused
96. When used according to L'Oréal’s instructions and training, the mixture of the Accused
Products and the powder bleach does not contain a hair coloring agent.
97. When used according to L'Oréal’s instructions and training with at least some bleach to
10
developer mixing ratios of 1:1 or 1:1.5, the concentration of maleic acid in the Accused
11
Products is within a range from about 1 wt% to about 10 wt% in the bleaching formulation
12
applied to the hair as in claim 4 of the ’419 patent.
13
98. When used according to L'Oréal’s instructions and training with at least some bleach to
14
developer mixing ratios of 2:1, 1:1, 1:1.5, 1:2, and 1:4, the concentration of maleic acid in the
15
Accused Products is within a range from about 0.5 wt% to about 3 wt% in the bleaching
16
formulation applied to the hair as in claim 5 of the ’419 patent.
17
99. When used according to L'Oréal’s instructions and training, mixing of bleaching
18
formulation and the maleic acid additive occurs as a time of use and prior to application of the
19
mixture to the hair as in claim 10 of the ’419 patent.
20
100.
L'Oréal has directly infringed the ’419 patent, including at least claims 1, 4, 5,
21
and 10, and continues to do so. L'Oréal actively and knowingly infringed at least these claims of
22
the ’419 patent, either literally and/or under the doctrine of equivalents, by using, selling, or
23
offering to sell in the United States, and/or importing in the United States, the Accused Products
24
without authority from the patent holder. L'Oréal is liable for direct infringement of the
25
’419 patent pursuant to 35 U.S.C. § 271(a).
26
101.
L'Oréal also has actively induced others infringe the ’419 patent, including at
27
least claims 1, 4, 5, and 10, and continues to do so. L'Oréal had knowledge of the ’419 patent
28
prior to, or at least as of, the filing of this Complaint and had knowledge that use of the Accused
22
COMPLAINT-PATENT INFRINGEMENT,
FED. & CAL. FALSE ADVERTISING
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Products infringe, either literally and/or under the doctrine of equivalents, at least claims 1, 4, 5,
2
and 10 of the ’419 patent. L'Oréal has induced the direct infringement of the ’419 patent by
3
L'Oréal’s customers, resellers, retailers, and end users by intentionally directing them and
4
encouraging them to use, sell, and/or offer to sell within the United States and/or to import into
5
the United States the Accused Products. On information and belief, L'Oréal provides
6
instructions, video tutorials, and customer support to instruct its customers on how to use the
7
pH-Bonder product in an infringing manner. L'Oréal is liable for indirect infringement of the
8
’419 patent pursuant to 35 U.S.C. § 271(b).
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102.
Unless enjoined by this Court, L'Oréal will continue to infringe the ’419 patent
10
and to actively induced others to infringe the ’419 patent, and Olaplex will continue to suffer
11
irreparable harm for which there is no adequate remedy at law. Accordingly, Olaplex is entitled
12
to preliminary and permanent injunctive relief against such infringement pursuant to 35 U.S.C.
13
§ 283.
14
103.
As a direct and proximate result of L'Oréal’s infringement, Olaplex has been and
15
continues to be irreparably injured in its business and property rights, and is entitled to
16
appropriate relief and to recover damages for such injuries pursuant to 35 U.S.C. § 284 in an
17
amount to be proven at trial.
18
SECOND CAUSE OF ACTION
19
(Federal False Advertising, 15 U.S.C. § 1125(a))
20
21
22
104.
Plaintiffs incorporate by reference each and every averment contained in
paragraphs 1 through 103 inclusive.
105.
L'Oréal’s actions described above and specifically, without limitation, false or
23
misleading descriptions of fact, or false or misleading representations of fact regarding
24
Olaplex’s products constitute false advertising in violation of 15 U.S.C. § 1125(a).
25
26
106.
Consumers are likely to be deceived and mislead by L'Oréal’s description and
representations regarding Olaplex’s products.
27
107.
28
mislead.
L'Oréal knew or should have known that their statements were false or likely to
23
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FED. & CAL. FALSE ADVERTISING
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Olaplex has suffered damages in an amount to be determined at trial, and unless enjoined,
3
Olaplex will continue to suffer irreparable harm and damage to its business, reputation, and
4
goodwill.
109.
Olaplex is entitled to its costs and attorneys fees pursuant to 15 U.S.C. § 1117.
6
THIRD CAUSE OF ACTION
7
(Statutory False Advertising under California
8
Business and Professions Code § 17500 et seq.)
9
10
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150 California Street, Suite 2200
San Francisco, CA 94111
As an actual and proximate result of L'Oréal’s willful and intentional actions,
2
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Diamond McCarthy LLP
108.
12
13
110.
Plaintiffs incorporate by reference each and every averment contained in
paragraphs 1 through 109 inclusive.
111.
California law prohibits false advertising under Business and Professions Code
§ 17500 et seq.
112.
L'Oréal’s actions described above and specifically, without limitation, their
14
misrepresentations regarding Olaplex’s products constitute false and misleading representations
15
of material fact in commerce in connection with commercial advertising and promotion of
16
L'Oréal’s products, in violation of Business and Professions Code § 17500 et seq.
17
18
19
20
21
113.
Through their advertising and marketing, L'Oréal has made and continues to
make numerous false and misleading statements regarding Olaplex’s products.
114.
L'Oréal was aware, or by the exercise of reasonable care should have been aware,
that its commercial representations were untrue or misleading.
115.
As an actual and proximate result of L'Oréal’s willful and intentional actions,
22
Olaplex has suffered damages in an amount to be determined at trial, and unless enjoined,
23
Olaplex will continue to suffer irreparable harm and damage to its business, reputation, and
24
goodwill.
25
PRAYER FOR RELIEF
26
WHEREFORE, Liqwd and Olaplex pray for entry of judgment against L'Oréal, as
27
follows:
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FED. & CAL. FALSE ADVERTISING
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A. That L'Oréal is liable for infringement, and/or inducing the infringement of one or more
claims of the Asserted Patent, as alleged herein;
B. That L'Oréal has willfully infringed, and is willfully infringing one or more claims of
each of the Asserted Patent;
5
C. That L'Oréal (including their parents, subsidiaries, affiliates, successors, predecessors,
6
assigns, and the officers, directors, agents, servants, and employees of each of the
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foregoing, customers and/or licensees and those persons acting in concert or
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participation with any of them) is preliminarily and/or permanently enjoined and
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restrained under 35 U.S.C. § 283 from continued infringement, including but not limited
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to using, making, importing, offering for sale and/or selling products (such as the
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Accused Products) that infringe, and/or inducing the infringement of the Asserted Patent
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prior to its expiration, including any extensions;
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D. That Olaplex be awarded damages, in accordance with 35 U.S.C. § 284, adequate to
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compensate it for the infringement that has occurred, but in no event less than a
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reasonable royalty for the use made of the invention by L'Oréal, together with costs
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fixed by the Court;
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E. An accounting and/or supplemental damages for all damages occurring after any
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discovery cutoff and through the Court’s decision regarding the imposition of a
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permanent injunction;
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F. That this case is found to be an exceptional case, that Olaplex be awarded treble
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damages due to L'Oréal’s deliberate and willful conduct, and that L'Oréal is ordered to
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pay Olaplex’s costs of suit and attorneys’ fees as provided for by 35 U.S.C. § 285;
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G. That L'Oréal (including their parents, subsidiaries, affiliates, successors, predecessors,
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assigns, and the officers, directors, agents, servants, and employees of each of the
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foregoing, customers and/or licensees and those persons acting in concert or
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participation with any of them) is permanently enjoined and restrained under 15 U.S.C.
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§ 1051 et seq.; California Business and Professions Code § 17500 et seq. from directly
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or indirectly engaging in false advertising in connection with the promotion, advertising,
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COMPLAINT-PATENT INFRINGEMENT,
FED. & CAL. FALSE ADVERTISING
Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 26 of 27 Page ID #:26
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packaging, display, sale, offering for sale, manufacturer, production, circulation, or
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distribution of the L'Oréal Bond Builders by making false representations regarding
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Olaplex’s products;
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against Olaplex by false, deceptive, or misleading descriptions or representations of fact
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that misrepresent the nature, quality, and characteristics of Olaplex’s products;
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§ 17500 et seq. by engaging in false or misleading advertising regarding Olaplex’s
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products;
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150 California Street, Suite 2200
San Francisco, CA 94111
I. That L'Oréal be adjudged to have violated California Business and Professions Code
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Diamond McCarthy LLP
H. That L'Oréal be adjudged to have violated 15 U.S.C. § 1125(a) by unfairly competing
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J. That Olaplex be awarded damages pursuant to 15 U.S.C. § 1117(a), sufficient to
compensate it for the damage caused by L'Oréal’s false and misleading statements;
K. That Olaplex be awarded L'Oréal’s profits derived by reason of said acts, or as
determined by said accounting;
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L. That such damages and profits be trebled and awarded to Olaplex, and that it be awarded
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its costs, attorneys fees and expenses in this suit under 15 U.S.C. § 1117 as a result of
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L'Oréal’s willful, intentional, and deliberate acts in violation of the Lanham Act;
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M. That Olaplex be awarded damages in an amount sufficient to compensate it for the
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damages caused by L'Oréal’s false advertising under California Business and
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Professions Code § 17500 et seq;
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N. That Olaplex be granted prejudgment and post-judgment interest at the highest rates
allowed by law;
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O. That Olaplex be awarded its costs and expenses in this action; and
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P. The Olaplex be granted such other and further relief, in law and in equity, as the Court
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deems just and appropriate.
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COMPLAINT-PATENT INFRINGEMENT,
FED. & CAL. FALSE ADVERTISING
Case 2:16-cv-08708-R-AFM Document 1 Filed 11/22/16 Page 27 of 27 Page ID #:27
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DEMAND FOR JURY TRIAL
Pursuant to Fed. R. Civ. P. 38(b) and Local Rule 38-1, Olaplex demands a trial by jury
on all issues triable by jury.
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150 California Street, Suite 2200
San Francisco, CA 94111
Diamond McCarthy LLP
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DATED: November 22, 2016
DIAMOND McCARTHY LLP
By:
/s/ Matthew K. Blackburn
MATTHEW K. BLACKBURN (SBN 261959)
[email protected]
150 California Street, Suite 2200
San Francisco, CA 94111
Telephone: 415.692.5200
Facsimile: 415.293.6200
Attorneys for Plaintiffs
LIQWD, INC. / OLAPLEX LLC
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COMPLAINT-PATENT INFRINGEMENT,
FED. & CAL. FALSE ADVERTISING