Jugs Sports v. Easton-Bell Sports et. al

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Jugs Sports v. Easton-Bell Sports et. al Powered By Docstoc
					      Peter E. Heuser, OSB No. 811281
      pheuser@schwabe.com
      Kimvi T. To, OSB No. 115865
      kto@schwabe.com
      Schwabe, Williamson & Wyatt, P.C.
      Pacwest Center
      1211 SW 5th Ave., Suite 1900
      Portland, OR 97204
      Telephone 503.222.9981
      Fax 503.796.2900

               Attorneys for Plaintiff, Jugs Sports, Inc.




                                   IN THE UNITED STATES DISTRICT COURT

                                         FOR THE DISTRICT OF OREGON

                                             PORTLAND DIVISION

       JUGS SPORTS, INC., an Oregon                                            Case No.: ______________
       corporation,

                                                                   COMPLAINT FOR PATENT
                            Plaintiff,                           INFRINGEMENT, TRADEMARK
               vs.                                               INFRINGEMENT, AND UNFAIR
                                                                       COMPETITION
       EASTON-BELL SPORTS, INC., a
       Delaware corporation, and EASTON-BELL                       DEMAND FOR JURY TRIAL
       SPORTS, L.L.C., a Delaware corporation,


                            Defendants.


               Plaintiff Jugs Sports, Inc. alleges as follows:

                                            NATURE OF THE CASE
               1.        This is a patent infringement lawsuit brought under the patent laws of the United
                                                                                     SCHWABE, WILLIAMSON & WYATT, P.C.
Page 1 -       COMPLAINT FOR PATENT INFRINGEMENT,                                               Attorneys at Law
                                                                                                 Pacwest Center
               TRADEMARK INFRINGEMENT, AND UNFAIR                                         1211 SW 5th Ave., Suite 1900
                                                                                               Portland, OR 97204
               COMPETITION                                                          Telephone 503.222.9981 Fax 503.796.2900


      PDX/122358/176636/PEH/10110366.1
      States, including 35 U.S.C. §§ 271, 281, 283-85, and 289.

               2.       In addition, this is a trademark infringement and unfair competition case arising

      under common law.

                                                     PARTIES
               3.       Plaintiff Jugs Sports, Inc. (“Jugs”) is a corporation, organized and existing under

      the laws of the State of Oregon, with its principal place of business at 11885 SW Herman Road,

      Tualatin, Oregon 97062.

               4.       Upon information and belief, Defendants Easton-Bell Sports, Inc. and Easton-Bell

      Sports, L.L.C. (collectively “Easton”) are business entities, organized and existing under the

      laws of the State of Delaware, with their principal place of business at 7855 Haskell Avenue,

      Suite 200, Van Nuys, California 91406.

                                         JURISDICTION AND VENUE
               5.       This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338

      because the action arises, in part, under the patent laws of the United States. This Court has

      supplemental jurisdiction over Jugs’ related common law claims under 28 U.S.C. § 1367.

               6.       This Court has general jurisdiction over Easton because Easton maintains

      continuous and systematic contacts with the State of Oregon, including but not limited to selling

      or offering for sale products to distributors and retailers throughout the state and in this judicial

      district. Indeed, if a website user enters “Salem, OR” in the “Store Locator” section of Easton’s

      website, www.eastonbaseball.com, the website identifies 41 Oregon dealers located within a 50
      mile radius. A copy of the web screen capture is attached as “Exhibit A.”

               7.       Venue is proper in this Court under 27 U.S.C. §1391(b), §1391(c), and/or

      1400(b).

                                          FACTUAL BACKGROUND
               8.        Established over forty years ago under a predecessor name, Plaintiff Jugs is a

      family-owned Oregon company dedicated to offering quality sporting equipment. In particular,
                                                                              SCHWABE, WILLIAMSON & WYATT, P.C.
Page 2 -     COMPLAINT FOR PATENT INFRINGEMENT,                                        Attorneys at Law
                                                                                                  Pacwest Center
               TRADEMARK INFRINGEMENT, AND UNFAIR                                          1211 SW 5th Ave., Suite 1900
                                                                                                Portland, OR 97204
               COMPETITION                                                           Telephone 503.222.9981 Fax 503.796.2900


      PDX/122358/176636/PEH/10110366.1
      Jugs is well-known for its line of baseball and softball training aids, such as baseball pitching

      machines, softball pitching machines and other practice equipment. Jugs’ products are designed

      for and trusted by professional and amateur athletes worldwide. With numerous patents in its

      name, Jugs is a significant innovator within the industry. Due to its reputation and focus on

      quality training aids, Jugs and its products enjoy a high degree of brand recognition and

      goodwill.

               9.       On March 5, 2001, Jugs filed a design patent application that was subsequently

      examined by the United States Patent and Trademark Office (“PTO”). On December 4, 2001,

      the PTO duly and legally issued U.S. Patent No. D451,566 (“the ‘566 Patent”), entitled
      “BATTING PRACTICE TEE,” based on the patent application. Jugs holds all rights, title, and

      interest in the ‘566 Patent. A copy of the ‘566 Patent is attached as “Exhibit B.”

               10.      Defendant Easton is in the business of marketing, distributing and selling sporting

      equipment, including without limitation, baseball batting tees through its online website,

      www.eastonbaseball.com, and third party retailers located throughout the United States,

      including in this judicial district.

               11.      On information and belief, including statements made on Easton’s website

      www.eastonbaseball.com, Easton products, including the “Pro 5 Point Hitting Tee” (“Accused

      Product”), infringe the ‘566 Patent. Easton provides product information regarding the Accused

      Product on its website. A copy of this product information is attached as “Exhibit C.”

               12.      Jugs has marked and continues to mark products made under the ‘566 Patent,

      including its “5-Point Hitting Tee” batting tee product. Jugs provides product information

      regarding the “5-Point Hitting Tee” batting tee on its website www.jugssports.com. A copy of
      this product information is attached as “Exhibit D.”

               13.      The “5-Point Hitting Tee” batting tee is well-known and popular among the

      general public and athletes of all levels. In fact, it is consistently one of Jugs’ top selling

      products, as advertised on its website, www.jugssports.com. Since 2001, Jugs has continuously
                                                                                SCHWABE, WILLIAMSON & WYATT, P.C.
Page 3 -     COMPLAINT FOR PATENT INFRINGEMENT,                                          Attorneys at Law
                                                                                                    Pacwest Center
               TRADEMARK INFRINGEMENT, AND UNFAIR                                            1211 SW 5th Ave., Suite 1900
                                                                                                  Portland, OR 97204
               COMPETITION                                                             Telephone 503.222.9981 Fax 503.796.2900


      PDX/122358/176636/PEH/10110366.1
      and exclusively used the trademark “5-Point Hitting Tee” to refer to one of its batting tees. As a

      result, the trademark, “5-Point Hitting Tee,” has become associated exclusively with Jugs and

      has come to be recognized favorably by the public as an indicator of Jugs’ goods and their

      quality. Accordingly, Jugs owns valuable goodwill in connection with its “5-Point Hitting Tee”

      trademark.

               14.      On information and belief, after Jugs’ first use of its “5-Point Hitting Tee”

      trademark, Easton adopted and began using a nearly identical mark, “Pro 5 Point Hitting Tee”

      (“Accused Mark”), in connection with the Accused Product. Easton continues to advertise and

      sell the Accused Product using the Accused Mark. The Accused Product and Accused Mark are
      depicted in Exhibit D.

               15.      Easton is not an authorized licensee of Jugs, and Jugs has never given Easton

      permission to use the design claimed in the ‘566 Patent or any form or the “5-Point Hitting Tee”

      trademark.

                                                      COUNT I

                                         (Patent Infringement 35 U.S.C. § 271)
               16.      Jugs incorporates by reference paragraphs 1 through 15 as set forth above.

               17.      Upon information and belief, Easton has made, used, offered to sell, sold, and/or

      imported into the United States, and still is at least using, offering to sell, selling, and/or

      importing into the United States, products that infringe the ‘566 Patent, such as the Accused

      Product.

               18.      Upon information and belief, Easton has been and still is inducing third parties,

      such as dealers located throughout the United States, to offer to sell, sell, or use the Accused

      Product and thereby directly infringe the ‘566 Patent. A copy of a screen capture of Easton’s

      “Store Locator” page, which allows visitors of its website to locate dealers, is attached as

      “Exhibit A.”

               19.      Because Jugs’ 5-Point Hitting Tee batting tee is clearly marked with the ‘566
                                                                                        SCHWABE, WILLIAMSON & WYATT, P.C.
Page 4 -       COMPLAINT FOR PATENT INFRINGEMENT,                                                  Attorneys at Law
                                                                                                    Pacwest Center
               TRADEMARK INFRINGEMENT, AND UNFAIR                                            1211 SW 5th Ave., Suite 1900
                                                                                                  Portland, OR 97204
               COMPETITION                                                             Telephone 503.222.9981 Fax 503.796.2900


      PDX/122358/176636/PEH/10110366.1
      Patent, it appears on information and belief that Easton’s infringement of the ‘566 Patent has

      been intentional and willful, making this an exceptional case.

               20.      Easton’s infringement of the ‘566 Patent has injured and will continue to injure

      Jugs unless and until the Court enjoins further infringement of the ‘566 Patent.

                                                    COUNT II
                      (Common Law Trademark Infringement and Unfair Competition)

               21.      Jugs incorporates by reference paragraphs 1 through 15 set forth above.

               22.      Easton is using the Accused Mark in a manner that is likely to cause confusion, to

      cause mistake and to deceive as to the affiliation, connection, or association of Easton and Jugs,

      and as to the origin, sponsorship, and approval of Easton’s goods by Jugs.

               23.      Easton’s acts constitute common law trademark infringement and unfair

      competition and have created and will continue to create a likelihood of confusion, thereby

      causing irreparable harm to Jugs, including without limitation, injury to Jugs’ reputation and

      business identity, resulting in lost revenue and profits and diminished goodwill and reputation.

      Jugs has no adequate remedy at law for this injury.

               24.      On information and belief, Easton acted with full knowledge of Plaintiff’s

      common law rights in the “5-Point Hitting Tee” trademark and without regard to the likelihood

      of confusion of the public created by Easton’s activities.

               25.      On information and belief, Easton’s actions in selling a virtually identical product

      under a virtually identical trademark demonstrate an intentional, willful, and malicious intent to

      trade on the goodwill associated with Jugs’ “5-Point Hitting Tee” trademark to the great and
      irreparable injury of Jugs.

               26.      As a result of Easton’s acts, Jugs has been damaged in an amount not yet

      determined or ascertainable. At a minimum, Jugs is entitled to injunctive relief, an accounting of

      profits, actual damages, punitive damages, and costs.


                                                                                      SCHWABE, WILLIAMSON & WYATT, P.C.
Page 5 -       COMPLAINT FOR PATENT INFRINGEMENT,                                                Attorneys at Law
                                                                                                  Pacwest Center
               TRADEMARK INFRINGEMENT, AND UNFAIR                                          1211 SW 5th Ave., Suite 1900
                                                                                                Portland, OR 97204
               COMPETITION                                                           Telephone 503.222.9981 Fax 503.796.2900


      PDX/122358/176636/PEH/10110366.1
                                                  JURY DEMAND

               27.      Pursuant to Fed. R. Civ. P. 38(b), Jugs hereby demands a trial by jury of all issues

      so triable that are raised herein or which hereinafter may be raised in this action.

                                              PRAYER FOR RELIEF
               1.       A judgment declaring that Easton has willfully infringed the ‘566 Patent;

               2.       A judgment, order, or award of damages adequate to compensate Jugs for

      Easton’s infringement of the ‘566 Patent, together with prejudgment interest;

               3.       A preliminary and/or permanent injunction prohibiting Easton and its subsidiaries,

      affiliates, parents, successors, assigns, officers, employees, attorneys, agents, and all other

      persons acting with Easton or on its behalf from infringing the ‘566 Patent;

               4.       A preliminary and/or permanent injunction prohibiting Easton and its subsidiaries,

      affiliates, parents, successors, assigns, officers, employees, attorneys, agents, and all other

      persons acting with Easton or on its behalf from:

                            a. Affixing, applying, annexing, or using in connection with the advertising,

                                 sale, or offering of sporting equipment, the Accused Mark, any marks

                                 confusingly similar to Jugs’ “5-Point Hitting Tee” mark, or any other

                                 marks that might tend to falsely describe or represent such goods as being

                                 those of Jugs;

                            b. Performing any actions or using any trademarks, service marks, or other

                                 words, names, titles, designs, or logos that are likely to cause confusion, to
                                 cause mistake, to deceive, or to otherwise mislead the trade or public into

                                 believing that Easton’s batting tees are sponsored by, affiliated with, or in

                                 any way connected to Jugs;

                            c. Using any trademarks, service marks, or other words, names, titles,

                                 designs, or logos or engaging in any other conduct that creates a likelihood

                                 of injury to the business reputation of Jugs or a likelihood of
                                                                                        SCHWABE, WILLIAMSON & WYATT, P.C.
Page 6 -       COMPLAINT FOR PATENT INFRINGEMENT,                                                  Attorneys at Law
                                                                                                    Pacwest Center
               TRADEMARK INFRINGEMENT, AND UNFAIR                                            1211 SW 5th Ave., Suite 1900
                                                                                                  Portland, OR 97204
               COMPETITION                                                             Telephone 503.222.9981 Fax 503.796.2900


      PDX/122358/176636/PEH/10110366.1
                                 misappropriating Jugs’ distinctive trademarks and the goodwill associated

                                 therewith;

                            d. From further infringing Jugs’ “5-Point Hitting Tee” trademark and

                                 damaging Jugs’ goodwill; and

                            e. Engaging in any trade practices, including those complained of herein,

                                 which unfairly compete with or injure Jugs, its business, or the goodwill

                                 appertaining thereto.

               5.       An accounting to determine information relevant to establishing the extent of

      Easton’s infringement and gains, profits, and advantages derived by Easton from its wrongful
      acts;

               6.       An award of costs and attorney fees pursuant to 35 U.S.C. § 285, to the extent the

      Court finds this case to be exceptional;

               7.       With respect to the ‘566 Patent, an order trebling the damage award under 35

      U.S.C. § 284, together with prejudgment interest; and

               8.       Such other and further relief as this Court may deem proper and just.



               Dated this 14th day of September, 2012.

                                                         Respectfully submitted,

                                                         SCHWABE, WILLIAMSON & WYATT, P.C.



                                                         By:    /s/ Peter E. Heuser
                                                                Peter E. Heuser, OSB No. 811281
                                                                Kimvi T. To, OSB No. 115865
                                                                Telephone 503.222.9981


                                                                Attorneys for Jugs Sports, Inc.



                                                                                        SCHWABE, WILLIAMSON & WYATT, P.C.
Page 7 -       COMPLAINT FOR PATENT INFRINGEMENT,                                                  Attorneys at Law
                                                                                                    Pacwest Center
               TRADEMARK INFRINGEMENT, AND UNFAIR                                            1211 SW 5th Ave., Suite 1900
                                                                                                  Portland, OR 97204
               COMPETITION                                                             Telephone 503.222.9981 Fax 503.796.2900


      PDX/122358/176636/PEH/10110366.1

				
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