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Andrew D. Skale (SBN 211096)
askale@mintz.com
Ben L. Wagner (SBN 243594)
bwagner@mintz.com
MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC
3580 Carmel Mountain Road, Suite 300
San Diego, CA 92130
Telephone: (858) 314-1500
Facsimile: (858) 314-1501
Rachael D. Lamkin (SBN 246066)
Rachael.lamkin@blueoceaninc.com
Associate General Counsel
Jennifer L. Becker (SBN 284222)
jennifer.becker@blueoceaninc.com
Litigation Counsel
TREEFROG DEVELOPMENTS, INC.
BLUE OCEAN ENTERPRISES
4 Embarcadero Center
401 West Mountain Avenue
San Francisco, CA 94111
Telephone: (916) 747-6091
Facsimile: (970) 494-5414
Attorneys for Plaintiff
TREEFROG DEVELOPMENTS, INC.
D/B/A LIFEPROOF
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
TreeFrog Developments, Inc., d/b/a
LifeProof,
Plaintiff,
v.
DriPadz, LLC, d/b/a Global Navigation
Authority, LLC,
Defendant.
Case No.
COMPLAINT AND DEMAND FOR
JURY TRIAL
'14CV1573 DHB AJB
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COMPLAINT
Plaintiff, TreeFrog Developments, Inc., d/b/a/ LifeProof, by and through its
attorneys, alleges against Defendant, DriPadz, LLC as follows:
THE PARTIES
1. Plaintiff, TreeFrog Developments, Inc., d/b/a LifeProof (LifeProof), is
a Delaware corporation with a principal place of business at 15110 Avenue of
Science, San Diego, California 92128.
2. Upon information and belief, Defendant, DriPadz, LLC, d/b/a Global
Navigation Authority (DriPadz), is a Florida limited liability company with a
principal place of business at 2419 Treasure Isle Drive, Palm Beach Gardens, Florida
33410.
JURISDICTION AND VENUE
3. This is a civil action seeking declaratory relief of non-infringement of a
trademark. This is also a civil action seeking a judgment of patent infringement.
4. LifeProofs trademark claims arise under the Declaratory Judgment Act,
28 U.S.C. 2201 and 2202, the Lanham Act, 15 U.S.C. 1114, 1115, and 1125(a)
and various state and common laws. These claims are based on an actual controversy
between the parties regarding DriPadzs allegations that LifeProof infringes its
alleged LIFEJACKET trademark, U.S. Trademark Registration No. 4,354,783, and
LifeProofs well-founded assertions that its use of the word LifeJacket is fair use,
lawful and does not infringe or unfairly compete with any of DriPadzs trademark
rights.
5. LifeProof has a reasonable apprehension of being sued by DriPadz
regarding these trademark claims. In May of 2014, in phone calls and email
correspondence, DriPadz alleged LifeProof infringed its purported LIFEJACKET
trademark. Throughout May and June of 2014, discussions between the
representatives continued, with DriPadz reiterating its allegations of trademark
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infringement and threatening suit in phone calls and email communications.
Accordingly, an actual controversy exists of sufficient immediacy and reality to
warrant declaratory relief under 28 U.S.C. 2201.
6. LifeProofs patent claims arise under the Patent Act, 35 U.S.C. 1, et
seq., including 35 U.S.C. 271 and 282-85.
7. This Court has jurisdiction over the subject matter of this action
pursuant to 28 U.S.C. 1331, 1332, 1338, 2201 and 2202, 15 U.S.C. 1121, and
supplemental jurisdiction under 28 U.S.C. 1367.
8. LifeProof resides in this District, and a substantial part of the events
giving rise to its claims occurred in this District. Upon information and belief,
DriPadz continuously, systematically and purposefully conducts business within this
District, including but not limited to offering and selling the products accused of
patent infringement and advertising the LIFEJACKET trademark at issue in the
declaratory judgment action in this District. DriPadz has sent electronic
correspondence to representatives of LifeProof, knowing LifeProof resides in this
District, alleging that LifeProof is infringing its trademark rights. DriPadz has
purposefully availed itself of the laws and jurisdiction of this District.
9. Personal jurisdiction and venue are proper in this district pursuant to 28
U.S.C. 1391(b) and (c) and 1400(b).
FACTUAL ALLEGATIONS
A. LifeProofs Well Known LIFEPROOF Brand and Products
10. LifeProof designs and markets protective cases for portable electronic
devices, including cell phones and tablets, that enable full functionality and
interactivity under virtually any condition encountered in daily life. The
LIFEPROOF brand name is inspired by the protection and operability of portable
electronic devices in water, mud, dirt, or snow as a result of its products.
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11. LifeProof filed for registration of its LIFEPROOF mark on July 10,
2010. Since at least as early as 2011, it has been using the LIFEPROOF mark as its
brand name to sell cases, covers and accessories for portable electronic devices.
12. LifeProof has obtained multiple federal registrations for its
LIFEPROOF mark, including without limitation U.S. Registration Nos. 4,057,201;
4,360,963; 4,519,288; and 4,520,890.
13. LifeProof has invested millions of dollars advertising the LIFEPROOF
mark in the United States and worldwide. The LIFEPROOF mark has accumulated
considerable goodwill as a result of LifeProofs immense success in the market for
protective covers and cases for portable electronic devices.
14. LifeProofs products sold under the LIFEPROOF mark have received
multiple awards, including the Mashable Choice Award 2013, the Backpacker 2013
Editors Choice Award, the Field & Stream 2013 Best of the Best Award, the CTIA
2013 Best of Show Award, the About.com 2013 Readers Choice Award, the Parent
Tested Parent Approved Award, the Impulse Gamer Editors Choice Award, the
National Geographic Gear of the Year 2012 Award, the Gear Junkie Top Gear of
2012 Award, the IFA 2012 Best Accessory Award, the CES 2012 Innovation Award,
and the Mens Journal Gear of the Year 2012 Award.
15. Consequently, consumers throughout the United States have come to
recognize the LIFEPROOF mark as LifeProofs brand and perceive it as LifeProofs
primary identity and persona in the marketplace.
16. In 2012, LifeProof began offering a LifeJacket for iPhone cell phones
and iPad tablets. LifeProofs LifeJacket is installed on top of an existing
waterproof LIFEPROOF brand case to create a floatable and waterproof iPhone or
iPad device protection system.
17. A photograph of the LifeJacket being installed on an iPhone cell
phone over an existing LIFEPROOF brand iPhone 4/4s case is shown in Figure 1.
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18. As shown in Figure 1, the LifeJacket is colored high-visibility orange.
The product also recently became available in green for the iPad Air and iPad mini
Retina tablets, although the vast majority of product on display and sold is orange.
These colors are intended to mimic the colors of conventional lifejackets for people.
19. The LifeJacket is a lifejacket for an iPhone cell phone or iPad tablet
that keeps the device floating. The name descriptively, if not generically, identifies
what the product does.
20. LifeProof promotes and sells its LifeJacket to iPhone and iPad device
users who engage in water-oriented recreational activities. All marketing and
promotion of the LifeJacket highlights the well-known, if not famous,
LIFEPROOF house mark to tell consumers who sells the product.
21. The attached Exhibit A is a print-out from the LifeProof LifeJacket
Float for iPhone 5/5s/5c case product page on the Lifeproof.com online retail store,
which illustrates how the product is marketed and the way in which the LifeJacket
term is used. As shown, the LifeJacket descriptor is next to the well-known,
famous, LIFEPROOF mark.
22. LifeProof is not using LifeJacket as an indicator of product source;
rather, LifeProof uses the term to describe a type of product that functions as a
flotation device or lifejacket for a portable electronic device.
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23. The LifeJacket is available at the Lifeproof.com online retail store for
between $39.99 and $59.99, plus taxes and shipping charges. The product is also
sold in other retail stores nationwide.
B. LifeProofs U.S. Patents
24. On September 3, 2013, the United States Patent and Trademark Office
issued U.S. Patent No. 8,526,180 (the 180 Patent), entitled Housing for Encasing
an Object Having an Electrical Connection. A copy of the 180 Patent is attached as
Exhibit B.
25. Generally, the claims of the 180 Patent are directed to an apparatus
and/or system for housing a mobile electronic device that creates a shockproof and/or
water tight protective seal.
26. The 180 Patent was duly and legally issued to LifeProof as assignee of
the inventor. LifeProof is still the owner of the entire right, title and interest in and
to the 180 Patent, which is currently in full force and effect.
27. On September 10, 2013, the United States Patent and Trademark Office
issued U.S. Patent No. 8,531,824 (the 824 Patent), entitled Housing for Encasing
an Object Having a Headphone Port. A copy of the 824 Patent is attached as
Exhibit C.
28. Generally, the claims of the 824 Patent are directed to an apparatus
and/or system for housing a mobile electronic device that creates a shockproof and/or
watertight protective seal.
29. The 824 Patent was duly and legally issued to LifeProof as assignee of
the inventor. LifeProof is still the owner of the entire right, title and interest in and
to the 824 Patent, which is currently in full force and effect.
C. DriPadzs Alleged LIFEJACKET Mark and Products
30. Upon information and belief, non-party Forward Industries, Inc. filed an
application to register the word LIFEJACKET as a trademark on November 10, 2011
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for [w]aterproof protective case for tablet computers. That application was
assigned U.S. Serial No. 85/469,808, and issued as U.S. Registration No. 4,354,783
(the 783 Registration) on June 18, 2013. A print-out of the 783 Registration from
the Trademark Status & Document Retrieval database records is attached as Exhibit
D.
31. Upon information and belief, non-party Forward Industries, Inc.
assigned all rights, title, and interest in and to the 783 Registration and
corresponding LIFEJACKET mark to DriPadz on November 5, 2013.
32. Upon information and belief, DriPadz markets two (2) products under
the alleged LIFEJACKET mark a Waterproof iPad Case and a Case with
Waterproof USB Charging Port Built In. Both are for use with iPad tablets. A
print-out from the Lifejacketcase.com online retail store, showing these two product
offerings, is attached as Exhibit E.
33. As shown in Exhibit E, the Lifejacket Waterproof iPad Case is sold on
the Lifejacketcase.com online retail store for $69.99 and the Lifejacket Case with
Waterproof USB Charging Port Built In is sold for $99.99, plus taxes and shipping
charges.
34. An image of DriPadzs Waterproof iPad Case is depicted in Figure 2.
As shown, it is a black case for iPad tablets and is not designed to resemble a
conventional life jacket.
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35. Upon information and belief, DriPadzs Waterproof iPad Case does not
bear the alleged LIFEJACKET mark. Rather, it bears the DRIPADZ mark to the
right of the screen.
36. Upon information and belief, DriPadz primarily markets its products to
boating enthusiasts as a tool for marine navigation. For example, the DriPadz
website also sells numerous software applications for use on tablets for navigational
purposes. (Exhibit F.) Upon information and belief, all or substantially all of these
applications are directed to marine navigation.
D. DriPadzs Patent Infringement
37. DriPadz has infringed and is still infringing the 180 and 824 Patents by
making, using, selling and offering for sale its tablet cases, either literally or under
the doctrine of equivalents.
38. LifeProof has complied with the notice provision of the patent statutes
by providing notice of patent ownership on its products together with LifeProofs
website address, http://www.lifeproof.com/en/ip/, accessible to the public without
charge, that associates the 180 and 824 Patents with its patented products.
39. DriPadz has actual knowledge of the 180 Patent and its infringement of
the same and, upon information and belief, actual knowledge of the 824 Patent and
its infringement of the same. Namely, on June 20, 2014, LifeProofs representative,
Mr. Tom Smith, advised DriPadzs CEO, Mr. James Klement, that one or more of
DriPadzs products infringed at least one of the claims of the 180 Patent.
40. On June 26, 2014, in response to Mr. Smiths disclosure of the
infringement concerns, Mr. Klement advised Mr. Smith that DriPadzs tablet cases
infringed the 180 Patent. Mr. Klement also informed Mr. Smith that DriPadzs
attorneys had reviewed LifeProofs patents, and determined that DriPadz infringed
other LifeProof patents. Mr. Klement advised Mr. Smith that DriPadz would not
cease its infringement because it believed the damages DriPadz would receive for
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LifeProofs alleged trademark infringement would outweigh any damages LifeProof
would receive for DriPadzs patent infringement.
41. Despite knowledge of the 180 Patent and its infringement of the same,
and, upon information and belief, knowledge of the 824 Patent and its infringement
of the same, DriPadz continues to recklessly, willfully, and/or deliberately
manufacture, distribute and sell products that infringe the 180 and 824 Patents.
CLAIM I DECLARATORY JUDGMENT OF NO TRADEMARK
INFRINGEMENT BASED ON FAIR USE UNDER 15 U.S.C. 1115
42. LifeProof repeats and incorporates by reference the allegations of
Paragraphs 1 41, as if fully set forth herein.
43. LifeProofs use of LifeJacket is fair use, and not use of a mark that
causes confusing similarity, pursuant to 15 U.S.C. 1115(b)(4), which provides for
the following defense to claims of trademark infringement:
That the use of the name, term, or device charged to be an
infringement is a use, otherwise than as a mark of a term or
device which is descriptive of and used fairly and in good faith
only to describe the goods or services of such party.
44. Lifejacket is a descriptive word that ordinarily refers to a buoyant or
inflatable jacket or vest for keeping something afloat in water.
45. LifeProofs use of LifeJacket is descriptive, and not a trademark use,
pursuant to 15 U.S.C. 1115(b)(4). LifeProofs use of the word LifeJacket
describes the goods sold by LifeProof, namely a buoyant object designed for staying
afloat. LifeProofs LifeJacket is designed to mimic the colors of conventional
lifejacketsorange and greenthereby further connecting the product to the
definition of the word lifejacket.
46. LifeProofs use of LifeJacket is descriptive, not trademark use, and is
therefore fair use and in good faith.
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CLAIM II DECLARATORY JUDGMENT OF NO TRADEMARK
INFRINGEMENT UNDER 15 U.S.C. 1114
47. LifeProof repeats and incorporates by reference the allegations of
Paragraphs 1 46, as if fully set forth herein.
48. DriPadz has accused LifeProof of infringing the LIFEJACKET mark,
alleging a likelihood of consumer confusion and damage to DriPadz. Upon
information and belief, there is no likelihood of confusion, resulting in damage to
DriPadz, with respect to LifeProofs use of the word LifeJacket.
49. Upon information and belief, the parties use different marks, on
different products, sold to different consumers, through different channels of trade at
different price points.
50. DriPadzs mark and LifeProofs product descriptor are different.
DriPadzs mark is LIFEJACKET, used in connection with cases for tablets.
LifeProofs products accused of trademark infringement are identified as
LIFEPROOF brand products, and the LifeJacket is a product descriptor for an
accessory sold by LifeProof.
51. The parties products are different. DriPdazs products marketed and
sold under its alleged LIFEJACKET mark are cases for tablets. LifeProofs
LifeJacket accessory is not a case, as that term is used by both parties to describe
their respective products. Rather, LifeProofs LifeJacket is installed on top of an
existing LIFEPROOF brand waterproof case to create a waterproof and floatable
iPhone or iPad protection system.
52. LifeProofs LifeJacket is manufactured from a hard foam material and
colored high-visibility orange or green to mimic the look and feel of a conventional
lifejacket worn by people. Upon information and belief, DriPadzs tablet cases are
neither made of hard foam nor colored like a conventional lifejacket.
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53. Upon information and belief, the parties products are offered at
different price points. Upon information and belief, LifeProofs products retail
between $39.99 and $59.99 and DriPadzs products retail between $69.99 and
$99.99.
54. Upon information and belief, the parties do not promote their respective
lifejacket products to the same class of consumers. Upon information and belief,
DriPadz target marine enthusiasts using tablets for navigation.
55. LifeProofs use of the LifeJacket descriptor is not likely to cause
confusion or mistake and/or to deceive the public with respect to DriPadzs alleged
LIFEJACKET mark, and LifeProof has not engaged in acts of trademark
infringement in violation of 15 U.S.C. 1114.
CLAIM III DECLARATORY JUDGMENT OF NO FALSE DESIGNATION
OF ORIGIN UNDER 15 U.S.C. 1125
56. LifeProof repeats and incorporates by reference the allegations of
Paragraphs 1 55, as if fully set forth herein.
57. DriPadz has accused LifeProof of using LifeJacket in a manner that is
likely to cause confusion by the public as to the origin of LifeProofs accessories,
thereby allegedly damaging DriPadz. Upon information and belief, there is no
likelihood of confusion, resulting in damage to DriPadz, with respect to LifeProofs
use of LifeJacket.
58. LifeProof has not used, on or in connection with goods, a mark which is
likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of LifeProof with DriPadz, or as to the origin,
sponsorship, or approval of LifeProofs goods, or commercial activities, by DriPadz.
59. Upon information and belief, LifeProof is not competing unfairly or
causing any false designation of origin by selling and advertising a LifeJacket
accessory.
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60. LifeProof has not engaged in any acts that constitute a false designation
of origin and misrepresentation in violation of 15 U.S.C. 1125(a).
CLAIM IV DECLARATORY JUDGMENT OF NO STATE AND
COMMON LAW UNFAIR COMPETITION OR TRADEMARK
INFRINGEMENT
61. LifeProof repeats and incorporates by reference the allegations of
Paragraphs 1 60, as if fully set forth herein.
62. DriPadz has accused LifeProof of using LifeJacket in a manner that is
likely to cause confusion by the public as to the origin of LifeProofs accessories,
thereby allegedly damaging DriPadz. Upon information and belief, there is no
likelihood of confusion, resulting in damage to DriPadz, with respect to LifeProofs
use of LifeJacket.
63. LifeProof has not used, on or in connection with goods, a mark which is
likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of LifeProof with DriPadz, or as to the origin,
sponsorship, or approval of LifeProofs goods, or commercial activities, by DriPadz.
64. Upon information and belief, LifeProof is not competing unfairly or
causing any false designation of origin by selling and advertising a LifeJacket
accessory. LifeProofs use of lifejacket is descriptive, and fair use.
65. LifeProofs use of the LifeJacket descriptor is not likely to cause
confusion or mistake and/or to deceive the public with respect to DriPadz, and
LifeProof has not engaged in any acts that constitute a false designation of origin,
unfair trade practices or misrepresentation in violation of any state or common law.
CLAIM V INFRINGEMENT OF U.S. PATENT 8,526,180
66. LifeProof repeats and incorporates by reference the allegations of
Paragraphs 1 65, as if fully set forth herein.
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67. LifeProof is the assignee of the 180 Patent and continues to hold all
rights and interest in the 180 Patent.
68. Upon information and belief, DriPadz has infringed and continues to
infringe the 180 Patent, either literally or under the doctrine of equivalents.
DriPadzs infringing activities in the United States and this District include the
manufacture, use, sale, and/or offer for sale of tablet cases that satisfy all the
elements of one or more claims of the 180 Patent, including at least Claim 1.
69. LifeProof has been damaged by DriPadzs infringement of the 180
Patent in an amount to be proven at trial and will continue to be damaged in the
future unless DriPadz is permanently enjoined from infringing the 180 Patent.
70. DriPadz has actual knowledge of the 180 Patent and that its use,
manufacture, sale, and/or offer for sale of its tablet cases infringes the 180 Patent, by
LifeProofs compliance with the notice provisions of the patent statutes and direct
correspondence from LifeProof.
71. DriPadzs infringement of the 180 Patent is now and has been willful
and will continue unless enjoined by the Court.
72. By reason of DriPadzs willful infringement of the 180 Patent,
LifeProof is entitled to recover actual damages, treble damages, attorneys fees, and
the costs of this litigation pursuant to 35 U.S.C. 284 & 285 and injunctive relief
pursuant to 35 U.S.C. 283.
CLAIM VI INFRINGEMENT OF U.S. PATENT 8,531,824
73. LifeProof repeats and incorporates by reference the allegations of
Paragraphs 1 72, as if fully set forth herein.
74. LifeProof is the assignee of the 824 Patent and continues to hold all
rights and interest in the 824 Patent.
75. Upon information and belief, DriPadz has infringed and continues to
infringe the 824 Patent, either literally or under the doctrine of equivalents.
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DriPadzs infringing activities in the United States and this District include the
manufacture, use, sale, and/or offer for sale of tablet cases that satisfy all the
elements of one or more claims of the 824 Patent, including at least Claim 28.
76. LifeProof has been damaged by DriPadzs infringement of the 824
Patent in an amount to be proven at trial and will continue to be damaged in the
future unless DriPadz is permanently enjoined from infringing the 824 Patent.
77. DriPadz has constructive knowledge of the 824 Patent by LifeProofs
compliance with the notice provisions of the patent statutes, and, upon information
and belief, actual knowledge of the 824 Patent based on DriPadzs admission that it
reviewed the LifeProof patents.
78. By reason of DriPadzs willful infringement of the 824 Patent,
LifeProof is entitled to recover actual damages, treble damages, attorneys fees, and
the costs of this litigation pursuant to 35 U.S.C. 284 & 285 and injunctive relief
pursuant to 35 U.S.C. 283.
PRAYER FOR RELIEF
WHEREFORE, LifeProof respectfully requests relief as follows:
1. Declaring that LifeProofs use of the word LifeJacket does not violate
any federal, state, or common law rights of DriPadz, including a declaration that:
(A) LifeProofs use of the LifeJacket descriptor is a fair use of
DriPadzs LIFEJACKET mark,
(B) LifeProofs use of the LifeJacket descriptor does not infringe
DriPadzs alleged LIFEJACKET mark,
(C) LifeProofs use of the LifeJacket descriptor does not constitute
unfair competition or false designation of origin;
2. A judgment that the 180 and 824 Patents are valid and enforceable;
3. A judgment that DriPadz is infringing and/or has infringed the 180 and
824 Patents, and that such infringement is willful and deliberate;
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4. A permanent injunction providing that DriPadz, its officers, agents,
servants, and employees and those persons in active concert or participation with any
of them be enjoined from further infringing the 180 and 824 Patents in accordance
with 35 U.S.C. 283;
5. An award of compensatory damages to LifeProof, including but not
limited to, lost profits, but in no event less than a reasonable royalty, and that such
damages be trebled for the willful, deliberate, and intentional infringement by
DriPadz, as alleged herein, in accordance with 35 U.S.C. 284 and 285, and that
LifeProof be awarded interest on the damages so computed;
6. An award to LifeProof of its costs, including expert witness fees, and
reasonable attorney fees, incurred in connection with the patent and trademark claims
in this action; and
7. Granting such other and further relief as this Court deems just and
proper.
DEMAND FOR JURY TRIAL
LifeProof hereby demands a trial by jury of all issues so triable.
Dated: July 1, 2014 MINTZ LEVIN COHN FERRIS GLOVSKY &
POPEO
By: s/Andrew D. Skale
Andrew D. Skale, Esq.
Andrew D. Skale (SBN 211096)
Ben L. Wagner (SBN 243594)
MINTZ LEVIN COHN FERRIS GLOVSKY
AND POPEO PC
Rachael D. Lamkin (SBN 246066)
Jennifer L. Becker (SBN 284222)
TREEFROG DEVELOPMENTS, INC.
BLUE OCEAN ENTERPRISES
Attorneys for Plaintiff
TREEFROG DEVELOPMENTS, INC.
D/B/A LIFEPROOF
31622906v.1