Sketchers v. US Polo - Complaint

Case 2:13-cv-03768-JAK-VBK Document 9 Filed 06/24/13 Page 1 of 50 Page ID #:72
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NATURE OF THE ACTION 1. 2. This is an action for design patent infringement, trade dress infringement, Skechers is a world leader in designing cutting-edge footwear. It has and unfair competition. invested and spent hundreds of millions of dollars creating and promoting its new shoe designs. One such new design is an ornamental outsole periphery, an example of which is embodied in its GOwalk shoe. The GOwalk shoe and its outsole periphery have been heavily advertised on TV, in magazines, and the Internet. In approximately the last year alone, Skechers spent more than four million dollars ($4,000,000) advertising its GOwalk shoe. The shoe has been featured in several widely aired television commercials and has been the subject of a number of magazine articles. The fame and popularity of the GOwalk shoe and its outsole periphery can be measured by the fact that more than five million (5,000,000) pairs of GOwalk shoes have been sold since the shoe has been on the market. 3. In order to identify certain of its shoes, including the GOwalk shoe, as emanating from a single source, Skechers created a new and unique trade dress embodied in the outsole periphery of the shoe. An example of this trade dress is indicated in red outline in the following photograph:
Skechers GOwalk outsole periphery trade dress indicated in red outline

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FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION AND TRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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4.
This outsole periphery trade dress has an ornamental configuration that
uniquely identifies the shoe as emanating from a single source, Skechers. As can be seen in the following photograph, the distinctive ornamental feature of the GOwalk outsole periphery trade dress is the repeating pattern of cleats or nubs where cleats or nubs that have a relatively straight periphery surface (indicated by wide green arrows) alternate with cleats or nubs that have a curved periphery surface (indicated by narrow red arrows):
Skechers GOwalk Outsole Periphery (Medial view) 5. Skechers has acquired two U.S. design patents, D661,880 (Exhibit 1) and
D680,309 (Exhibit 2), which each cover different ornamental features of the GOwalk outsole periphery. 6. The unique ornamental appearance of the GOwalk outsole periphery trade dress, combined with Skechers extensive advertising, promotion, and sales, has resulted in the GOwalk outsole periphery trade dress acquiring distinctiveness among shoe buyers. In the mind of the typical shoe buyer, the GOwalk outsole periphery trade dress is believed to emanate from a single source, namely, Skechers. This acquired distinctiveness is protectable, proprietary trade dress owned exclusively by Skechers. 7. Rather than undertake the hard work and financial risks involved in developing their own outsole periphery trade dress, defendants simply copied Skechers
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GOwalk outsole periphery trade dress. The outsole periphery of defendants U.S. Polo Assn. shoe in this regard is shown below.
U.S. POLO ASSN. (Medial view) As can be seen, the outsole periphery of defendants U.S. Polo Assn. shoe bears the same repeating cleat or nub pattern used by Skechers as its GOwalk outsole periphery trade dress, i.e., the cleats or nubs that have a relatively straight periphery surface (indicated by wide green arrows) alternate with cleats or nubs that have a curved periphery surface (indicated by narrow red arrows). By using Skechers GOwalk outsole periphery trade dress on defendants shoes, defendants deceive consumers into buying defendants shoes in the mistaken belief that defendants shoes emanate from Skechers and are genuine Skechers shoes. 8. Skechers has also invested substantial time, resources, and money in developing its proprietary Bikers Dream Come True trade dress. Based on these efforts, since its introduction at least as early as May 2010, Skechers has domestically sold approximately six million (6,000,000) pairs of shoes that embody its Bikers Dream Come True trade dress. /// /// /// ///
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9.
Defendants copied Skechers proven-successful Bikers Dream Come True
trade dress rather than taking a risk by trying to develop their own unproven trade dress. A sample of Skechers original Bikers Dream Come True trade dress is pictured below followed by a picture of defendants shameless knockoff Wanda shoe.
PARTIES 10. Plaintiff Skechers U.S.A., Inc. is a corporation duly organized and existing under the laws of the State of Delaware with a principal place of business located at 228 Manhattan Beach Blvd., Manhattan Beach, California 90266. 11. Plaintiff Skechers U.S.A., Inc. II is a corporation duly organized and existing under the laws of the State of Delaware with a principal place of business located at 228 Manhattan Beach Blvd., Manhattan Beach, California 90266. Skechers U.S.A., Inc. II is a wholly-owned subsidiary of Skechers U.S.A., Inc.
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12. 13.
Defendant United Footwear Group, Inc. is a New York corporation having Defendant United States Polo Association, Inc. is a not-for-profit Illinois
an office and place of business 10 West 33rd St., New York, New York 10001-3306. corporation having an office and place of business at 4037 Iron Works Parkway, Suite 110, Lexington, Kentucky 40511. 14. Defendant USPA Properties, Inc. is an Illinois corporation having an office and place of business at 771 Corporate Drive, Suite 430, Lexington, Kentucky 40503. USPA is a wholly-owned subsidiary of United States Polo Association, Inc. USPA manages the licensing program of United States Polo Association, Inc. 15. Defendants Does 1 10, inclusive, are sued herein under fictitious names. Their true names and capacities are unknown to Skechers. When their true names and capacities are ascertained, Skechers will amend this complaint by inserting their true names and capacities. Skechers is informed and believes and thereon alleges, that Does 1 10, and each of them are responsible in some manner for the occurrences alleged herein and that Skechers' damages were proximately caused by such defendants. JURISDICTION AND VENUE 16. Jurisdiction in this Court arises under the patent laws of the United States, 35 U.S.C. 271 and 289 and the provisions of 15 U.S.C. 1121 and 1125. This complaint also alleges violations of state law and common law. This Court has jurisdiction over these claims pursuant to 28 U.S.C. 1338(a) and (b), 1367(a), and 1400(b). 17. This Court has personal jurisdiction over defendants because they have committed one or more of the infringing acts complained of herein in California and in this district, they have regular places of business in California and in this district, and they do regular business in California and in this district. 18. Venue in this Court is proper under the provisions of 28 U.S.C. 1391(b) and (c) because a substantial part of the claims arose in this district. SKECHERS GOWALK OUTSOLE PERIPHERY DESIGN PATENTS
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19.
The United States Patent and Trademark Office has acknowledged the novel,
non-obvious, and ornamental appearance of the outsole periphery of the GOwalk shoe by issuing U.S. Patent, No. D661,880 (Exhibit 1, the "'880 patent") therefor to Skechers. Defendants infringement of the 880 patent can be seen in the comparison below which shows a sample figure from the 880 patent next to defendants U.S. Polo Assn. shoe.
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20.
The United States Patent and Trademark Office has acknowledged the novel,
non-obvious, and ornamental appearance of the outsole periphery of the GOwalk shoe by issuing U.S. Patent, No. D 680,309 (Exhibit 2, the "'309 patent") therefor to Skechers. Defendants infringement of the 309 patent can be seen in the comparison below which shows a sample figure from the 309 patent next to defendants U.S. Polo Assn. shoe.
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SKECHERS GOWALK OUTSOLE PERIPHERY TRADE DRESS 21. The trade dress embodied in the outsole periphery of the GOwalk shoe is shown in comparison to the U.S. Polo Assn. shoe below.
FIRST CAUSE OF ACTION (Design Patent Infringement, Patent No. US D661,880 S) 22. Skechers realleges and incorporates by reference the full text of all of the foregoing numbered paragraphs, photographs and figures as though each such paragraph, photograph and figure has been fully set forth hereat. ///
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23.
On June 19, 2012, the United States Patent and Trademark Office issued
United States Patent, Patent No. US D661,880 S, the '880 patent. At all times since the date of issue of the '880 patent, Skechers has been, and currently is, the exclusive owner of the entire right, title and interest in and to the '880 patent. Skechers' ownership of the '880 patent includes without limitation the exclusive right to enforce the '880 patent, the exclusive right to file actions based on infringement of the '880 patent, and the exclusive right to recover damages or other monetary amounts for infringement of the '880 patent and to be awarded injunctive relief pertaining to the '880 patent. Skechers has owned the '880 patent at all times during defendants' infringement of the '880 patent. 24. Defendants have been, and presently are, infringing the '880 patent within this judicial district and elsewhere by making and selling shoes that embody the patented invention disclosed in the '880 patent. Defendants infringement of the 880 patent is willful. Defendants' infringing shoes are referred to as "U.S. Polo Assn. Defendants' U.S. Polo Assn. shoe is shown above and in Exhibit 3. Defendants will continue to manufacture and import their U.S. Polo Assn. shoes unless enjoined by this Court. 25. The outsole periphery of defendants' U.S. Polo Assn. shoe so closely resembles the invention disclosed in the '880 patent that an ordinary observer would be deceived into purchasing the U.S. Polo Assn. shoe in the mistaken belief that it includes the invention disclosed in the '880 patent. Defendants' U.S. Polo Assn. shoe infringes the 880 patent in violation of 35 U.S.C. 271 and 289. 26. Due to Defendants' infringement of the '880 patent, Skechers has suffered, is suffering, and will continue to suffer irreparable injury for which Skechers has no adequate remedy at law. Skechers is therefore entitled to a permanent injunction against defendants' further infringing conduct. 27. Defendants have profited and are profiting from their infringement of the '880 patent and Skechers has been and is being damaged and losing profit by such infringement. Skechers is therefore entitled to recover damages from defendants and the total profit derived from such infringement, all in an amount to be proven at trial.
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SECOND CAUSE OF ACTION (Design Patent Infringement, Patent No. US D680,309 S) 28. Skechers realleges and incorporates by reference the full text of all of the foregoing numbered paragraphs, photographs and figures as though each such paragraph, photograph and figure has been fully set forth hereat. 29. On April 23, 2013, the United States Patent and Trademark Office issued United States Patent, Patent No. US D680,309 S, the '309 patent. At all times since the date of issue of the '309 patent, Skechers has been, and currently is, the exclusive owner of the entire right, title and interest in and to the '309 patent. Skechers' ownership of the '309 patent includes without limitation the exclusive right to enforce the '309 patent, the exclusive right to file actions based on infringement of the '309 patent, and the exclusive right to recover damages or other monetary amounts for infringement of the '309 patent and to be awarded injunctive relief pertaining to the '309 patent. Skechers has owned the '309 patent at all times during defendants' infringement of the '309 patent. 30. Defendants have been, and presently are, infringing the '309 patent within this judicial district and elsewhere by making and selling shoes that embody the patented invention disclosed in the '309 patent. Defendants infringement of the 309 patent is willful. Defendants' infringing shoes are referred to as "U.S. Polo Assn. Defendants' U.S. Polo Assn. shoe is shown above and in Exhibit 3. Defendants will continue to manufacture and import their U.S. Polo Assn. shoes unless enjoined by this Court. 31. The outsole periphery of defendants' U.S. Polo Assn. shoe so closely resembles the invention disclosed in the '309 patent that an ordinary observer would be deceived into purchasing the U.S. Polo Assn. shoe in the mistaken belief that it includes the invention disclosed in the '309 patent. Defendants' U.S. Polo Assn. shoe infringes the 309 patent in violation of 35 U.S.C. 271 and 289. 32. Due to defendants' infringement of the '309 patent, Skechers has suffered, is suffering, and will continue to suffer irreparable injury for which Skechers has no
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adequate remedy at law. Skechers is therefore entitled to a permanent injunction against defendants' further infringing conduct. 33. Defendants have profited and are profiting from their infringement of the '309 patent and Skechers has been and is being damaged and losing profit by such infringement. Skechers is therefore entitled to recover damages from defendants and the total profit derived from such infringement, all in an amount to be proven at trial. THIRD CAUSE OF ACTION (GOwalk Outsole Periphery Trade Dress - Federal Unfair Competition and Trade Dress Infringement; 15 U.S.C. 1125(a)) 34. Skechers realleges and incorporates by reference the full text of all of the foregoing numbered paragraphs, photographs and figures as though each such paragraph, photograph and figure has been fully set forth hereat. 35. Skechers has acquired exclusive and protectable trade dress rights embodied in its GOwalk outsole periphery trade dress. By the acts and omissions set forth above, defendants are violating Lanham Act 43(a), 15 U.S.C. 1125(a) and are unfairly competing with Skechers. Defendants' use in commerce of the GOwalk outsole periphery on their U.S. Polo Assn. shoe constitutes a false designation of origin and a false and misleading representation of fact which is likely to cause confusion, and to cause mistake, and to deceive by wrongly suggesting that defendants U.S. Polo Assn. shoe has some affiliation, connection, or association with Skechers. Such use by defendants of their U.S. Polo Assn. shoe is also likely to cause confusion, and to cause mistake, and to deceive as to the origin, sponsorship, or approval of defendants' U.S. Polo Assn. shoe. Such use by defendants of their U.S. Polo Assn. shoe constitutes trade dress infringement in violation of Lanham Act 43(a), 15 U.S.C. 1125(a). 36. Defendants have infringed, and continue to infringe, Skechers' GOwalk outsole periphery trade dress. Defendants' U.S. Polo Assn. shoe infringes Skechers' GOwalk outsole periphery trade dress.
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37.
Defendants' conduct is likely to cause confusion, mistake and deception
among the general purchasing public, and interfere with Skechers' ability to sell and profit from its GOwalk outsole periphery trade dress. 38. Defendants' conduct as described above is also likely to harm or extinguish the current ability of Skechers' GOwalk outsole periphery trade dress to indicate that that trade dress emanates from a single source. Defendants' conduct as described above harms the goodwill and reputation associated with Skechers GOwalk outsole periphery trade dress. 39. Skechers has suffered, is suffering, and will continue to suffer irreparable injury for which Skechers has no adequate remedy at law. Skechers is therefore entitled to a permanent injunction against defendants' further infringing conduct. 40. Defendants have profited and are profiting from such trade dress infringement and unfair competition, and Skechers has been and is being damaged and losing profit by such infringement and unfair competition. Skechers is therefore entitled to recover damages and profits from defendants in an amount to be proved at trial as a consequence of defendants' violations of Lanham Act 43(a), 15 U.S.C. 1125(a). FOURTH CAUSE OF ACTION (Bikers Dream Come True Trade Dress - Federal Unfair Competition and Trade Dress Infringement; 15 U.S.C. 1125(a)) 41. Skechers realleges and incorporates by reference the full text of all of the foregoing numbered paragraphs, photographs and figures as though each such paragraph, photograph and figure has been fully set forth hereat. 42. Skechers has acquired exclusive and protectable trade dress rights embodied in its Bikers Dream Come True shoe. By the acts and omissions set forth above, defendants are violating Lanham Act 43(a), 15 U.S.C. 1125(a) and are unfairly competing with Skechers. Defendants' copying and use in commerce of Skechers Bikers Dream Come True trade dress constitutes a false designation of origin and a false and misleading representation of fact which is likely to cause confusion, and to cause
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mistake, and to deceive by wrongly suggesting that defendants Wanda shoe has some affiliation, connection, or association with Skechers Bikers Dream Come True shoe. Such use by defendants of their Wanda shoe is also likely to cause confusion, and to cause mistake, and to deceive as to the origin, sponsorship, or approval of defendants' Wanda shoe. Such use by defendants of their Wanda shoe constitutes trade dress infringement in violation of Lanham Act 43(a), 15 U.S.C. 1125(a). 43. Defendants have infringed, and continue to infringe, Skechers' Bikers Dream Come True trade dress. Defendants' Wanda shoe infringes Skechers' Bikers Dream Come True trade dress. Defendants' Wanda shoe is shown above and in Exhibit 4. 44. Defendants' conduct is likely to cause confusion, mistake and deception among the general purchasing public, and interfere with Skechers' ability to sell and profit from its Bikers Dream Come True trade dress. 45. Defendants' conduct as described above is also likely to harm or extinguish the current ability of Skechers' Bikers Dream Come True trade dress to indicate that that trade dress emanates from a single source. Defendants' conduct as described above harms the goodwill and reputation associated with the Bikers Dream Come True trade dress. 46. Skechers has suffered, is suffering, and will continue to suffer irreparable injury for which Skechers has no adequate remedy at law. Skechers is therefore entitled to a permanent injunction against defendants' further infringing conduct. 47. Defendants have profited and are profiting from such trade dress infringement and unfair competition, and Skechers has been and is being damaged and losing profit by such infringement and unfair competition. Skechers is therefore entitled to recover damages and profits from defendants in an amount to be proved at trial as a consequence of defendants' violations of Lanham Act 43(a), 15 U.S.C. 1125(a). /// /// ///
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FIFTH CAUSE OF ACTION (Common Law Unfair Competition) 48. Skechers realleges and incorporates by reference the full text of all of the foregoing numbered paragraphs, photographs and figures as though each such paragraph, photograph and figure has been fully set forth hereat. 49. Defendants are willfully, fraudulently, oppressively, maliciously and unlawfully attempting to pass off, and are passing off, their infringing footwear as those approved and/or authorized by Skechers. 50. Defendants use in commerce of the U.S. Polo Assn. shoe and the Wanda shoe continues to confuse and deceive consumers as to the source of origin of the goods and services for which Skechers has invested substantial time, effort and money in developing and further damages Skechers' goodwill and reputation. 51. Defendants have been palming off their goods as Skechers' goods. Consumers have been and continue to be confused as to whether defendants U.S. Polo Assn. shoe and defendants Wanda shoe are affiliated with Skechers. 52. 53. 54. The damage suffered by Skechers is irreparable and will continue unless Defendants' willful, deliberate and malicious conduct constitutes unfair Such conduct by defendants is the sole reason for defendants' ability to defendants are restrained by this Court from the commission of these acts. competition with Skechers. market and sell their unauthorized copies of shoes that embody Skechers' GOwalk outsole periphery trade dress and Bikers Dream Come True trade dress. 55. 56. Defendants are being unjustly enriched through such flagrantly unlawful Skechers has no adequate remedy at law in that the continuing nature of the conduct and should be punished therefor. unfair competition will result in irreparable harm to Skechers should defendants not be enjoined from their acts of unfair competition.
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57.
A complete recitation of the damages suffered by Skechers as a result of this REQUEST FOR RELIEF
unfair competition must await discovery of defendants' books and records. WHEREFORE, Plaintiffs Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II respectfully demand a judgment against defendants as follows: 1. A judgment declaring that defendants have: a. Infringed Skechers' '880 and 309 patents; b. Infringed Skechers' GOwalk outsole periphery trade dress; c. Infringed Skechers Bikers Dream Come True trade dress; d. Competed unfairly with Skechers; e. Injured Skechers' business reputation by the unauthorized use of Skechers' GOwalk outsole periphery trade dress; f. Willfully violated the applicable laws of the United States and of the states where defendants' goods have been sold, all to the detriment of Skechers; 2. That the defendants, their officers, agents, servants, employees, attorneys, assigns and all persons in active concert with or participation with them be forthwith preliminarily and thereafter permanently enjoined and restrained from: a. Infringing or inducing infringement of the '880 and 309 patents; b. Infringing or inducing infringement of Skechers' GOwalk outsole periphery trade dress or Skechers Bikers Dream Come True trade dress; c. Using Skechers' GOwalk outsole periphery trade dress or Bikers Dream Come True trade dress, alone or in combination with any other elements, to advertise or identify defendants' goods or services; d. Unfairly competing with Skechers in any manner whatsoever; e. Causing likelihood of confusion, or injury to Skechers business and to the reputation of Skechers' marks, symbols, labels, or forms of advertising or promotion; f. Engaging in any acts or activities directly or indirectly calculated to trade upon
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Skechers' GOwalk outsole periphery trade dress or Bikers Dream Come True trade dress or the reputation or goodwill of Skechers, or in any way to compete unfairly with Skechers; 3. For a judgment directing that any shoes, goods, labels, emblems or packaging in the possession or under the control of defendants which infringe the '880 patent or 309 patent or any colorable imitation or facsimile thereof, but not emanating from Skechers, be delivered up and destroyed within 10 days of entry of judgment, and that all instrumentalities used in the production of such shoes, goods, labels, emblems or packaging, including any and all items, objects, tools, machines, and equipment used in such production, be delivered up and destroyed within 10 days of entry of judgment; 4. For a judgment directing defendants to recall all infringing goods and any other materials sold, distributed, advertised or marketed which infringe the '880 patent and/or 309 patent or any colorable imitation or facsimile thereof, but not emanating from Skechers; 5. For a judgment against defendants awarding Skechers damages, lost profits, reasonable royalties, and other monetary amounts including without limitation: a. All damages sustained by Skechers as a result of defendants' unlawful infringement of the '880 patent and/or 309 patent, together with appropriate interest on such damages and that such damages be trebled, pursuant to 35 U.S.C. 284; b. Defendants' total profit from defendants' sales of footwear that infringes the '880 patent and/or 309 patent, and all other remedies provided by 35 U.S.C. 289; c. All remedies provided for by 15 U.S.C. 1117 (a), including but not limited to all damages sustained by Skechers as a result of defendants' unlawful infringement of the Skechers' GOwalk outsole periphery trade dress and Bikers Dream Come True trade dress together with appropriate interest on such damages and that such damages be trebled;
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EXHIBIT 1
(Skechers U.S.A., Inc, et al. v. Anthony L & S, LLC, et al., U.S.D.C., C.D. Cal. Case No.: _________________) (Exhibit 1 to May 24, 2013 Complaint For Damages And Injunctive Relief) (Exhibit 1: United States Design Patent, Patent No. US D661,880 S, June 19, 2012)
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EXHIBIT 2
(Skechers U.S.A., Inc, et al. v. Anthony L & S, LLC, et al., U.S.D.C., C.D. Cal. Case No.: _________________) (Exhibit 1 to May 24, 2013 Complaint For Damages And Injunctive Relief) (Exhibit 1: United States Design Patent, Patent No. US D680,309 S, April 23, 2013)
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EXHIBIT 3
(Skechers U.S.A., Inc, et al. v. Anthony L & S, LLC, et al., U.S.D.C., C.D. Cal. Case No.: _________________) (Exhibit 1 to May 24, 2013 Complaint For Damages And Injunctive Relief) (Exhibit 1: photographs of defendants infringing U.S. Polo Assn. shoe)
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EXHIBIT 4
(Skechers U.S.A., Inc, et al. v. Anthony L & S, LLC, et al., U.S.D.C., C.D. Cal. Case No.: _________________) (Exhibit 1 to May 24, 2013 Complaint For Damages And Injunctive Relief) (Exhibit 1: photographs of defendants infringing Wanda shoe)
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Sketchers v. US Polo - Complaint

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Sketchers v. US Polo - Complaint

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Case 2:13-cv-03768-JAK-VBK Document 9 Filed 06/24/13 Page 1 of 50 Page ID #:72

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Skechers GOwalk outsole periphery trade dress indicated in red outline

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This outsole periphery trade dress has an ornamental configuration that

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Defendants copied Skechers proven-successful Bikers Dream Come True

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Defendants' conduct is likely to cause confusion, mistake and deception

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