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					            Case 2:13-cv-00882-DAK Document 2 Filed 09/27/13 Page 1 of 12




Larry R. Laycock (Utah State Bar No. 4868)
    llaycock@mabr.com
David R. Wright (Utah State Bar No. 5164)
    dwright@mabr.com
Adam B. Beckstrom (Utah State Bar No. 14127)
    abeckstrom@mabr.com
MASCHOFF BRENNAN
201 South Main Street, Suite 600
Salt Lake City, Utah 84111
Telephone: (435) 252-1360
Facsimile: (435) 252-1361

Attorneys for Plaintiff LUMOS, INC.

                       IN THE UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF UTAH


LUMOS, INC., a Utah corporation,
                                                      Civil Action No.: 2:13-cv-00882-DAK
                      Plaintiff,
       v.                                                         COMPLAINT

Mr. Dumpster, a Utah DBA, Jesse Gettler,                       JURY DEMANDED
an individual, Robert Bishop, an individual
                                                              Judge Dale A. Kimball
                      Defendant.


       Plaintiff Lumos, Inc. (“Lumos”) complains against defendants Mr. Dumpster, Jesse

Gettler, and Robert Bishop (collectively “Defendants”) for the causes of action as follows:
              Case 2:13-cv-00882-DAK Document 2 Filed 09/27/13 Page 2 of 12




                                               PARTIES

         1.       Plaintiff Lumos is a corporation duly organized and existing under the laws of the

State of Utah, with its principal place of business located at 1119 South 1680 West Orem, UT

84058.

         2.       Defendant Mr. Dumpster Inc., Mr. Dumpster is a DBA organized and existing

under the laws of Utah, with its principal place of business located at 147 N 800 W Orem, UT

84057.

         3.       On information and belief, Defendant Robert Bishop is the owner and operator of

Mr. Dumpster. On information and belief, Defendant Robert Bishop is a Utah resident residing

in or near the city of Orem, Utah.

         4.       On information and belief, Jesse Gettler is a Utah resident residing at 57 Kintail

St., Lehi, UT 84043.

                                   JURISDICTION AND VENUE

         5.       This is a civil action for trademark infringement arising under the Lanham Act of

1946, as amended, 15 U.S.C § 1114, et seq.

         6.       This is a civil action for unfair competition arising under Utah Code Ann. § 13-

5a-101, et seq.

         7.       This is a civil action for common law breach of contract.

         8.       This is a civil action for deceptive trade practices arising under Utah Code Ann. §

13-11a-1, et seq.




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             Case 2:13-cv-00882-DAK Document 2 Filed 09/27/13 Page 3 of 12




        9.       This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

§§ 1331 and 1338 as to Plaintiff’s trademark infringement and unfair competition claims. This

Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) as to Plaintiff’s related state

claims because they arise out of the same occurrences alleged in the Complaint so as to form a

part of the same case or controversy within the meaning of Article III of the United States

Constitution.

        10.      This Court has personal jurisdiction over Defendant Mr. Dumpster because Mr.

Dumpster is a DBA organized under the laws of Utah, holds its principal place of business in

Utah, has purposefully availed itself of the privileges and benefits of the laws of the State of

Utah, has committed acts of trademark infringement in the State of Utah, and has violated Utah

state laws within this judicial district.

        11.      This Court has personal jurisdiction over Jesse Gettler and Robert Bishop because

both are residents of Utah, both have purposefully availed themselves of the privileges and

benefits of the laws of the State of Utah, both conduct business in Utah, both have committed

acts of trademark infringement, and both have violated Utah state laws within this judicial

district.

        12.      Venue is proper in this district pursuant to 28 U.S.C. §§ 1391 and 1400.

                                            BACKGROUND

        13.      Plaintiff realleges and incorporates by reference all of the preceding paragraphs of

this Complaint as though fully set forth herein.




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        14.     Lumos is a privately held company that designs, develops, and distributes sports

medicine products.

        15.     Lumos’s products are distributed worldwide to individuals, medical professionals,

and teams through major retailers, specialty sports stores, medical distributors, and team

distributors.

        16.     Lumos registered the mark “KT Tape” for use in marketing its KT Tape brand

kinesiology tape on December 8, 2009. This trademark is registered with the USPTO under

registration number 77,574,227. Lumos is, and has been at all times, the owner of the KT Tape

trademark.

        17.     KT Tape brand kinesiology tape (“KT Tape”) is Lumos’s flagship product line.

        18.     KT Tape is useful in therapy to reduce soreness in overused and injured muscles

and in rehabilitation to accelerate recovery.

        19.     KT Tape is applied to an injury with a high quality adhesive that allows the

kinesiology tape to adhere to the body during intense physical activity such as swimming, sand

volleyball, basketball, and soccer.

        20.     KT Tape was widely used during the 2008 and 2012 Summer Olympics by

athletes in many sports.

        21.     On or around the beginning of 2013, Lumos identified a large quantity of KT

Tape that did not meet the high manufacturing standards set by Lumos (the “Flawed KT Tape”).




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       22.     To avoid the certain damage that would be caused to the good will and value of

the KT TAPE trademark by introducing the Flawed KT Tape in the market, Lumos sought out a

private trash removal service to dispose of a the Flawed KT Tape.

       23.     Mr. Dumpster is in the business of renting large dumpsters to customers for trash

removal and disposal.

       24.     On or around January 17, 2013, Lumos engaged Mr. Dumpster to dispose of

approximately 12,700 rolls of Flawed KT Tape. Mr. Dumpster contracted with Lumos to remove

the Flawed KT Tape and haul it to the dump for the price of $435.

       25.     At no time did Lumos authorize Mr. Dumpster, Mr. Bishop, or Mr. Gettler to sell

the Flawed KT Tape.

       26.     On information and belief, Mr. Dumpster finished the removal of the Flawed KT

Tape on or around January 24, 2013 but did not dispose of it. Rather, Mr. Dumpster, through

Robert Bishop, conspired with Jesse Gettler to sell the Flawed KT Tape, contrary to Mr.

Dumpster’s contract with Lumos.

       27.     Defendants began engaging in unauthorized sales of the Flawed KT Tape at least

as early as January 2013. The unauthorized sales include, but are not limited to, sales on

ebay.com under the user name playharder801 and Amazon.com under the user names

run4fun365 and playharder801.

       28.     Defendants have also made at least unauthorized offers to sell KT Tape on

Facebook.com using the pages Jesse Gettler, Color me Rad, Utah Marathon & Fittest State

Festival, and Utah Runner Girls Race Series.


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       29.     In their listings, Defendants described the Flawed KT Tape as “Brand New, Never

Opened………Great Price.”

       30.     Defendants made each sale and offer to sell using the KT Tape trademark.

       31.     Many purchasers of the Flawed KT Tape expressed disappointment with the

quality of the Flawed KT Tape.

       32.     Defendant’s use of the KT Tape trademark during these unauthorized sales of the

Flawed KT Tape has damaged the KT Tape trademark.

       33.     This damage is evidenced at least by the disappointment expressed on

Defendant’s Amazon.com seller page by many who purchased Flawed KT Tape from

Defendants.

       34.     On information and belief, at least some of Defendant’s unauthorized sales were

made to potential purchasers of genuine product from Lumos.

       35.     Defendant’s previously enumerated actions have caused, and continue to cause,

Lumos extensive financial damage and damage to the value and goodwill of Lumos’s trademark.

       36.     In addition to the significant financial damage that Lumos has and is suffering as

a result of Defendant’s actions, Lumos is suffering immediate and irreparable harm as a result of

Defendant’s actions.

                               FIRST CLAIM FOR RELIEF
                       Trademark Infringement, 15 U.S.C. § 1114, et seq.

       37.     Plaintiff realleges and incorporates by reference all of the preceding paragraphs of

this Complaint as though fully set forth herein.



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        38.    Lumos is the owner of all rights in and to the trademark “KT Tape” in at least the

kinesiology tape market.

        39.    Defendant’s use of the KT Tape trademark is likely to cause confusion, mistake,

or deception as to the source, origin, affiliation, connection, or association of the Flawed KT

Tape.

        40.    Defendant’s use of the KT Tape trademark is not authorized by Lumos and

Defendants are not authorized in any other way to sell kinesiology tape using the KT Tape

trademark.

        41.    Defendant’s unauthorized sales and marketing of Flawed KT Tape have deprived

Lumos of the right to control the quality of goods sold under its trademark.

        42.    For at least these reasons, Defendants have infringed the KT Tape trademark.

        43.    Defendants have engaged in infringement of the KT Tape trademark with full

knowledge of the KT Tape Trademark. Therefore, Defendants have been intentional, deliberate,

and willful in their infringement.

        44.    Lumos is entitled to damages in an amount to be established at trial.

        45.    Lumos has no adequate remedy at law for the irreparable injury it has suffered

and will continue to suffer unless Defendants are both preliminarily and permanently enjoined

from their infringing and improper conduct.

                                SECOND CLAIM FOR RELIEF
                   State Law Unfair Competition, Utah Code Ann. § 13-5a-102(4)

        46.    Plaintiff realleges and incorporates by reference all of the preceding paragraphs of

this Complaint as though fully set forth herein.

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         Case 2:13-cv-00882-DAK Document 2 Filed 09/27/13 Page 8 of 12




       47.     Defendants intentionally, unlawfully, and unfairly retained the Flawed KT Tape

when Defendants were under obligation to dispose of the Flawed KT Tape.

       48.     The sale of the Flawed KT Tape has damaged the goodwill and value of the KT

Tape trademark by selling inferior goods under the trademark.

       49.     Purchasers of the Flawed KT Tape have posted negative comments regarding the

Flawed KT Tape on Defendant’s seller page on at least Amazon.com. These negative comments

represent at least a portion of the diminution of the goodwill and value of the KT Tape

trademark.

       50.     Defendant’s unauthorized sale of kinesiology tape under the KT Tape trademark

constitutes trademark infringement.

       51.     For at least these reasons, Defendants have engaged in unfair competition.

       52.     Lumos is thus entitled to actual damages, costs and attorney fees, and punitive

damages pursuant to Utah Code Annotated § 13-5a-103(1)(b).

                                  THIRD CLAIM FOR RELIEF
                                 Common Law Breach of Contract

       53.     Plaintiff realleges and incorporates by reference all of the preceding paragraphs of

this Complaint as though fully set forth herein.

       54.      Pursuant to the contract agreement entered into on or around January 17, 2013,

Lumos, Mr. Dumpster, and Mr. Dumpster’s owner Robert Bishop, agreed to remove the Flawed

KT Tape and haul it to the dump.

       55.     Pursuant to the same agreement, Lumos paid Mr. Dumpster $435 for the trash

removal service.

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          Case 2:13-cv-00882-DAK Document 2 Filed 09/27/13 Page 9 of 12




        56.     Mr. Dumpster failed to perform its obligations under the contract by not hauling

the Flawed KT Tape to the dump, thereby breaching the contract.

        57.     Lumos has been damaged by Mr. Dumpster’s breech because, by conspiring with

Mr. Gettler to sell the Flawed KT Tape, rather than fulfilling the terms of the contract, Mr.

Dumpster has caused damage to the value and goodwill of the KT Tape trademark.

        58.     For this breach of contract, Lumos is entitled to damages in an amount to be

established at trial.

                              FOURTH CLAIM FOR RELIEF
                 Deceptive Trade Practices, Utah Code Ann. § 13-11a-1, et seq.

        59.     Plaintiff realleges and incorporates by reference all of the preceding paragraphs of

this Complaint as though fully set forth herein.

        60.     On information and belief, in offers to sell, Defendants represented and continue

to represent, both explicitly and impliedly, that the Flawed KT Tape is original or new even

though they themselves pulled the KT Tape from the dumpster after the Flawed KT Tape was

placed therein by Lumos for disposal because it did not meet the high standards of quality that

Lumos sets for its KT Tape brand.

        61.     On information and belief, in offers to sell, Defendants represent that the Flawed

KT Tape has the same characteristics of brand new KT Tape sold by Lumos, but it does not.

        62.     On information and belief, in offers to sell, Defendants represent, both explicitly

and impliedly, that the Flawed KT Tape is of the particular standard which customers associate

with the KT Tape trademark, but it is not.

        63.     For at least these reasons, Defendants have engaged in deceptive trade practices.

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         Case 2:13-cv-00882-DAK Document 2 Filed 09/27/13 Page 10 of 12




       64.     Lumos is thus statutorily entitled to injunctive relief to prohibit any further sale of

the Flawed KT Tape, actual damages in an amount to be established at trial, costs, and attorneys’

fees pursuant to Utah Code Ann. 13-11a-4(2)(a), (b), and (c).

                                    PRAYER FOR RELIEF

       WHEREFORE, Lumos prays for entry of a final order and judgment as follows:

A. This court issue a judgment finding that Defendants are liable for infringement of Lumos’s

   trademark, unfair competition, breach of contract, and deceptive trade practices;

B. Lumos be granted preliminary and permanent injunctive relief pursuant to 15 U.S.C. § 1114,

   et seq. enjoining Defendants, their officers, agents, servants, employees, and all those in

   active concert or participation with them from further acts of direct or indirect infringement

   of Lumos’s trademark in any manner;

C. This court issue an order that Defendants destroy all Flawed KT Tape in their possession or

   control, or in the possession or control of their officers, agents, servants, employees, and all

   those in active concert or participation with them pursuant to 15 U.S.C. § 1118;

D. Lumos be awarded three times Defendants’ profits or Lumos’s damages, whichever is

   greater, pursuant to 15 U.S.C §1117;

E. This court issue a declaration that this is an exceptional case under 15 U.S.C. § 1117;

F. Lumos be awarded its costs, reasonable attorney fees, and treble damages, pursuant to 15

   U.S.C §1117;

G. Lumos be awarded its actual damages, costs, attorney fees, and punitive damages caused by

   Defendant’s unfair competition, pursuant to Utah Code Ann. § 13-5a-103;


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        Case 2:13-cv-00882-DAK Document 2 Filed 09/27/13 Page 11 of 12




H. Lumos be awarded consequential damages caused by Defendant’s breach of contract in an

   amount to be established at trial;

I. An order of this Court permanently enjoining Defendants, their officers, agents, servants,

   employees, and all those in active concert or participation with them from engaging in

   deceptive trade practices, pursuant to at least Section 34(a) of the Lanham Act, 15 U.S.C. §

   1116(a), and Utah Code Ann. § 13-11a-4(2)(a);

J. Lumos be awarded the greater of either Lumos’s damages or Defendant’s profits in an

   amount to be established at trial, pursuant to applicable statutory and common law, including

   at least the greater of Lumos’s actual damages or $2,000, pursuant to Utah Code Ann. § 13-

   11a-4(2)(b);

K. Lumos be awarded prejudgment interest, pursuant to at least 15 U.S.C. § 1117(b);

L. Lumos be awarded post-judgment interest, pursuant to at least 28 U.S.C. § 1961(a); and

M. Lumos be granted such other and further relief as the Court may deem just and proper under

   the circumstances.




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     Case 2:13-cv-00882-DAK Document 2 Filed 09/27/13 Page 12 of 12




                                DEMAND FOR JURY TRAIL

   Pursuant to rule 38 of the Federal Rules of Civil Procedure, Lumos demands trial by jury

on all claims and issues so triable.

DATED: September 26, 2013.



                                        MASCHOFF BRENNAN LAYCOCK GILMORE
                                        ISRAELSEN & WRIGHT



                                        By:    /s/ Larry R. Laycock
                                               Larry R. Laycock
                                               David R. Wright
                                               Adam B. Beckstrom

                                               Attorneys for Plaintiff
                                               LUMOS, INC.




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