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) Case No. __________________
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Jury Trial Demanded
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Plaintiff,
vs.
W STERNOFF LLC, d/b/a BODYGLIDE,
Serve registered agent:
DWTR&J CORP.
12901 Third Ave. Ste. 2200
Seattle, WA 98101
Defendant.
good standing, operating from its principal place of business in the State of Missouri.
2.
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This action for trade dress infringement, unfair competition, and deceptive
marketing arises under the Trademark Act of 1946 (the Lanham Act or the Act), 15
U.S.C. 1051 et. seq., and the Common Law of the State of Missouri.
5.
this cases arises under the laws of the United States, for which
this case arises under the Lanham Act, for which jurisdiction is
this
case
arises
under
an[]
Act
of Congress
relating
28 U.S.C. 1367.
7.
This Court also has diversity jurisdiction under 28 U.S.C. 1332, in that
there is complete diversity of citizenship between the parties and the amount of
controversy exceeds the sum or value of $75,000.00, exclusive of costs.
8.
Venue is proper in this Court under 28 U.S.C. 1391, in that this Court
has personal jurisdiction over Defendant, and a substantial part of the events giving rise
to the claims asserted in this action arose in the Western District of Missouri.
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COUNT I:
TRADE DRESS INFRINGEMENT UNDER
SECTION 43(A) OF THE LANHAM ACT, 15 U.S.C. 1125(A)(1)
9.
numerous products for cyclists and other athletes since approximately 1993.
11.
Pacelines product lines include the Chamois Buttr product line, which
includes such products as Chamois Buttr Original, Chamois Buttr Eurostyle, and
Chamois Buttr Her (the Chamois Buttr Products).
12.
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14.
also acquired secondary meaning, and is closely associated with, and an indication of, the
source of origin of the Chamois Buttr Products.
16.
not functional, and serves only to identify individual products as belonging to Pacelines
Chamois Buttr product line.
Defendants Product
17.
marketed under its Glide brand, including its Original Anti-Blister, Anti-Chafing Balm,
Skin Protection Balm for Her, Skin Glide Balm, and Foot Glide Blister Resister
Balm.
18.
For each of the products listed in the previous paragraph, Defendant uses
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19.
21.
Unlike its other Glide products, Defendants Chamois Glide does not use
23.
Glide imitates the purple-and-yellow color scheme of the Chamois Buttr Products, and
is confusingly similar.
24.
hasin connection with a good or container for goodsused symbols, false designations
of origin, or false or misleading representations of fact, which are likely to cause
confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
association of Chamois Glide with one or more Chamois Buttr Products.
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25.
packaging is evident by the departure from the white-and-solid-color scheme used for
Defendants other Glide products, and adopting the purple-and-yellow color scheme for
Chamois Glide only.
26.
Glide product is likely to cause confusion and mistake in the minds of the purchasing
public, and, in particular, falsely creates the impression that the Chamois Glide product
is authorized, sponsored, endorsed, licensed, or approved by Paceline, when in fact it is
not.
27.
Glide has already caused actual confusion and mistake in the minds of the purchasing
public, as the packaging for Chamois Glide products was brought to the attention of
Paceline at a recent trade show, where others expressed confusion as to the existence of a
connection or affiliation with Chamois Glide.
28.
Paceline has demanded that Defendant cease and desist its infringement of
Pacelines trade dress, but Defendant refused and continues to refuse to comply.
30.
significant risk to Pacelines sales, goodwill, and reputation with both the purchasing
public and persons in positions to influence purchasing decisions.
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31.
confusingly similar trade dress, Paceline will suffer irreparable harm through lost sales,
lost benefits of its promotional materials, lost good will, and other injury to Pacelines
relations with present and prospective customers.
32.
upon the reputation and good will of Paceline and its Chamois Buttr Products.
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37.
Paceline has demanded that Defendant cease and desist its unfair
competition and deceptive marketing practices, but Defendant has refused and continues
to refuse to comply.
38.
competition and deceptive marketing practices, Paceline will suffer irreparable harm
through lost sales, lost benefits of its promotional materials, lost good will, and other
injury to Pacelines relations with present and prospective customers.
39.
Temporarily
restrain,
and
preliminarily
and
permanently enjoin
Defendant, its agents, servants, and employees from infringing Pacelines trade dress;
from further unfair competition; from falsely designating the origin of Defendants
product; and, specifically from continued use of a purple-and-yellow color scheme in of
packaging in connection with its Chamois Glide product;
2.
Require Defendant to account for all gains, profits and advantages derived
from its infringement, unfair competition, and deceptive marketing practices; and order
that all gains, profits, and advantages derived by Defendant from its acts of infringement
and other violations of law be deemed to be held in constructive trust for the benefit of
Plaintiff;
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4.
of damages sustained by Plaintiff, and the cost of this action, including attorney fees, as
provided by 15 U.S.C. 1117;
5.
the Court;
6.
7.
Grant to Plaintiff such further relief as the may be equitable and just.
DEMAND FOR JURY TRIAL
Demand for jury trial on all issues so triable is hereby made under FED. R. CIV. P.
38(b) and L.R. 38.1.
Respectfully Submitted,
LATHROP & GAGE LLP
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