THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Pageof12ID#:1 competition. competition follows: ( Inc. Namastetics, ColorImageApparel, Inc. Attorneys for Facsimile: Telephone: LosAltos 400 Main Street A THOITS [email protected] MisashaS.Graham/Bar 237187No. [email protected] MarkV. Boennighausen/Bar No. 142147 [email protected] P.Andrew Holland/BarNo. 224737
v. a California corporation COLORIMAGE APPAREL,INC. 10965.004/ 10,through inclusive, Canadian corporation; NAMASTETICS,INC., Professional Corporation
1. Plaintiff
1049871v
, California, LAW
, arising under arising , ( This is an action (650) 650) Defendant Plaintiff,
Plaintiff oo Iae pae, n. (“ Inc. Apparel, Image Color 2
, Suite
325 327 CENTRAL DISTRICT OF Dfnat or “Defendant” UNITEDSTATES DISTRICTCOURT - 94
- 5572
4200 250
s
022 .
DOES ,
a
35 U.S.C. section 271 section U.S.C. 35 NATURE OF THE CASE
WESTERN at law and in equity
1 COMPLAINT “Namastetics”)
DIVISION 1
DEMANDFOR JURY TRIA 2. 1. COMPLAINTFOR No.
UNFAIRCOMPETITION PATENTINFRINGEMENT I” algs gis defendant against alleges CIA”) CALIFORNIA
for
et seq. et
patent infringement
n De 1 hog 10 through 1 Does and
and common law unfair law common and
:
and unfair L
as , s
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page2of12ID#:2 their infringing products infringing their contractsfor sales intoenteringselling, sale, and for offering withoutlimitation by activities business t allege to complaint this amend will Plaintiff names. fictitious such by defendants these sues therefore Plaintiff and Plaintiff to unknown are inclusive, 10, through Dr Creek Edgewater 61 at business of place principal its with corporation principal deceiveconsumers andpublicthe regarding its source. Defendant a result, Defendant manufactured by CIA and are not connected to to similarconfusingly are that Legging Goddess thiscase. designs, non and athletic both Yoga
heirtruenames and capacities when ascertained. 10965.004/ ”), a ”), ,ONL8E 4Z2, Canada. 7. 6. 5. 4. 3. 2.
1049871v ALO Yoga ALO placebusinessof 6670at Flotilla Stre ’
s well
n nomto ad belief, and information On 1 Does as herein sued defendants of capacities and names true The belief, and information On PlaintiffColorImage Apparel, Inc. is a California Namastetics “ALO (collectively, Yoga® ALO and ALO® of creator the is CIA ecads i lkl t cause to likely is merchandise - 2 known and exceedingly popular line of athletic wear designed for designed wear athletic of line popular exceedingly and known
design and, as a result, a as and, design toward consumers residing in this judicial district, including district,judicial this in residing consumers toward
i ’s s
- in athletic settings. This line includes, among other distinctive other among includes, line This settings. athletic Goddess Legging Goddess fringing CIA’
wtot authorization, without , with residents of this judicial district, and calculating and calculating and district, judicial this of residents with
the
Goddess LeggingGoddess PARTIES COMPLAINT s patent on the Goddess Legging
Defendant (“Goddess Legging”)(“Goddess 2 is aattc has Namastetics
offering for sale and selling and sale for offering confusion
et,Commerce, California,90040. or endorsed by
Namastetics, Inc.Namastetics, . Defendant . is
oyn CI copying
n h marketplace the in
upsfly directed purposefully , CIA in any way. As
corporation withits which is at issue in issue at is which ’ s products ’ distinctive A’s . In addition, is a Canadian a is ive, products
are notare Stoney n to and
but
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page3of12ID#:3 / // orrelateof to acts omissionsand section jur personal with contacts established district judicial this judicial therebyinvoking the benefitsprotections and theof lawsof this judicial district goods that infringe CIA’s design patent to consumers residing in this judicial district, its information and 1338(b) and 1367 over CIA’s claims arising under the laws of the State of California. Patent Act U.S.C. action 28 to this pursuant over jurisdiction matter subject has Court This competition. unfair California, and ofthis judicial district inparticular. of State the of laws the of protections and benefits the invoking this thereby forum, in activities conducting of privilege the of themselves availed purposefully judicialdistrict. collecting California sales tax on sales of the infringing products to resid
10965.004/
website
11. 10. 9. 8.
1391 district
1049871v
. This Court has supplemental jurisdiction pursuant to 28 U.S.C. sections ( isdiction. https://www.namastetics.com/) Namastetics has Namastetics juris personal has Court This This action arises under herein, forth set activities the in engaging By (b)(2) Namastetics’s , has manufactured or distributed products used or consumed withinconsumed ordistributed or productsmanufactured used has ,
2 belief,
causinginjury as
n h odnr cus o tae o hs tews md or made otherwise has or trade, of course ordinary the in , on information and belief, a substantial part of the events, the of part substantial a belief, and information on , eu i poe in proper is Venue Namastetics is sections 1331 and 1338 and 1331 sections in JURISDICTIONAND VENUE
this judicial district judicial this
activitieswithin distributed or sold infringing merchandise within merchandise infringing sold or distributed that are the subject matter of this action arise outariseof action thissubject matter the are that 35 U.S.C. section 271 COMPLAINT
doing business in this judicial district 3
, hs uiil district judicial this
thisjudicial district through which it which through ito over diction
sufficient to permit the exer the permit to sufficient , as
CIA’s claims arise claims CIA’s
et seq. Namastetics
advertise
.
ne 2 U.S.C. 28 under
aattc has Namastetics and common law ent s
ne the under
and sell and
s of this through as, cise of cise
. this
on s
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page4of12ID#:4 design (left), with the with (left), design substantiallysame. the Defendant of designs corresponding the invent the of design the of appearance overall same. the substantially are Products Accused infringing the of design corresponding the and Patent ’346 as hereto attached are Account ( Namastetics’ website on displayed as Products Accused infringing the of photographs the still CIA owns the the owned and A collection. Patent”), duly and legally issued design. legwarmer ornamental and appearance distinctive the of hallmarks the of one became quickly marketed first it was when market wear athletic the revolutionized legwarmer
10965.004/ .
’346Patent CIA 17. 16. 15. 14. 13. 12.
is 1049871v
hc cvr pout sl udr A under sold products covers which
https://www.namastetics.com
the owner of the entire right, title, A true and corre al 1 blw sos side shows below, 1, Table the perceive will observer ordinary an belief, and information On and appearance overall The Certain Namastetics leggings marketed under the “Fusion” line infringe On September CIA’s
( 2 ’346 Patent ’346 collectively,
’346Patent innovative concept of creating an exercise pant with integrated integrated with pant exercise an creating of concept innovative infringing Fusions infringing
United States
FACTUALALLEGATIONS 6, 2016
ct copy of the throughout the period of Defendant of period the throughout the “Accusedthe .
Exhibit B Exhibit , the United States Patent and Trademark COMPLAINT Design ), Facebook Account, and Instagram Instagram and Account, Facebook ), - - design of the invention embodied in the the in embodied invention the of design by ’ . ’346 Patent 4 Black Black s
Products - Patent No. infringing Accused Products Products Accused infringing ie oprsn o the of comparisons side and interest ion embodied in the ’346 Patent and Patent ’346 the in embodied ion
L Yoga® ALO legging O Yoga LO ”).
is attached hereto as
True and correct copies of of copies correct and True US
s
in and to the (right) as an example of example an as (right)
s Gdes Legging” “Goddess ’s
D765,346 S brand, known for its its for known brand, ’ s infringing acts. infringing s ’346 Patent 36 Patent ’346 (the “ Exhibit Office o be to ’
346 and and s ,
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page5of12ID#:5 entiretheAccused Products line.copyA Tableof 1 isalso attachedas
10965.004/ 1049871v ’346 Patent Figures Patent ’346 2 and Defendant and
Table 1: Comparison of of Comparison 1: Table
’ s
Infringing Infringing COMPLAINT 5
Defendant’s Infringing Legging Infringing Defendant’s comparable image not available not image comparable Fusions Fusions
’346 Patent ’346 Legging
s
Exhibit
s
C .
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page6of12ID#:6
10965.004/ 1049871v 2
COMPLAINT 6
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page7of12ID#:7 leggings that embody the embody that leggings the an in suitablefor substantial non use for adapted especially or infringement of the made especially are Products Accused ’346 Patent Accused Products to customers with the specific intent to induce infringement of the Accused Products. Furthermore, the ads. infringes media indirectly social Namastetics and website its through States United the in Products. 10965.004/ ’346 Patent ’346 21. 20. 19. 18. 1049871v
.
Namastetics has belief, and information Upon infor Upon Namastetics offers for sale and sells the Accused Products to customers
2 sellingand/orimportingathleticsell, offeringbyusing, making, to
’346 Patent
mation and belief, Namastetics offers to sell and sells the sells and sell to offers Namastetics belief, and mation
- ’346 Patent ’346 infringinguse. infringed and is
and is not a staple article or commodity of commerce COMPLAINT 36 Patent ’346
nldn, u o iie t, h Accused the to, limited not but including,
7
aattc hd nweg ta the that knowledge had Namastetics still infringing, directly and indirectly,
eas is utmr ue the use customers its because
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page8of12ID#:8 / // // responded toCIA. as attached is letter this of copy correct follow a sent CIA for counsel letter, correct copyof this letteris attached as after a cease and desist letter was sent to Namastetics by CIA’s counsel. A true and the and allegations infringement way anyin CIA by approved or endorsed authorized,licensed, or CIA, with connected Namastetics this Court. by enjoined unless States United the throughout and district judicial this in sale for offer and sell advertise, distribute, manufacture, warmer. leg integrated an of appearance the gives which leg the of a as such ballet more l of of aesthetic nature athletic overall the and married it image as total design, its the of to appearance due leggings sports non of area and the revolutionized athletic both for Legging
10965.004/
.
27. 26. 25. 24. 23. 22.
1049871v
flat front panel at the top of the legging the of top the at panel front flat
n n mi dated email an In receivin After Namastetics belief, and information Upon The belief, and information On manufac been has CIA are 2
products o mnfcue b CA nr is nor CIA, by manufactured not Namastetics’s - inspired pants with distinctive, non distinctive, with pants inspired
g no response from Namastetics to its August 29, 2017 2017 29, August its to Namastetics from response no g manufactured, ’346 Patent ’346
responsedid notresolve the dispute. 2017 4, December turing, advertising, and selling the Goddess Goddess the selling and advertising, turing, COMPLAINT - up letter on November 7, 2017. A true and and true A 2017. 7, November on letter up Exhibit D Exhibit - Exhibit Exhibit tltc s. use. athletic distributed, offered for sale and sold by sold and sale for offered distributed, 8 aattc is Namastetics
at least as early as early as least at
E s .
. and a loose panel at the bottom bottom the at panel loose a and
cusl o Namastetics for counsel , Namastetics its The Goddess Legging Legging Goddess The ad il otne to continue will and , eae wr o the of aware became unauthorized productsunauthorized - functional attributes attributes functional
eggings with the the with eggings August 29, 2017 29, August
soitd or associated
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page9of12ID#:9 Namastetics’s with and done is, and was, reputation,unless restrained and enjoined bythis Court. limited not but including CIA, to injury will continue to create a likelihood of confusion and irreparable harm, damage, and competit unfair constitute infull. allegation contained in Namastetics’s designa that infringes ’346 the leggingshavingStates,United the or into insell, import sale,and/or for offer use, Unitedcontinue andStates, the orinto in and/orimported sold,sale, for infull. allegation contained in
10965.004/ 34. 33. 32. 31. 30. 29. 28.
1049871v u rgr t te ieiod f ofso t te ulc rae by created public the to confusion of likelihood the to regard out
aattc has Namastetics belief, and information On Namastetics’s an each reference this by incorporates and repeats CIA i be to continue will and been has CIA Namastetics every and each reference this by incorporates and repeats CIA
infringementtheof ’346 activities. 2
with full knowledge of CIA’s statutory and common law rights law common and statutory CIA’s of knowledge full with (PatentInfringement
paragraphs 1 through paragraphs 1 through SECOND
, with FIRST CLAIMFOR RELIEF ion under California common law, and have created and created have and law, common California under ion
nuhrzd cin ad odc a algd herein alleged as conduct and actions unauthorized
asd n, nes etand n ejie b this by enjoined and restrained unless and, caused (UnfairCompetition) out authorization from CIA, has
Patent. CLAIM COMPLAINT
Patent. Namastetics’s
to injury to CIA's goodwill and business and goodwill CIA's to injury to
9 FOR RELIEFFOR –
2 29
35U.S.C. 6 above, inclusive, as though set forth
above, inclusive, as though set forth
unfair competition with CIA CIA competitionwith unfair
§271)
rprby amd by harmed rreparably
made, used, offered s
tomake, every d
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page10of12ID#:10
way orway areapproved byCIA; eith anyone, to representing from thereafter permanently the and action during this enjoined of be pendency above, the with participation or concert active in others all and supervision, or control their within others any and them, under or through wi for, acting persons all and confederates, attorneys, employees, servants, mannerinconnection with apparelinthe UnitedStates distribution,marketing,sales, pro from thereafter permanently and concert or participation with the above, be enjoined during the pendency of this action under or through by, with, for, acting persons all and confederates,attorneys, employees, PatentAct and requestsrelief asfollows conduct by permanen a to entitled therefore is CIA law. atremedyadequateno has CIA whichforirreparable injury suffer to continue will but notlimi Court, will continue to cause irreparable harm, damage and injury to CIA, including
10965.004/ er orallyer or in writing,that their business or goods are affiliated withCIA in any 4. 3. 2. 1. for praysPlaintiff WHEREFORE, 35. it , and any others within the within others any and ,
1049871v
;
ted toinjurytoCIA’s goodwill and business reputation. Namastetics ht Defenda That Tha determinationA t the to pursuant case exceptional an is action this that determination A of result a As 2 Defendant t
.
nt Namastetics’s
ad ah of each and , : and
hat Defendant hasinfringed the motion,otheradvertising, identification,orinany its nrnig the infringing ir control or supervision, and all others in active in others all and supervision, or control ir PRAYER COMPLAINT fies drcos prnr, gns servants, agents, partners, directors, officers,
an order and order an acts, 10 its
t injunction against further i further against injunction t
fies drcos prnr, agents, partners, directors, officers,
CIA has suffered, is suffering, and suffering, is suffered, has CIA 36 Patent ‘346 ; judgment against Defendant againstjudgment
‘346 Patent n h manufacturing, the in
; n
fringing th, by, th,
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page11of12ID#:11
statutes action this prosecuting action herein, and/or asa result unjustof enrichment a activities unlawful the from Defendant by derived advantages and profits section 285 viewof the intentional a prooftrialat inwhich injunction, a report in writing, under oath, setting forth in detail the manner and form permanent or preliminary any of entry the after days (30) thirty within CIA, serve date; possible Defendant’scarries third any injunction, permanent or preliminary any of entry the creating theinfringing items; products,
10965.004/
14. 13. 12. 11. 10. 9. 8. 7. 6. 5. pursu ; and ;
1049871v D
and to destroy all patterns, stencils, molds, plates, mast plates, molds, stencils, patterns, all destroy to and efendanthas
and detailedas inthis Complaint a
Forsuchfurther relief as this Court shall deem justprop and a For a For Foran award of punitive damages according toproof; For an order requiring Defendant to account for and pay to CIA all gains, Defendant or damages CIA’s times three of award an For Defendant’ of award an For For an order requiring Defendant to file with the Clerk of this Court and F For an order requiring Defendant to cease offering for sale
ntto and as detailedinthis Complaint
or an order requiring Defendant 2
n award of CIA’s attorneys’ fees for bringing and prosecutingfor bringingthis and feesattorneys’ CIA’s of award n aad f I’ css n epne icre i bign and bringing in incurred expenses and costs CIA’s of award n 35U.S.C. section 285
infringingproducts
usat to pursuant ndwillful nature Defendant’sof acts, pursuantto complied with
5 ... eto 285 section U.S.C. 35 COMPLAINT 1 to cease to
through s and 11
profits and CIA’s damages according to according damages CIA’s and profits
;
all applicablestate statutes ; to instruct, within thirty (30) days after
as detailedas inthis Complaint
selling 7
above; those productsthose
and - l apial state applicable all party
ers, or means of means or ers, at the earliestthe at its ; website that website ’s
er.
35U.S.C.
infringing profits in profits ;
lleged
THOITS LAW A PROFESSIONAL CORPORATION 400 Main Street, Suite 250 Los Altos, California 94022 (650) 327-4200 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1
Case 2:18-cv-00503Document1Filed01/19/18Page12ofID#:12
Dated entitledabove action pursuanttoFed. R. P.Civ. 38(b).
10965.004/ : the in jury by trial demands hereby Inc. Apparel, Image Color Plaintiff
January 1049871v 2 1
8 , 2018
JURYDEMAND By COMPLAINT
:
12
ColorImageApparel, Inc. Attorneys fo /s/ Andrew/s/ P. Holland
Andrew P.Andrew Hollan THOITS
r
LAW Plaintiff
d