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10965.004/1200439v1 1
COMPLAINT
Andrew P. Holland/Bar No. 224737 [email protected] Misasha S. Graham/Bar No. 237187 [email protected] Michael Y. Hsueh/Bar No. 286548 [email protected] THOITS LAW A Professional Corporation 400 Main Street, Suite 250 Los Altos, California 94022 Telephone: (650) 327-4200 Facsimile: (650) 325-5572 Attorneys for Plaintiff ALO, LLC
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION ALO, LLC a California Limited Liability Company,
Plaintiff, v. REFLEX PERFORMANCE RESOURCES, INC. DBA 90 DEGREE BY REFLEX, a New York Corporation; DOES 1 through 10, inclusive,
Defendants.
No. COMPLAINT FOR: 1. PATENT INFRINGEMENT
2. TRADE DRESS
INFRINGEMENT
3. UNFAIR COMPETITION
DEMAND FOR JURY TRIAL
Plaintiff ALO, LLC (“ALO”) alleges the following against defendant Reflex
Performance Resources, Inc. d/b/a 90 Degree By Reflex (“Defendant” or “90
Degree”) and Does 1 through 10 (collectively, “Defendants”):
NATURE OF THE CASE
1. This is an action at law and in equity for patent infringement, trade
dress infringement and unfair competition, arising under 35 U.S.C. section 271 et
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10965.004/1200439v1 2
COMPLAINT
seq., 15 U.S.C. section 1125 et seq., and common law unfair competition.
2. ALO is the owner of ALO® and ALO Yoga® (collectively, “ALO
Yoga”), a well-known and exceedingly popular line of athletic wear designed for
both athletic and non-athletic (“athleisure”) settings. This line includes, among
other distinctive designs, ALO Yoga’s Moto Legging (“Moto Legging”), which is
at issue in this case.
3. Defendants, without authorization, are copying ALO’s distinctive Moto
Legging design and, as a result, are offering for sale and selling products that are
confusingly similar to the Moto Legging. Defendants’ products are not
manufactured by ALO and are not connected to or endorsed by ALO in any way.
As a result, Defendants are infringing ALO’s patent on the Moto Legging. In
addition, Defendants’ merchandise is likely to cause confusion in the marketplace
and to deceive consumers and the public regarding its source, as Defendants have
liberally utilized ALO’s distinctive trade dress and the goodwill that ALO has
developed in the athleisure/athletic wear market to create its infringing products.
PARTIES
4. Plaintiff ALO, LLC is a California limited liability company with its
principal place of business at 6670 Flotilla Street, Commerce, California, 90040.
5. On information and belief, 90 Degree is a corporation organized and
existing under the laws of the State of New York with its principal place of business
at 525 Fashion Avenue, Suite 1601, New York, New York 10018.
6. The true names and capacities of defendants sued herein as Does 1
through 10, inclusive, are unknown to Plaintiff and Plaintiff therefore sues these
defendants by such fictitious names. Plaintiff will amend this complaint to allege
their true names and capacities when ascertained.
7. On information and belief, Plaintiffs alleges that, at all times relevant
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10965.004/1200439v1 3
COMPLAINT
hereto, each of the Defendants was the alter ego of each of the other Defendants, by
way of the existence of an agency, employee, and/or successor/predecessor
relationship, and was at all times acting within the course and scope of such
relationship, with the knowledge, approval, consent, or ratification of each of the
other Defendants.
8. On information and belief, Defendants have purposefully directed
business activities toward consumers residing in this judicial district, including but
without limitation by offering for sale, selling, and entering into sales contracts for
their infringing products with residents of this judicial district.
9. By engaging in the activities set forth herein, Defendants have
purposefully availed themselves of the privilege of conducting activities in this
forum, thereby invoking the benefits and protections of the laws of the State of
California, and of this judicial district in particular.
JURISDICTION AND VENUE
10. This action arises under 35 U.S.C. section 271 et seq., the Lanham
Act, 15 U.S.C. section 1125 et seq., and common law unfair competition. This
Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. sections
1331 and 1338, as ALO’s claims arise under the Patent Act, and pursuant to 15
U.S.C. section 1121, as ALO’s claims also arise under the Lanham Act. This Court
has supplemental jurisdiction pursuant to 28 U.S.C. sections 1338(b) and 1367 over
ALO’s claims arising under the laws of the State of California.
11. This Court has personal jurisdiction over Defendants as, on information
and belief, Defendants are doing business in this judicial district through their
website (https://www.90degreebyreflex.com) through which it advertises and sells
goods that infringe ALO’s design patent and trade dress to consumers residing in
this judicial district, thereby invoking the benefits and protections of the laws of this
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10965.004/1200439v1 4
COMPLAINT
judicial district.
12. Defendants have distributed or sold infringing merchandise within this
judicial district, have manufactured or distributed products used or consumed within
this judicial district in the ordinary course of trade, or have otherwise made or
established contacts within this judicial district sufficient to permit the exercise of
personal jurisdiction. Venue is proper in this judicial district under 28 U.S.C.
section 1391(b)(2) as, on information and belief, a substantial part of the events,
omissions and acts causing injury that are the subject matter of this action arise out
of or relate to Defendants’ activities within this judicial district.
FACTUAL ALLEGATIONS
13. ALO’s innovative concept of creating an exercise legging with
motorcycle pant stylings revolutionized the athletic wear market when it was first
marketed and quickly became one of the hallmarks of the ALO Yoga® brand,
known for its distinctive appearance and ornamental “moto” design. This design
has since become well known in the “athleisure” market as well, with celebrities,
yogis, and other well-known individuals wearing this product both for yoga and
for other physical activities.
14. On December 27, 2016, the United States Patent and Trademark Office
duly and legally issued United States Design Patent No. US D774,731 S (the “’731
Patent”), which covers products sold under ALO Yoga’s “Moto Legging”
collection. A true and correct copy of the ’731 Patent is attached hereto as Exhibit
A. The ‘731 Patent was initially assigned to Color Image Apparel, Inc. (“CIA”)
which in turn assigned the ‘731 Patent to ALO on May 1, 2018, with the assignment
being recorded on October 16, 2018. ALO is the owner of the entire right, title and
interest in and to the ’731 Patent.
15. Certain 90 Degree leggings currently marketed as “7/8 Combination
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10965.004/1200439v1 5
COMPLAINT
Biker Legging” (“Biker Legging”) infringe the ’731 Patent (the “Accused
Product”). True and correct copies of photographs of the infringing Accused
Product as displayed on 90 Degree’s website (https://www.90degreebyreflex.com)
are attached hereto as Exhibit B.
16. The overall appearance and design of the invention embodied in the
’731 Patent and the corresponding design of the infringing Accused Product are
substantially the same.
17. On information and belief, an ordinary observer will perceive the
overall appearance of the design of the invention embodied in the ’731 Patent and
the corresponding designs of Defendants’ infringing Accused Product to be
substantially the same.
18. Table 1, below, shows side-by-side comparisons of the ’731 Patent
design (left), with the infringing Biker Leggings (right). A copy of Table 1 is also
attached as Exhibit C.
/ / /
/ / /
/ / /
/ / /
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/ / /
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10965.004/1200439v1 6
COMPLAINT
Table 1: Comparison of ’731 Patent
and Defendants’ Infringing Biker Leggings
’731 Patent Figure Defendant’s Infringing Leggings
Figure 1
19. Defendants offer for sale and sell the Accused Product to customers
throughout the United States through their website and social media ads.
Furthermore, Defendants indirectly infringe the ’731 Patent because their customers
use the Accused Product.
20. Upon information and belief, Defendants offer to sell and sell the
Accused Product to customers with the specific intent to induce infringement of the
’731 Patent.
21. Upon information and belief, Defendants had knowledge that the
Accused Product is especially made or especially adapted for use in an infringement
of the ’731 Patent and is not a staple article or commodity of commerce suitable for
substantial non-infringing use.
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10965.004/1200439v1 7
COMPLAINT
22. Defendants have infringed and are still infringing, directly and
indirectly, the ’731 Patent by continuing to make, use, offer to sell, sell and/or
importing athletic/athleisure leggings that embody the ’731 Patent including, but not
limited to, the Accused Product.
23. ALO has been manufacturing, advertising, and selling the Moto
Legging for both athletic and non-athletic use. The Moto Legging revolutionized
the area of sports leggings due to the total image and overall appearance of its
design, as it married the athletic nature of leggings with the aesthetic of more
motorcycle inspired pants with distinctive, non-functional attributes such as a flat
front panel at the top of the leggings and raised ridge panels at the thigh, shin and
back calves that give the appearance of “moto” leggings. Together, these
attributes make up the “Moto Legging Trade Dress.”
24. As the result of ALO’s extensive marketing, advertising and
promotion of its Moto Legging Trade Dress throughout numerous and diverse
mediums and forums, as well as its strong commercial success and substantial
consumer sales, the public well recognizes and understands that the Moto
Legging Trade Dress distinguishes and identifies a specific ALO product – the
Moto Legging. Due to its fashion-forward styling and quality craftsmanship,
the Moto Legging has, since its inception, also been featured prominently in
athleisure wear as a fashionable option in the leggings space.
25. ALO’s Moto Legging Trade Dress is distinctive and non-functional.
Through its own activities, which includes but is not limited to extensive
marketing, advertising, and other promotional activities, ALO has built a
valuable reputation around its ALO Moto Legging Trade Dress, which has
acquired significant secondary meaning. In doing so, ALO has created substantial
goodwill in the market as well.
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10965.004/1200439v1 8
COMPLAINT
26. Upon information and belief, ALO alleges that it has the exclusive
right to use the Moto Legging Trade Dress in interstate commerce, and on
information and belief, ALO’s use has been exclusive since it first adopted the
ALO Moto Legging Trade Dress, with the exception of unauthorized uses such as
Defendants’ as described in this Complaint.
27. ALO used the Moto Legging Trade Dress extensively and
continuously before Defendants began using and selling confusingly similar
imitations of ALO’s product.
28. Subsequent to ALO’s creation of the Moto Legging Trade Dress,
Defendants commenced advertising, distributing, selling and offering for sale their
infringing products, which unlawfully copies or imitates the Moto Legging Trade
Dress.
29. A side by side visual comparison of ALO’s Moto Legging Trade
Dress and Defendants’ infringing product is shown below in Table 2, and also
attached as Exhibit D.
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10965.004/1200439v1 9
COMPLAINT
Table 2: Moto Legging Trade Dress Comparison
ALO’s
Moto Legging Trade Dress
Defendants’
Biker Legging
30. On information and belief, Defendants have, are, and will continue
to manufacture, distribute, advertise, sell and offer for sale their unauthorized
products in this judicial district and throughout the United States unless enjoined
by this Court.
31. The products manufactured, distributed, offered for sale and sold by
Defendants are not manufactured by ALO nor are Defendants
associated/connected with, licensed, authorized, endorsed or approved by ALO in
any way.
32. Defendants’ use of the Moto Legging Trade Dress is likely to cause
confusion in the minds of the consuming public, and has damaged and is damaging
ALO’s valuable intellectual property rights by creating the false impression that
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10965.004/1200439v1 10
COMPLAINT
Defendants and/or their infringing product is authorized, sponsored, endorsed,
and/or approved by ALO, or that their infringing product originates from ALO,
when it does not. This is particularly damaging with respect to those persons who
perceive a quality issue or a defect in Defendants’ products. In so doing,
Defendants have created such a likelihood of confusion, deception or mistake that
ALO’s reputation and the goodwill that it has created through its own careful
activities related to the Moto Legging Trade Dress will be irreparably harmed.
33. On information and belief, Defendants’ activities complained of herein
constitute willful and intentional infringement of the Moto Legging Trade Dress, as
Defendants continue to willfully and intentionally sell their confusing imitation
products in a way that directly competes with ALO’s Moto Legging Trade Dress.
34. Upon information and belief, Defendants became aware of the
infringement allegations and the ’731 Patent at least as early as March 22, 2017 after
a cease and desist letter was sent to Defendants by ALO’s counsel. A true and
correct copy of this letter is attached as Exhibit E. The original letter referenced
the Infringing Product, which was at that time called the “Moto Leggings with
Pleated Mesh Insert.”
35. ALO’s counsel never received a written response to this cease and
desist letter. Upon information and belief, Defendants, at some point between
receiving that letter and the filing of this lawsuit, removed the Infringing Product
referenced in the March 22, 2017 letter from their website. However, instead of
complying with ALO’s request in the March 22, 2017 letter to no longer sell the
Infringing Product, on information and belief, Defendants renamed the Infringing
Product by its current name (“Biker Legging”) in an attempt to circumvent
discovery and further infringe on ALO’s intellectual property rights, and once again
offered the Infringing Product for sale on Defendants’ website.
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10965.004/1200439v1 11
COMPLAINT
36. Defendants’ purposeful behavior with regard to renaming the Infringing
Product is yet another example of Defendants’ willful and intentional infringement
of ALO’s ‘731 Patent and the Moto Legging Trade Dress.
37. ALO has contacted Defendants regarding several other products sold
on Defendants’ website that potentially infringe other patents and/or trade dress of
ALO.
38. As of the date of filing this Complaint, ALO still has received no
response from Defendants to its original cease and desist letter regarding the
Infringing Product at issue in this Complaint.
FIRST CLAIM FOR RELIEF
(Patent Infringement – 35 U.S.C. § 271)
39. ALO repeats and incorporates by this reference each and every
allegation contained in paragraphs 1 through 38 above, inclusive, as though set forth
in full herein.
40. Defendants, without authorization from ALO, have made, used,
offered for sale, sold, and/or imported in or into the United States, and continue to
make, use, offer for sale, sell, and/or import in or into the United States, leggings
having a design that infringes the ’731 Patent.
41. ALO has been and will continue to be irreparably harmed by
Defendants’ infringement of the ’731 Patent.
SECOND CLAIM FOR RELIEF
(Trade Dress Infringement - 15 U.S.C. § 1125(a))
42. ALO repeats and incorporates by this reference each and every
allegation contained in paragraphs 1 through 41 above, inclusive, as though fully set
forth herein. / / /
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10965.004/1200439v1 12
COMPLAINT
43. The Moto Legging Trade Dress is a unique, distinctive, non-functional
style marked by specific characteristics as described in this Complaint. Its
distinctive nature is known and sought out by consumers as a specific product
created by ALO as a result of ALO’s marketing, advertising, and promotional
efforts. In doing so, the Moto Legging Trade Dress has acquired distinctiveness
within the meaning of the Lanham Act.
44. Defendants’ manufacturing, distribution, advertising, sale and offering
for sale of their infringing products has been and is without ALO’s consent, and
constitutes designation of a term, symbol, device or combination thereof that is false
or misleading within the meaning of 15 U.S.C. § 1125(a).
45. On information and belief, Defendants are willfully and intentionally
committing the acts complained of above with full knowledge that their acts are
unlawful.
46. Defendants’ wrongful acts and conduct as alleged herein have permitted
or will permit them to generate substantial sales and profits on the strength of ALO’s
hard won advertising, sales, consumer recognition, and goodwill in connection with
the Moto Legging Trade Dress, thereby creating confusion in the marketplace with
regard to the Moto Legging Trade Dress, and irreparable injury to ALO’s reputation
in the market.
47. As a result of Defendants’ wrongful acts alleged herein, ALO has
suffered and will continue to suffer monetary damage in an amount not thus far
determined.
48. On information and belief, Defendants’ acts of trade dress infringement
in violation of the Lanham Act have caused financial injury and damages to ALO
and have been willful, making this an exceptional case within the meaning of the
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10965.004/1200439v1 13
COMPLAINT
Lanham Act, 15 U.S.C. section 1117, thereby entitling ALO to damages, attorneys’
fees, and costs.
49. Defendants’ acts and conduct constitute trade dress infringement that
has caused and, unless restrained and enjoined by this Court, will continue to cause
irreparable harm, damage, and injury to ALO’s good will and business reputation.
50. As a result of Defendants’ acts, ALO has suffered, is suffering, and
will continue to suffer irreparable injury for which ALO has no adequate remedy at
law. ALO is therefore entitled to a permanent injunction against further infringing
conduct by Defendants and an amount not as yet determined or ascertainable. At a
minimum, ALO is entitled to injunctive relief, to an accounting of Defendants’
profits, to damages, and to costs.
51. In light of the knowingly fraudulent and malicious use of confusingly
similar imitations of ALO’s Moto Legging Trade Dress, including renaming the
Infringing Product simply to avoid detection, and the common desire to deter
Defendants from similar conduct in the future, ALO is additionally entitled to
punitive damages.
THIRD CLAIM FOR RELIEF
(Unfair Competition)
52. ALO repeats and incorporates by this reference each and every
allegation contained in paragraphs 1 through 51 above, inclusive, as though set forth
in full herein.
53. Defendants’ unauthorized actions and conduct as alleged herein
constitute unfair competition under California common law, and have created and
will continue to create a likelihood of confusion and irreparable harm, damage, and
injury to ALO, including but not limited to injury to ALO's goodwill and business
reputation, unless restrained and enjoined by this Court.
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94
02
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(65
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32
7-4
20
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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25
26
10965.004/1200439v1 14
COMPLAINT
54. On information and belief, Defendants’ unfair competition with ALO
was, and is, done with full knowledge of ALO’s statutory and common law rights
and without regard to the likelihood of confusion to the public created by
Defendants’ activities.
55. Defendants have caused and, unless restrained and enjoined by this
Court, will continue to cause irreparable harm, damage and injury to ALO,
including but not limited to injury to ALO’s goodwill and business reputation.
56. As a result of Defendants’ acts, ALO has suffered, is suffering, and
will continue to suffer irreparable injury for which ALO has no adequate remedy at
law. ALO is therefore entitled to a permanent injunction against further infringing
conduct by Defendants.
PRAYER
WHEREFORE, Plaintiff prays for an order and judgment against Defendants
and requests relief as follows:
1. A determination that this action is an exceptional case pursuant to the
Patent Act;
2. A determination that Defendants have infringed the ‘731 Patent;
3. That Defendants and their officers, directors, partners, agents,
servants, employees, attorneys, confederates, and all persons acting for, with, by,
through or under them, and any others within their control or supervision, and all
others in active concert or participation with the above, be enjoined during the
pendency of this action and permanently thereafter from infringing the ‘731 Patent
in the manufacturing, marketing, sales, distribution, promotion, advertising,
identification, or in any other manner in connection with apparel in the United
States;
Case 2:18-cv-10491 Document 1 Filed 12/18/18 Page 14 of 16 Page ID #:14
TH
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94
02
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(65
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32
7-4
20
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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26
10965.004/1200439v1 15
COMPLAINT
4. That Defendants, and each of their officers, directors, partners, agents,
servants, employees, attorneys, confederates, and all persons acting for, with, by,
through or under them, and any others within their control or supervision, and all
others in active concert or participation with the above, be enjoined during the
pendency of this action and permanently thereafter from representing to anyone,
either orally or in writing, that their business or goods are affiliated with ALO in
any way or are approved by ALO;
5. For an order requiring Defendants to cease offering for sale their
infringing products, and to destroy all patterns, stencils, molds, plates, masters, or
means of creating the infringing items;
6. For an order requiring Defendants to instruct, within thirty (30) days
after the entry of any preliminary or permanent injunction, any third-party website
that carries Defendants’ infringing products to cease selling those products at the
earliest possible date;
7. For an order requiring Defendants to file with the Clerk of this Court
and serve ALO, within thirty (30) days after the entry of any preliminary or
permanent injunction, a report in writing, under oath, setting forth in detail the
manner and form in which Defendants have complied with 1 through 6 above;
8. For an award of Defendants’ profits and ALO’s damages according to
proof at trial and as detailed in this Complaint;
9. For an award of three times ALO’s damages or Defendants’ profits in
view of the intentional and willful nature of Defendants’ acts, pursuant to 35 U.S.C.
section 285 and as detailed in this Complaint;
10. For an order requiring Defendants to account for and pay to ALO all
gains, profits and advantages derived by Defendants from the unlawful activities
alleged herein, and/or as a result of unjust enrichment as detailed in this Complaint;
Case 2:18-cv-10491 Document 1 Filed 12/18/18 Page 15 of 16 Page ID #:15
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A P
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(65
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7-4
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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26
10965.004/1200439v1 16
COMPLAINT
11. For an award of punitive damages according to proof;
12. For an award of ALO’s attorneys’ fees for bringing and prosecuting
this action pursuant to 35 U.S.C. section 285 and all applicable state statutes;
13. For an award of ALO’s costs and expenses incurred in bringing and
prosecuting this action pursuant to 35 U.S.C. section 285 and all applicable state
statutes; and
14. For such further relief as this Court shall deem just and proper.
JURY DEMAND
Plaintiff ALO, LLC hereby demands trial by jury in the above entitled action
pursuant to Fed. R. Civ. P. 38(b).
Dated: December 18, 2018
THOITS LAW
By: /s/ Andrew P. Holland Andrew P. Holland Attorneys for Plaintiff ALO, LLC
Case 2:18-cv-10491 Document 1 Filed 12/18/18 Page 16 of 16 Page ID #:16
