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Marilyn Raia, SBN 72320 C. Todd Norris, SBN 181337 BULLIVANT HOUSER BAILEY PC 2 601 California Street, Suite 1800 San Francisco, CA 94108 3 Tel: (415) 352-2700 Fax: (415) 352-2701 E-mail: [email protected] 4 E-mail: [email protected] 5 Attorneys for Plaintiff BEATS ELECTRONICS, LLC 6 7 Robert W. Payne, Esq. (Bar No. 073901) Scott J. Allen, Esq. (Bar No. 178925) 8 Christopher J. Passarelli (Bar No. 241174) LARIV1ERE, GRUBMAN & PAYNE, LLP Post Office Box 3140 9 19 Upper Ragsdale Drive Monterey, CA 93942-3140 10 Tel: (831) 649-8800 Facsimile: (831) 649-8835 11 Attorneys for Plaintiff 12 MONSTER CABLE PRODUCTS, INC. Mc 13 IN THE UNITED STATES DISTRICT COURT 14 FOR THE NORTHERN DISTRICT OF CALIFORNIA 15 16 BEATS ELECTRONICS, LLC, a Delaware Limited Liability Company and MONSTER ) 17 CABLE PRODUCTS, INC., a California ) corporation, ) COMPLAINT FOR PATENT 18 ) INFRINGEMENT, INDUCEMENT Plaintiffs, ) OF PATENT INFRINGEMENT, 19 VS. ) TRADE DRESS INFRINGEMENT 20 ) AND UNFAIR COMPETITION, FANNY WANG HEADPHONE COMPANY, ) 21 INC., a California Corporation and TIMOTHY ) JURY TRIAL DEMANDED W. HICKMAN, an Individual ) 22 ) Defendants. ) 23 24 25 Plaintiff Beats Electronics, LLC ("Beats") and Plaintiff Monster Cable Products, Inc. 26 ("Monster") (collectively, "Plaintiffs"), by their attorneys, for their Complaint against Defendant 27 Fanny Wang Headphone Company, Inc. ("Fanny Wang") and Defendant Timothy W. Hickman 28 ("Hickman") (collectively, "Defendants") allege as follows:
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1 PARTIES 2 1. Plaintiff Beats is a limited liability company organized under the laws of 3 Delaware, with a principal place of business at 2200 Colorado Avenue, Santa Monica, 4 California, 90404. Beats is a world-class producer of cutting-edge audio equipment, including 5 its "Solo" and "Studio" headphones, both of which are protected by Beats' proprietary trade 6 dress — with its Studio headphone further protected under the U.S. Patent Law — and are the 7 subject of this action. 8 2. Plaintiff Monster is a corporation organized under the laws of California, with a 9 principal place of business at 455 Valley Drive, Brisbane, California, 94005. Monster is the 10 world's leading manufacturer of high performance cables that connect audio/visual components 11 for home, car and professional use. Among their many attributes and benefits, Monster's audio
12 cables increase the clarity, dynamics and power of the audio signals that travel through them. In 13 addition, Monster is the exclusive licensee and distributor of Beats' Studio Headphones. 14 3. According to its Website and upon information and belief, Defendant Fanny 15 Wang is a corporation with a principal place of business at 375 Diablo Road, Danville, 16 California 94526. Despite Defendants' assertions, Plaintiffs have performed their due diligence 17 but have been unable to confirm that Defendant Fanny Wang is a legal entity registered with the
18 any state's Secretary of State's Office. 19 4. Upon information and belief, Defendant Hickman is an individual, either 20 operating a business from, or residing at, 20 Highland Court, Danville, CA 94526. 21 5. There may be additional persons or entities liable for the activities which form the 22 basis for this Complaint. Plaintiffs will explore this on discovery and, if necessary, amend this 23 Complaint to add such persons or entities as parties. 24 NATURE OF THE ACTION 25 6. This Complaint is brought because of Defendants' on-going manufacture, 26 importation, use and/or sales of "Fanny Wang" Headphones, which are knock-offs of Beats' 27 world-famous "Studio" and "Solo" model headphones. As a result of these actions, Defendant 28 has: [i] willfully infringed Beats' United States Patent, Pat. No. D552,077, in violation of 35
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1 U.S.C. § 271(a); [ii] willfully induced others to infringe Beats' United States Patent in violation 2 of 35 U.S.C. § 271(b); [iii] willfully infringed Plaintiffs' trade dress and committed unfair 3 competition in violation of 15 U.S.C. § 1125(a); [iv] willfully diluted Plaintiffs' famous trade 4 dress in violation of 15 U.S.C. § 1125(c); [v] willfully diluted Plaintiffs' famous trade dress in 5 violation of California Trademark Dilution Act § 14330, et. seq.; [vi] willfully committed unfair 6 competition in violation of the California Unfair Practices Act, Cal. Bus. & Prof. Code § 17200 7 et. seq.; and [vii] willfully committed trade dress infringement and unfair competition in 8 violation of California common law, 9 JURISDICTION AND VENUE 10 7. This Court has subject matter jurisdiction under one or more of the following 11 statutes: 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1338 (patents and trademarks), and 28 12 U. S .C. § 1367 (supplemental jurisdiction). 13 8. Personal jurisdiction is proper in the Northern District of California under 28 14 U.S.C. § 1391(b) and (c) with respect to Defendants, because a substantial part of the events 15 giving rise to the claims occurred in this District. Upon information and belief', Defendants are 16 located within this District, conduct regular business within this District, and specifically have 17 marketed and continue to market its infringing headphones in this District. 18 9. Venue is proper under 28 U.S.C. § 1391 (a), (b) and (c), as well as 28 U.S.C. § 19 1400(b). 20 BACKGROUND AND FACTS RELATED TO THIS ACTION 21 10. Beats grew out of a collaboration between legendary artist and producer Andre 22 Young (professionally known as Dr. Dre) and Jimmy Iovine, Chairman of Interscope Geffen 23 A&M Records. Among its products, Beats has developed a new line of revolutionary 24 headphones with the capacity to reproduce the full spectrum of sound that musical artists and 25 producers hear with producing music. Among these revolutionary headphones are the Beats 26 Studio Headphones and the Beats Solo Headphones. Several copies of photographs of the Studio 27 Headphones are attached hereto as Exhibit A, and copies of photographs of the Solo Headphones 28 are attached hereto as Exhibit B.
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1 11. Indeed, Beats' has obtained patent protection for the design of its revolutionary 2 headphones, and owns U.S. Patent No. D552,077 (the "077 Patent"). A copy of the '077 Patent 3 is attached as Exhibit C. 4 12. Since their introduction, Beats' headphones have enjoyed tremendous sales. The 5 Studio Headphones have been featured with Dr. Dre in commercials for Dr. Pepper, and have 6 been endorsed in commercials by numerous perfauning artists, such as William Adams 7 (professionally known as Will.i.am). Moreover, through Plaintiffs' extensive sales and 8 promotion of the Beats headphones, consumers have come to associate the distinctive 9 appearance of Beats' Studio Headphones and Solo Headphones with a single source, Beats. 10 Accordingly, the distinctive appearance of both the Studio and Solo Design headphones 11 constitutes Beats' protectable, proprietary trade dress ("Beats' Trade Dress"). As a result, Beats' 12 Trade Dress, along with the valuable goodwill associated with both Beats' and Monsters' names 13 and their products, are among Plaintiffs' most valuable assets. 14 13. On December 9, 2010, Plaintiffs first became aware of the infringing Fanny Wang 15 headphones, which are being marketed on Defendants' website at
18 Francisco, CA on December 14, 2010. Copies of the Fanny Wang Website are attached hereto 19 as Exhibit D, and copies of the Product Launch Party leaflets are attached hereto as Exhibit E. 20 14. Upon information and belief, Defendant Fanny Wang manufactures, imports, 21 distributes and sells a line of headphones under the mark "Fanny Wang." Upon information and 22 belief, these headphones are specifically designed to infringe Beats' patent rights, and 23 simultaneously trade off of Beats' Trade Dress (described in detail below) and Plaintiffs' 24 goodwill in their products. Indeed, Fanny Wang's entire advertisement campaign appears to be a 25 direct assault on Beats' proprietary rights. Specifically, Fanny Wang's website includes multiple 26 statements such as, "add punch to the base line without artificially over doing it like so many 27 others in this category (a'hmm — Beats)". A side-by-side comparison of the Fanny Wang 28 headphones and Beats"077 Patent is attached hereto as Exhibit F.
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1 15. To make the Fanny Wang headphones, Fanny Wang slavishly copied the 2 distinctive product configuration of Beats' Solo Headphones, as well as Beats' Studio 3 Headphones.
4 16. Under the "about us" link, Defendants' Website states, in part, "The Fanny Wang 5 headphones takes the trend started by 'Beats by Dr Dre' [sic] to the next level in terms of 6 fashion, sound, and price. Consumer [sic] will be blown away at the sound quality which rivals 7 Beats by providing a forceful bass (without over doing it) while keeping a very clean sound. The 8 same sound engineer in China who designed the "Beats by Dr Dre" [sic] acoustics tackled the 9 Fanny Wang challenge to create a superior sound that compliments urban hip hop and provides
10 enough range to satisfy any modem consumer." Additionally, on December 9, 2010, Defendants
11 posted a video on the YouTub e web site, located at the 12
15 sound and put the sound on here [pointing to the Fanny Wang headphones]." Initial 16 investigation by Plaintiffs indicates that this "sound engineer" was previously employed by one
17 of Beats' vendors, and was involved with the development of the sound and Ltechnology used in 18 Plaintiffs' headphones. Due to his position, this engineer may have been privy to various 19 specifications, technology and other information Plaintiffs had deemed Confidential Information.
20 Further investigation may result in additional claims being brought against Defendants and this 21 engineer.
22 17. Based on information and belief, Defendants plan to display the infringing Fanny 23 Wang headphones at the Consumer Electronics Show in Las Vegas, Nevada, scheduled to occur 24 January 6-9, 2011. 25 /// 26 /// 27 /// 28
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CAUSES OF ACTION 1 2 COUNT I Patent Infringement 3 (35 U.S.C. § 271(a)) (All Defendants) 4 5 18. Plaintiffs reallege and incorporate herein the preceding paragraphs 1 — 17 of this 6 Complaint. 7 19. Beats is the owner by assignment of all the right, title and interest in the '077
8 Patent, entitled "Headphone," which was duly and legally issued by the United States Patent and 9 Trademark Office on October 2, 2007 from an application filed on June 13, 2006. 10 20. In violation of 35 U.S.C. § 271(a), Defendants are directly infringing the '077 11 Patent by making, using, importing, offering for sale, selling and/or marketing the Fanny Wang 12 Headphones.
13 21. Based on the near-identical similarity between the infringing Fanny Wang
14 Headphones and Beats' Studio Headphones, in addition to the numerous references to Beats on 15 the Fanny Wang website and other promotional materials distributed by Defendants, it is clear 16 that Defendants knowingly and intentionally copied Beats"077 Patent, and is willfully 17 infringing Plaintiffs' rights.
18 22. Further, based on information and belief, Defendants had actual knowledge that
19 their actions would infringe the '077 Patent. As a result, Defendants' infringement of the '077
20 Patent is willful. 21 23. This is an exceptional case within the meaning of 35 U.S.C. § 285, which 22 warrants reimbursement of Plaintiffs' reasonable attorneys' fees. 23 24. As a result of Defendants' aforesaid conduct, Plaintiffs have suffered substantial 24 damage and irreparable harm constituting an injury for which Plaintiffs have no adequate remedy
25 at law. Unless this Court enjoins Defendants' conduct, Plaintiffs will continue to suffer 26 irreparable harm.
27 ///
28
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COUNT II 1 Inducement of Patent Infringement 2 (35 U.S.C. § 271(b)) (All Defendants) 3 4 25. Plaintiffs reallege and incorporate herein the preceding paragraphs 1 — 24 of this 5 Complaint.
6 26. As stated above, Defendants are directly infringing the '077 Patent by making, 7 using, offering for sale, selling and/or marketing the Fanny Wang Headphones in violation of 35
8 U.S.C. § 271(a). Additionally, any individual who purchases the Fanny Wang Headphones from 9 Defendants is likewise infringing the '077 Patent in violation of 35 U.S.C. § 271(a). Defendants 10 are actively inducing such infringing activity by seeking retailers and consumers for the Fanny 11 Wang Headphones through the Fanny Wang Website with knowledge and intent that such
12 retailers and their customers directly infringe the '077 Patent, in violation of 35 U.S.C. § 271(b). 13 27. Upon information and belief, Defendants are actively inducing infringing activity 14 by Virgin America Airlines by seeking to offer their infringing Fanny Wang Headphones in the 15 first class cabin of Virgin America flights. 16 28. Based on information and belief, Defendants had actual knowledge that their
17 actions would infringe the '077 Patent, and that actively inducing retailers and consumers to 18 purchase the Fanny Wang Headphones would cause those retailers and consumers to infringe the
19 '077 Patent. As a result, Defendants' inducement of infringement of the '077 Patent is willful. 20 29. This is an exceptional case within the meaning of 35 U.S.C. § 285, which 21 warrants reimbursement of Plaintiffs' reasonable attorneys' fees. 22 30. As a result of Defendants' aforesaid conduct, Plaintiffs have suffered substantial
23 damage and irreparable harm constituting an injury for which Plaintiffs have no adequate remedy 24 at law. Unless this Court enjoins Defendants' conduct, Plaintiffs will continue to suffer 25 irreparable harm. 26 // 27 /// 28 ///
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COUNT III 1 Trade Dress Infringement and Unfair Competition 2 (Section 43(a) of the Lanham Act: 15 U.S.C. §1125(a)) (All Defendants) 3 31. Plaintiffs reallege and incorporate herein the preceding paragraphs 1 — 30 of this 4 Complaint. 5 32. As set forth above, Beats has owned a valid and protectable interest in both its 6 Studio and Solo Headphones since before the acts of Defendants complained of herein. Both the 7 Studio and Solo Headphones are inherently distinctive. In addition, as a result of Plaintiffs' 8 continuous and extensive promotion and use of the Studio and Solo Headphones in interstate 9 commerce, Beats' Trade Dress also has developed secondary meaning. 10 33. Defendants' conduct is causing, and is likely to continue to cause in the future, 11 confusion, mistake or deception as to the affiliation, connection or association of Defendants 12 with Plaintiffs, and as to the origin, sponsorship or approval of Defendants and their goods and 13 services, in violation of Section 43 of the Lanham Act, 15 U.S.C. § 1125(a)(1). Defendants' 14 Fanny Wang Website employs the same black and red colors that Beats uses on its website at 15
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COUNT IV Trademark Dilution (15 U.S.C. § 1125(c)) (All Defendants) 37. Plaintiffs reallege and incorporate herein the preceding paragraphs 1 — 36 of this Complaint, 38. As set forth above, Beats has owned a valid and protectable interest in both its Studio and Solo Headphones since before the acts of Defendants complained of herein. Both the Studio and Solo Headphones are inherently distinctive. In addition, as a result of Plaintiffs' continuous and extensive promotion and use of the Studio and Solo Headphones in interstate commerce, Beats' Trade Dress also has developed secondary meaning. 39. Due to Plaintiffs' expansive advertising campaign and other efforts, Plaintiffs' trade dress is widely recognized by the general consuming public as a source of Plaintiffs' goods. Plaintiffs' headphones are advertised and sold throughout the United States, and have been advertised and publicized by both Plaintiffs' and third parties. Indeed, AdvertisingAge named Beats one of the hottest brands in America in 2010. Attached as Exhibit G is a printout from the AdvertisingAge Website. As such Plaintiffs' trade dress is a famous mark, and became famous before Defendants began selling or advertising their infringing headphones, 40. Defendants' conduct is causing, and is likely to continue to cause in the future, dilution by blurring and dilution by tarnishment of Plaintiffs famous trade dress, in violation of the Lanham Act, 15 U.S.C. § 1125(c). 41. Defendants' unauthorized and tortious conduct also has deprived and will continue to deprive Beats of the ability to control the consumer perception of its goods marketed under Beats' famous trade dress, placing the valuable reputation and goodwill of Beats in the hands of Defendants, over whom Beats has no control, 42. Defendants' reckless disregards for the confusion caused by their acts renders this case exceptional under 15 U.S.C. § 1117(a). 43. As a result of Defendants' aforesaid conduct, Plaintiffs have suffered substantial damage and irreparable harm constituting an injury for which Plaintiffs have no adequate remedy
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1 at law. Unless this Court enjoins Defendants' conduct, Plaintiffs will continue to suffer 2 irreparable harm.
3 COUNT V 4 Violation of California Trademark Dilution Act (Cal. Bus. & Prof. Code § 14330, et. seq.) 5 (All Defendants) 6 44. Plaintiffs reallege and incorporate herein the preceding paragraphs 1 — 43 of this 7 Complaint.
8 45. As set forth above, Beats has owned a valid and protectable interest in both its 9 Studio and Solo Headphones since before the acts of Defendants complained of herein. Both of 10 Studio and Solo Headphones are inherently distinctive. In addition, as a result of Plaintiffs' 11 continuous and extensive promotion and use of the Studio and Solo Headphones in interstate 12 commerce, Beats' Trade Dress also has developed secondary meaning.
13 46. Due to Plaintiffs' expansive advertising campaign and other efforts, Plaintiffs' 14 trade dress is widely recognized in California and throughout the United States by the general 15 consuming public as a source of Plaintiffs' goods. Plaintiffs' headphones are advertised in 16 California and throughout the United States, and have been advertised and publicized by both
17 Plaintiffs and third parties. As such, Plaintiffs' trade dress is a famous mark, and became famous 18 before Defendants began selling or advertising their infringing headphones.
19 47. Defendants' conduct is causing, and is likely to continue to cause in the future, 20 injury to the business reputation of Plaintiffs, and dilution of the distinctive quality of Beats
21 famous trade dress in violation of Cal. Bus. & Prof. Code § 14330, et. seq. 22 48. Defendants' unauthorized and tortious conduct also has deprived and will
23 continue to deprive Beats of the ability to control the consumer perception of its goods marketed
24 under Beats' famous trade dress, placing the valuable reputation and goodwill of Beats in the 25 hands of Defendants, over whom Beats has no control. 26 49. As a result of Defendants' aforesaid conduct, Plaintiffs have suffered substantial 27 damage and irreparable harm constituting an injury for which Plaintiffs have no adequate remedy 28
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1 at law. Unless this Court enjoins Defendants' conduct, Plaintiffs will continue to suffer 2 irreparable harm.
3 COUNT VI 4 Violation of California Unfair Practices Act (Cal. Bus. & Prof. Code § 17200 et. seq.) 5 (All Defendants) 6 50. Plaintiffs reallege and incorporate herein the preceding paragraphs 1 — 49 of this 7 Complaint. 8 51. Defendants' actions complained of herein constitute unfair trade practices in 9 violation of Cal. Bus. & Prof. Code § 17200 in that they are likely to cause confusion or 10 misunderstanding as to source, sponsorship of approval of Defendants' respective goods and 11 services. Defendants' deceptive conduct also creates a likelihood of confusion as to the
12 affiliation, connection or association of its goods with Beats' well-known Studio and Solo 13 Headphones. Such confusion damages the goodwill associated with Beats' and Monsters' 14 respective names and products. 15 52. Defendants had actual notice of Beats' ownership of and rights in its Trade Dress
16 before Defendants' first use of the confusingly similar Fanny Wang Headphones. Accordingly,
17 Defendants have willfully engaged in deceptive trade practices in violation of California law. 18 53. As a result of Defendants' willful and malicious conduct, Plaintiffs are likely to 19 suffer, and have in fact already suffered, actual injury in fact and irreparable harm for which 20 Plaintiffs have no adequate remedy at law. Unless this Court enjoins Defendants' conduct, 21 Plaintiffs will continue to suffer irreparable harm
22 COUNT VII California Common Law Trade Dress Infringement and Unfair Competition 23 (All Defendants) 24 54. Plaintiffs reallege and incorporate herein the preceding paragraphs 1 — 53 of this 25 Complaint. 26 55. Plaintiffs have used and promoted the Studio Headphones and the Solo 27 Headphones within this State prior to Defendants' infringing conduct complained of herein, and 28
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1 Plaintiffs possess superior common law rights in both the Studio and the Solo Headphones under 2 the common law of the State of California. 3 56. Defendants' unauthorized promotion, use and sale of the Fanny Wang
4 Headphones are likely to cause confusion among consumers and existing and prospective
5 customers. 6 57. By virtue of their actions described herein, Defendants have infringed upon Beats' 7 Trade Dress, and have improperly traded on the goodwill associated therewith, in violation of the 8 common law of this State.
9 58. As a result of Defendants' aforesaid conduct, Plaintiffs have suffered substantial 10 damage and irreparable harm constituting an injury for which Plaintiffs have no adequate remedy 11 at law. Unless this Court enjoins Defendants' conduct, Plaintiffs will continue to suffer 12 irreparable harm. 13 PRAYER FOR RELIEF 14 WHEREFORE, Plaintiffs request that the Court enter judgment in their favor and against 15 Defendants as follows:
16 A. Judgment be entered that Defendants have infringed the claim of the '077 Patent 17 directly, either literally or under the doctrine of equivalents, and/or indirectly; 18 B. Judgment be entered that Defendants have induced infringement of the claim of 19 the '077 Patent; 20 C. Judgment be entered that Defendants have infringed Beats' Trade Dress pursuant
21 to 15 U.S.C. § 1125, and in violation of California common law, and have committed acts of 22 unfair competition in violation of 15 U.S.C. § 1125 and California common law; 23 D. Judgment be entered that Defendants have diluted Beats' famous Trade Dress 24 pursuant to 15 U.S.C. § 1125 and Cal. Bus. & Prof. Code § 14330, et. seq.; 25 E. Judgment be entered preliminarily and permanently enjoining Defendants and
26 each of their respective officers, members, employees, owners, managers, agents, attorneys,
27 successors, servants, subsidiaries, related entities, licensees, and assigns, and all persons acting in 28 concert with any of the foregoing, from:
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i. Any further acts of infringement or inducement of infringement of the 2 '077 Patent; 3 selling, offering for sale, holding for sale, importing, advertising, or promoting any merchandise, goods, or services using trade dress that 4 infringes Beats' Trade Dress or any trade dress confusingly similar thereto; or 5 doing any other act or thing that is likely to induce the belief that the 6 Defendants' goods or services are in some way cormected with Plaintiffs' 7 goods or their respective businesses;
8 F. Judgment be entered that this case is an exceptional case under 35 U.S.C. § 285; 9 G. Defendants be held jointly and severally liable and ordered to account for and pay 10 to Plaintiffs: 11 i. damages adequate to compensate Plaintiffs for Defendants' infringement 12 of the '077 Patent in an amount no less than a reasonable royalty pursuant to 35 U.S.C. § 284; 13 Defendants' respective total profits pursuant to 35 U.S.C. § 289; 14 15 treble damages pursuant to 35 U.S.C. § 284 based on Defendants' willful infringement of the '077 Patent, and pursuant to 15 U.S.C. § 1117(a) 16 based on Defendants' willful infringement of the Studio Trade Dress; 17 iv. all gains, benefits, and advantages derived from the Defendants' wrongful use, misappropriation, and infringement of the Studio Trade Dress; 18 v. all losses and damages, including lost profits and costs for corrective 19 advertising, suffered by Plaintiffs as a result of the Defendants' wrongful 20 use and infringement of Beats' Trade Dress, including prejudgment interest and costs pursuant to 15 U.S.C. § 1117; 21 vi. Plaintiffs' reasonable attorneys' fees under 35 U.S.C. § 285 and 15 U.S.C. 22 § 1117(a); and 23 vii. Plaintiffs' pre-judgment and post-judgment interest and costs pursuant to 35 U.S.C. § 284 and 15 U.S.C. § 1117(a); 24
25 H. Requiring Defendants to deliver to Plaintiffs for destruction all Fanny Wang 26 Headphones and any other products or other articles in their possession bearing Beats' Trade 27 Dress, or any reproduction, counterfeit, copy or colorable imitation thereof, and all plates, molds, 28 matrices, screens or other means of making the same; and, that Defendants be required to recall
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all Fanny Wang Headphones and any other products bearing Beats' Trade Dress from their 2 customers and refund any monies paid for such products to their customers; 3 I. Requiring Defendants to deliver to Plaintiffs for destruction any and all stationery, 4 cirOulars, catalogs, charts, brochures, advertising, labels, packages, signs, and all other material 5 in their possession or under their control which depict the Fanny Wang Headphones or any other 6 infringing trade dress or any trade dress confusingly similar thereto; 7 J. Declaring that Defendants' actions complained of above constitute a violation of
8 the California Unfair Practices Act, Cal. Bus. & Prof. Code § 17200 et, seg., and enjoining 9 Defendants from continuing such acts; 10 K. Declaring that Defendants' actions complained of above constitute a violation of
11 California conunon law trade dress infringement and unfair competition and enjoining 12 Defendants from continuing such acts; and 13 L. Granting Plaintiffs damages and such other and future relief as this Court deems 14 just and proper. 15 PLAINTIFFS DEMAND A JURY TRIAL ON ALL ISSUES. 16 Respectfully Submitted, 17 DATED: December 13, 2010 18 19 Manl Raia C. Todd Norris 20 Attorneys for Plaintiff BEATS ELECTRONICS, LLC, 21 72 22 DATED: December 13, 2010 By: (--1 23 Robert W. Payne Scott J. Allen 24 Christopher T. Passarelli 25 Attorneys for Plaintiff 26 MONSTER CABLE PRODUCTS, INC. 27 28 12986743.1
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EXHIBIT A Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page16 of 51 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page17 of 51
EXHIBIT B Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page18 of 51 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page19 of 51 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page20 of 51 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page21 of 51
EXHIBIT C
Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page22 of 51 11111111111111111.11111111111111,1111,1111111111111111111111111111
• (12) United States Design Patent (10) Patent No.: • US D552,077 S Brunner et al. (45) Date of Patent: ** Oct. 2, 2007
(54) HEADPHONE FIG. 3 is a back view of the headphone illustrated in FIG. 1, according to one embodiment of the present invention; (76) Inventors: Robert Brunner, 642 Carolina St., San Francisco, CA (US) 94107; Francois FIG. 4 is a left side view of the headphone illustrated in FIG. Nguyen, 1830 Ellis St. #C, San 1, according to one embodiment of the present invention; Francisco, CA (US) 94115 FIG. 5 is a right side view of the headphone illustrated lit (**) FIG. 1, according to one embodiment of the present inven- Term: 14 Years tion; (21) Appl. No.: 29/261,443 FIG. 6 is a top view of the headphone illustrated in FIG. 1, according to one embodiment of the present invention; (22) Filed: Jun. 13, 2006 FIG. 7 is a bottom view of the headphone illustrated in FIG. (51) LOC (8) Cl. 14-01 1, according to one embodiment of the present invention; (52) U.S. Cl. D14/205 FIG. 8 is a perspective view of a headphone, according to (58) Field of Classification Search D141188, another embodiment of the present invention; D14/192, 205-206, 223; 2/209; 181/129-130; FIG. 9 is a front view of the headphone illustrated in FIG. 379/430-431; 381/379, 380, 383, 371, 382; 24/3.1; D29/112 8, according to another embodiment of the present inven- See application file for complete search history. tion; FIG. 10 is a back view of the headphone illustrated in FIG. (56) References Cited 8, according to another embodiment of the present inven- U.S. PATENT DOCUMENTS tion; 3,104,398 A * 9/1963 Palmaer 2/209 FIG. 11 is a left side view of the headphone illustrated in FIG. 8, according to another embodiment of the present (Continued) invention; Primary Examiner—Paula A. Greene FIG. 12 is a right side view of the headphone illustrated in (74) Attorney, Agent, or Finn—Dergosits & Noah LLP FIG. 8, according to another embodiment of the present invention; (57) CLAM FIG. 13 is a top view of the headphone illustrated in FIG. 8, The ornamental design for headphone, as shown. according to another embodiment of the present invention; and, DESCRIPTION FIG. 14 is a bottom view of the headphone illustrate d in FIG. FIG, 1 is a perspective view of a headphone, according to 8, according to another embodiment of the present inven- one embodiment of the present invention; tion. • FIG. 2 is a front view of the headphone illustrated in FIG. 1, according to one embodiment of the Present invention; 1 Claim, 8 Drawing Sheets
• Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page23 of 51
US D552,077 S . Page 2
U.S. PATENT DOCUMENTS 6,449,806 Bl* 9/2002 Engelhard et aL ' 24/3.1 6,654,966 B2* 12/2003 Rolla 21209 4,173,7 15 A * 1111979 Gosman 381/382 D484,868 S * 1/2004 Suzuki D14/205 D313,092 S * 12/1990 Nilsson D29/112 D532,407 S * 11/2006 Motoishi DI4/205 D420,3 56 S * 2/2000 Suzuki D14/205 6,081,604 A * 6/2000 Hikichi et al. 381/371 D457,512 S * 5/2002 Yoneda D14/205 * cited by examiner Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page24 of 51
U.S. Patent Oct. 2, 2007 Sheet 1 of 8 US D552,077 S
FIG. 1 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page25 of 51
U.S. Patent Oct. 2, 2007 Sheet 2 of 8 US D552,077 S
FIG. 2
FIG. 3 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page26 of 51
U.S. Patent Oct. 2, 2007 Sheet 3 of 8 US D552,077 S
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FIG. 4
FIG 5 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page27 of 51
U. S P at ent Oct. 2,2007 Sheet 4 of 8 US D552,077 S
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FIG. 7 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page28 of 51
U.S. Patent Oct; 2, 2007 Sheet 5 of 8 US D552,077 S
FIG. 8 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page29 of 51
U.S. Patent Oct. 2, 2007 Sheet 6 of 8 US D552,077 S
FIG. 9
FIG. 10 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page30 of 51
U.S. Patent Oct. 2, 2007 Sheet 7 of 8 US D552,077 S
FIG. 11
FIG. 12
Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page31 of 51
U.S. P atent Oct. 2, 2007 Sheet 8 of 8 US D552,077 S
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FIG 13
FIG. 14 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page32 of 51
EXHIBIT D Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page33 of 51
Welcome to Fennywang.com
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INCADMIONC. cu. PRO Du Crs CONTACT SHOPPING CART
The Fanny Wang headphones takes the trend started by Seals by Or Diet to the mid level in terms of fashion, sound, and price, Consumer will he blown away at the sound 'quality which ovals Bots by pnoviding a forceful bass (without over doing A) while keeping a very clean sound. The same sound tiVineor in China who designed many of the ultra high-e.nd headphone acoustics' tackled the Farm/ Wan0 challenge to creete a superior seund that compliments urban hip hop and provides enough range to satisfy any modern consumer.
The boom of the headphone industry is lead by fashion and Fanny Wang Is design from the ground up to grew the covers of COSMO. and Vogue. Headphones are the most visible accessory you wear and Fanny Wangs make a statement which are sure to be the hottest must have accessory starting this Winter. You want beautiful music . look the part - stand out from the crowd - rock your wangs. Fanny Wang
Who is Fanny Wang? Fanny la an iconic representation of the merging_ of technoiogy and fashion. No where is. tins More prevalent than the big cities in China where faShion trends are emerging as fast as NYC or LA, Is Fanny real - in our minCis yes, but she's beg to be thought of as a seXv Betty ernekqr , In6nie, Strand,
Adam has been a design force in Silicon Valley for the last to n 1. Fears. His designs has Crannd the shelves ot the APPle Store to tailors in 30 different countries. David iikes to rock it old school with music ranging from Black Eyed Peas to Keith Urban. David% initial design goal was to build something that was beautiful, unique, and sounded as good as the competition. 0,,,quickly figurodput that we can blow the competition aw ram g sou d.
Tim Hickman has lead different Investment groups to &did world class brands in Silicon Valley ler the last ten Years. He Cat teak' excited when he saw the merging offashion and technology in the headphone space and iEs correlated growth esPlosion. TiM LOVES music and tikes to rock it up and down and all the way around. From Flo ride to Kid Rock to Beastie Boys he appreciates a strong back beat and headphone that let% you hear ail the saund (not lust the base!)
Chief Sound Wangster
TC, our main man located at our China HQ, has been designing preniium audio solutions for 20 years. His expertise comes from designing the right enclosure and componenta to create a signature sound. He knows how to got the most insane sound possible and has helped us craft our signature sound!
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Welcome to Fannyvrong.com
01,41. Till
Beats by D, Gra is a trade .1 tit of Monster Cable arid is not aeeocjlcd affiliated with the Fanny Wang Hem:phone Company • 44;g4.1a4c,. i4::,4ir.V;:r. 'Shop Join tiui NI-ailing List Holm imago Gallery Join Our maihnu !lit for the latest news and ()Nerd? About Us Return Policy Join Contaci Us Pi ivacy PrAlcy Reseller Infurndson Produo Catamg
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IL ADM1CINC OLI. wROOUOT GDNTAC I ABOUT OIRLZ SLOG NEWS
These on-ear ultra menourn heatlphoneS are 'tuned to deliver thumbing base (rVihotit over Powenna) with crystal Osier triads and highs, Fanny W@ng's,Pn-Ear headphone:1 are designed to celebrate the beauty of . music on the outSide sis Wen as the inside. These Phone capable on- ear headphones Mims you to tails Wilds -free and control music with a click Of a hellon. The konlp Fanny Design Featuree a tri-foad design withiefordy aluminum hinges, a remoyeble cord, and integrated Dueled: which allows you to easily Share yolk Music.
Cuskiell R4440 Aluminum Plated DriYers Bent-in mio and. Mamie ftlr.easy access to Phone control Backed by a 3, year warranty
REVIEWS: COLOR CI-IOICES:
GLIDE TD ENLARGE
TECH SPECS REVIEWS WHERE TO BUY WARRANTY COMPARE
OUR SOUND
Beautiful sciunds begins on the outside Ourtetthin design Is not iust hemtptione bale, Our exterior design and SolA chambers lielp Lelesm tha cdsp sound end punchy deliVering (hat Me west wants you to hear. Our 411mm AluMna Platod matched &Wars add punch to the base lire WithOul'artificiallY ifinreKdoingtt rike sd many others in lhls category (Amin Boal3) , Yon want healthful music , loot: the part - .stead out born the crowd - rock your wangs.
IPH ONE+ REMOTE
Complete access and versaulity. You want headphones that can do II all, and the Fanny Wano On-E-r Mis + Remote give you the freedom to 'both listen le .miteic.and yew veicemad luith an irrpmsevely svelte, high• 'piton-rung package,. AnsWerfand a call, play/po.isoletclp songs, and adjust the volume with incredible ease,
TRI-FOLD DESIGN Perfect for the international Jetsettei, Reims connoiaseur, on-Me-no audio engineer, *and professorial DO. The sturdy, ter•fold design mikes Fanny Wang headphones easy to stash, stow, and most importantly, Protect,
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PA C KA GING
4eloa1ching and funotionat. You can't miss noticing Fanny Wang's heaciphonea_unbass, of course, they're sold out. Th incitudilliy alifaciino Fanny Wang headphone package contains an bnprosaive array of tools to enhance ying- audio expurienoe. if this much attention tO,ttie box im.yresoWri yon(vnit unol you son vehat's inoiao
Shop Join Our Mailing List Homo Pr.ago GailetY J,Difl Oor *ling ha; tor .tholeguit n ews nnil ciders , . About LA FieWoi ppl:cy • Jail% Contact lls. . Pripaq.PollOY Fei..c,•, -d.oritiformationProducfCalatog
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Welcome to Fannywang, corn
EAUIMILIP.C. MO.
. . f!Fto Oue Ts CONTACT ASOU T IRLZ SL OG NEWS SHOPPING CART
Designed Mr the Stodie musician Or serious music connokeseur, these high-end over-ear headphones are tuned to fisher thumbing base (without over powering) with crystal clear snide and highs. Fanny Wang's On-bar headphones are designed to celebrate the 'beauty of musle on the outside as :veil as Me inside. Our noise cancelling technology removes nay interfering sounds leaving you with perfect clarify of your =sic. The iconic Fanny Design Features a tri-rokt deegri wilh sturdy aluminum hinges, a removable card, and Integrated DuaJacli which • t.tPitt You tO easily share your music.
Neodyne Titanium Coated 6omm &tact' deliver Lairs premium sound Over-ear muffs thal erase environmental interference Dun Jack (in-line cable splitter) lets friends tune in to rur audio EradAd ix/ a 3 year warranty
CLICK FOR Gr; rA‘I.q
REVIEWS: COLOR CHOICES:
Cube:TO ENLARGE
TECH SPECS REVIEWS WHERE TO BUY WARRANTY COMPARE
OUR SOUND
emdeful sounds begins on the outside - Our iconic design is not iUst headphone We. Out eiderior design and sound chambers help-deliver the 'Crisp sound and Punchy delivering filet ihe artist wants You to haer• Our 40rnrn Alumina Plated matched drivers add punch to (he base line without artifidally over doing n iihe so many others in this category ie'hrnin - pants) . You want latmutrul musio - loots the part - stand oul from the croWd 7 rock yeer weegs.
JACK. - - IThe firat eaglet media headplinnee. Nt9sio Was htSaSt to.b9 dhart4 and' mth Fenny Wang's Duo -lads. We easy le invite YOUridendis to tune in to eorneS standard Vrilh every Set Of your bests, The Due Jack Fanny- Wang On-Ear Headphones.
TRI-FOLD DESIGN
Perfect for the international jetsetter, ITunes cOnnoisseur, earbtheio audio enginees; end proresakmal DJ. The sturdy, in-fold design makes Fanny Wang headphones easy to stash, slow, and most Importantly. protect
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Welcome to Fannywang.com
'
Eva-catching anti functional. You can't miss noticing Fanny Wang's hoadphoneo. unless. ol course, troy'ro sold out. The mcreMply attractive, , Fanny Wan9 headphone package contains art impresstve orray of tools. to onYcince your audio espenonce. If this much attention to the box Imprea.hus you. wait unta yotr see what's amide • ,. . '1,0**".0841.tis Shop Join Our Mailing List Jma Cm marlins) Ilst toi. the Wiest Home Imago Gallery . , nws and Micas! About Us Rttittrit Policy Join Contact Us Frivacy Policy 111011111111111111111111111111 Resdlor Information PrOdtict Catalog
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nt.AutouuNn Co.' PRODUCTS CONTAC T AS PUT OURLX LUO NgArirs SHDPtNI3 CART
Fanny Wang Glrla help promote the Fenny Wang Headphones in Me clubs and on the SUMAS. We pay our Fanny Wang Girle hourly and and you can potentially earn hundreds mere per night by selling Fanny Wang Headphones at the clubs. Another deal we offer is for you to buy a pair of Mg headphones) send us pictures of you or your friends wealing tho headphones in thre or more different clubs and we will refund you for your purchase! Send us your photos at [email protected] of you Ving your warp. •
BECOME THE NEXT ,ti., GIRL.
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HAVE THE FANlll GIRLZ VISIT.
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COE K TO ENLARGE
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Welcome to Fannywang.com
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uir-ACIPIMPNII co. PRODUCTS CONIACT ASCU G1RLZ BLDG IIK.VNIS
ON EAR
. . These on-ear premium headphones are tuned to deliver natural, thumping base with crystal clear snide and highs. Just like the artist intended, Fanny Wang's Pa Ear Headphones are designed to celebrate the beauty of music on Uto ouWale as well as.lhe inside. The iconic Wang design features a duo-fold design with sturdy aluminum hinges, a rennovaltie cord, and integrated DuoJacit which allows you to easily share your music.
CISnatildeoigtoolrantePd'aDireudo Ald:clin ntia,n rinaell'odaWile6YsePlsitier) lets fr nds tune in you ; Pro:style, na tangle cord
Ships Doc. 27th 2010. Pve Ohdor Mewl
MICK FOR VAA
TECH SPECS REVIEWS WHERE TO SUY WARRANTY COMPARE
Beautiful seunds begins on the outside Our iconic. design Is not just headPhilno fare- Ocur e'herlef gesign end soUnd onarnbers help deliver Me crisp sound and punchy delivering that the artist wants you to hear, Our afitern Alumiva Plated matched drivers add punch to the base line without adificially over doing it like so many others in this category (ahnlln - DeatO You want beautiful music - took the Part stand out WM the drowd - rock your wangs.
DLIO JACK
The hrst social media headphones. Music was meant to be shared, iald with Fanny Wang's Duo Jack, it's easy to invite your friends to tune in to yolif beats, The DuO.Jacit comes stendwd tvith every set of Fanny Wang gn-Ear Headphones.
TRI-FOLD DESIGN
Perfect for the irilleretdiehal jetsetter, (tunes connoisseur, 09-the-go otidro.eirgineer. and Professional UJ. Theo sturdy, tri-fold design ninyes Fanny.Wang headphones easY to stash, sloyi, and most importantty. protect.
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PACKAGING
Eye.catchiny end tnnctionat. You caret *nes nottelog Fanny Wards hfloviPtigneL.Alineas, Of course, triey're sold out, The Incredibly attractive Fenny Wahg headphone neittage contains arr unPiessIve orray or tools to enhance your audio expenenco. of this much attention te the box_ laliaaasas you, Walt until you sea what's Mottle
Shop Join Our Mailing List Horne linage Gallery Join .Oto snitifing list for the latest About Os 13eturn stows tad OffOw Contact Us Privacy POlicy. 1111111111111111111=111 it Reseda!' Informdtion Product Catalog
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•1.11.10)110Ne Va. SHOPPiNG CART
ON EAR WANG'S ON EAR !PHONE+ REMOTE NIG'S 'These en-ear ptemlum headphones are tuned le deliver !natural, thumping base Oh orystal deer mids aMi highs. dust like the artist intended. Fanny Wang's Pn Ear Theaerininar prenliun headparmes are 'tuned In delivEl Headphones are designed, to eelebrale (he bea... lbuoibing base (vOinut ever Kenveing) with crystal dear raids, tali:thighs, Fanny Wang's 51n-4er headphopes ore designed. . to celebrate Me beauty of music...
OVER EAR-NOISE CANCELLING wA r
Designed for the Studio musician or serious rens:C connois.eur, these high-end over-ear headphones are tuned to deliver thumbing base {without over Powenng) with crystal sinar Inids and If9hs. Fanny Wang's
Shop 40in Our Mailing List. Home Imago QuIlory Jpitl Our MOON liSt.liqr the tritest nueis 'mut nffurs!' AbOtit,Us Return Policir
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Welcome to Fannywang.com
Contact Us Privacy Policy IMEiN1101E-111;PI RaseIler Information Product Catalog
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Fanny Wang I Welcome to FannyWang.com I Premium Headphones
RODUCTS CONTACT ABOUT . GIRLZ SLOG NEWS
ABOUT
Tu., Duo JA LrL 110 y oat
yew ltetCts TIP pluc
Duo ...I* shale irtlitir.: LT
ALINCN EVENT @ W HOTEL
:1011 INTERNATIONAL GES . Janowy CA, nOi t in Las \tog= . iLounge area North Hall, Booth:5238 "4:
FEATURED ON EAR OVER EAR NOISE CANCEL These on-ear premium Designed tor the Studio headphones are tuned to musician or senulla music deliver natural, thumping base connoisseur. these high-end with crystal clear mids and over-ear headphones are highs. Just like the artist tuned to deliver thumbing intended. Fantle. base (without over.,
Fanny Wenn vs. Beats by Dr. Reseller Tnaniries We want reviewers1 Dre FrIr ■ ./ Unr,o F;rrea..r. Interested in reviewing our products and F.:100Y e..ror,',,r; crormoor haarrp , ar,a OA, arra il11t.1 ,1.11)..VA ■ sharing your thoughts with the world',' turai:d to Ooliver a n.,tiiw thosrnog Oa.e ` 11',4,..10 Thu. cryrz:ol ca:ar 11,15atitilli94. You ma r11.00,41rilroation ouni Shoot us an entail for more tnfermation thr able to 515r..0 rho Fray Oa a,;rat about our otters tor reviewers. 0tvotiarl 0 tu..: rapr0;.notel.. c-o• c■:a Email ReatiowstilFaimyWang.cam ano - phr.la -rao;r: • •
- ICy On Ii pair or Fanny Mat hearipllaries to -
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Fanny Wang I Wekome to FannyWang.com Premium Headphones
Shop Join Oor Mailing List Honig Imago Gallery .1e'n Our 1m:tiling lad for the I0E15.1 rows and cdforst • About Lb Return Pdicy Join Contact Us Privacy Po)Icy RosaIler Information Product Calatoo.
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EXHIBIT E Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page47 of 51
When: Tuescay December 1 4t fi Where: Lounge in W otel Time: - 7-1 Opm r
1 81 Tnird Street _ San Francisco, CA 94103
Join us to ,celebrate anc experience the newest ultra premium headphone line! -,
- anny Wang Headphones
This is a closed event for special friends of Fanny Wang
, Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page48 of 51
EXHIBIT F Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page49 of 51
s U.S. Patent Oct. 2, 2007 Sheet 5 of 8 US D552,077
FIG. 8 Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page50 of 51
EXHIBIT G
Case3:10-cv-05680-MMC Document1 Filed12/14/10 Page51 of 51
ST•ems: P.Cial•M'i:Ti.rwaii4i
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A -DATA CE:iTE.2. AGENCY REPORT 21.1.-\!.• :adz Creitriirinib. ailecrtisinE and Promotions ()debtor, Buick and GMT • The Dots NEvy CORK (Sdage_cotru. -- Buoyed by Buiclds success in iff‘lrLes - Tho Ricivu . China, Gni transformed tne branosnd reposiboned for a dfferent audience. As a result, Back is the fastest-omwird Agr. Insights: • EatIpMen Ttad - Dis•ltiNsat Maier automotote. brand the U.S., „ . • doe:Mork: • Fawn tia - Beats by Dr. Dre THE DOTS - Salon digsaby Di try _fanny nowise. Chaisnxin et interscapeGeffesAOM - COM( Cudwgs,ora) Over the oast year, GLOBAL ACCOUNTS e bian-end seats by Or. Ore headphones. Which snOt ,anywhere from 200 to 5400, taw:1y st,rted replacing the ubiquitous AITtS Cid wall Pods.
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