Deckers v. JC Penneys - UGG Boot Second Amended Complaint PDF

Case 2:14-cv-02565-ODW-MAN Document 37 Filed 01/06/15 Page 1 of 24 Page ID #:385
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Brent H. Blakely (SBN 157292)

bblakely@blakelylawgroup.com
Cindy Chan (SBN 247495)
cchan@blakelylawgroup.com
BLAKELY LAW GROUP
1334 Parkview Avenue, Suite 280
Manhattan Beach, California 90266
Telephone: (310) 546-7400
Facsimile: (310) 546-7401
Attorneys for Plaintiff
Deckers Outdoor Corporation
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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DECKERS OUTDOOR
CORPORATION, a Delaware
Corporation,
)
)
)
)
Plaintiff,
)
v.
)
)
J.C. PENNEY CORPORATION, INC., a )
Delaware Corporation; CALSON
)
INVESTMENT LIMITED, a Foreign
)
Business Entity; and DOES 1-10,
)
inclusive,
)
)
)
Defendants.
)
)
)
)
)
CASE NO. 14-CV-02565-ODW (MANx)

PLAINTIFFS SECOND AMENDED
COMPLAINT FOR DAMAGES AND
EQUITABLE RELIEF:
1. TRADE DRESS INFRINGEMENT;
2. FEDERAL UNFAIR
COMPETITION;
3. PATENT INFRINGEMENT;
4. TRADE DRESS INFRINGEMENT
UNDER CALIFORNIA COMMON
LAW
JURY TRIAL DEMANDED
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Plaintiff Deckers Outdoor Corporation for its claims against Defendants J.C.
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Penney Company, Inc. and Calson Investment Limited (collectively Defendants),
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respectfully alleges as follows:

JURISDICTION AND VENUE
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1.
Plaintiff files this action against Defendants for trade dress infringement
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and unfair competition under the Lanham Trademark Act of 1946, 15 U.S.C. 1051 et
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seq. (the Lanham Act), patent infringement arising under the patent laws of the
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United States, and for related claims under the statutory and common law of the state
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PLAINTIFFS SECOND AMENDED COMPLAINT
of California. This Court has subject matter jurisdiction over the claims alleged in this
action pursuant to 28 U.S.C. 1331, 1338.
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2.
This Court has personal jurisdiction over Defendants because Defendants
do business within this judicial district.

3.
This action arises out of wrongful acts by Defendants within this judicial
district and Plaintiff is located and has been injured in this judicial district by
Defendantsalleged wrongful acts. Venue is proper in this district pursuant to 28
U.S.C. 1391 because the claims asserted arise in this district.

THE PARTIES
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4.
Plaintiff Deckers Outdoor Corporation (Deckers) is a corporation
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organized and existing under the laws of the state of Delaware with an office and
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principal place of business in Goleta, California. Deckers designs and markets
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footwear identified by its famous UGG trademark and other famous trademarks.
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Upon information and belief, Defendant J.C. Penney Corporation, Inc.
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(JC Penney) is a corporation duly organized and existing under the laws of the state
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of Delaware with an office and principal place of business at 6501 Legacy Drive,
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Plano, Texas 75024.
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Upon information and belief, Defendant Calson Investment Limited is a
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foreign business entity with an office and principal place of business in this judicial
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district as well as in St. Louis, Missouri.
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7.
Deckers is unaware of the names and true capacities of Defendants,
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whether individual, corporate and/or partnership entities named herein as DOES 1
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through 10, inclusive, and therefore sues them by their fictitious names. Deckers will
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seek leave to amend this complaint when their true names and capacities are
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ascertained. Deckers is informed and believes and based thereon alleges that said
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Defendants and DOES 1 through 10, inclusive, are in some manner responsible for the
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wrongs alleged herein, and that at all times referenced each was the agent and servant
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of the other Defendants and was acting within the course and scope of said agency and
employment.
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Deckers is informed and believes, and based thereon alleges, that at all
relevant times herein, Defendants and DOES 1 through 10, inclusive, knew or
reasonably should have known of the acts and behavior alleged herein and the damages
caused thereby, and by their inaction ratified and encouraged such acts and behavior.
Deckers further alleges that Defendants and DOES 1 through 10, inclusive, have a
non-delegable duty to prevent or not further such acts and the behavior described
herein, which duty Defendants and DOES 1 though 10, inclusive, failed and/or refused
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to perform.
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
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A.
DeckersUGG Brand
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Deckers has been engaged in the design, distribution, marketing, offering
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for sale, and sale of footwear since 1975. Deckers is currently the owner of eight
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brands of footwear that are offered nationwide and worldwide - UGG, Teva,
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Sanuk, Tsubo, Ahnu, Hoka One One, Mozo, and
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10.
DeckersUGG brand remains one of the most recognized and relevant
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comfort shoe brands in the industry. Since 1978, when the UGG brand was founded,
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the popularity of UGG boots has steadily grown across the nation and even the
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globe. The UGG brand has always been and remains highly coveted by consumers.
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This commitment to quality has helped to propel the UGG brand to its current,
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overwhelming level of popularity and cemented its status as a luxury brand.
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11.
It has now been nearly fifteen years since UGG boots were first featured
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on Oprahs Favorite Things in the year 2000, and Oprah emphatically declared on
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national television how much she LOOOOOVES her UGG boots.The popularity of
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UGG brand footwear has grown exponentially since then with celebrities including
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Kate Hudson and Sarah Jessica Parker among a myriad of others regularly donning
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them. UGG sheepskin boots have become a high fashion luxury item and can be
found on fashion runways around the world.
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DeckersUGG products are distributed and sold to consumers through
authorized retailers throughout the United States at point of sale and on the Internet,
including through its UGG Concept Stores and website www.uggaustralia.com.
B.
DefendantsInfringement of the Bailey Button Boot
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The present lawsuit arises from Defendantsmanufacture, distribution,
advertisement, marketing, offering for sale, and/or sale of footwear that infringe upon
DeckersUGG boot designs, to which Deckers owns design patents and/or trade
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dress rights, including rights to the UGG Bailey Buttonboot (Infringing
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Products), exemplars of which are shown in Exhibit A attached hereto.
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Upon information and belief, Deckers hereon avers that Defendant JC
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Penney is a retailer of various types of consumer products, ranging from apparel,
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footwear, and home merchandise. Products from said JC Penney are available to
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consumers nationwide and can be purchased at its retail stores, some of which are
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located in this judicial district, or on its website (www.jcpenney.com).
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15.
Upon information and belief, Defendant Calson Investment Limited has
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designed, manufactured and/or caused to be manufactured, distributed, offered for sale,
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and/or sold Infringing Products to various wholesalers and retailers nationwide,
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including JC Penney.
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Indeed, Infringing Products have been offered for sale and/or sold by JC
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Penney and have been made available for purchase to consumers in this judicial
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district.
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Upon information and belief, Defendants may have sold additional
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products that may infringe upon Deckersdesign patents and trade dresses. Deckers
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may seek leave to amend as additional information becomes available through
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discovery.
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Upon information and belief, Defendant JC Penney is a national
department store retail chain engaged in the sale of various consumer products,
including apparel, home furnishings, and footwear.
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Given the widespread popularity and recognition of DeckersBailey
Button styles, Deckers avers and hereon alleges that Defendants had knowledge of
Deckersrights to the Bailey Button Boot styles and have intentionally utilized said
styles on their own products in an effort to pass them off as if they originated, are
associated with, are affiliated with, are sponsored by, are authorized by, and/or are
approved by Deckers.
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Deckers is informed and believes and hereon alleges that Defendants are
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competitors and have copied DeckersBailey Button boot styles in an effort to exploit
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Deckersreputation in the market.
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Deckers is informed and believes and hereon alleges that Defendants have
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acted in bad faith and that Defendantsacts have misled and confused and were
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intended to cause confusion, or to cause mistake, or to deceive as to the affiliation,
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connection, or association of DefendantsInfringing Products with Deckers, or as to
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the origin, sponsorship, or approval of DefendantsInfringing Products by Deckers.
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FIRST CLAIM FOR RELIEF
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(Trade Dress Infringement - 15 U.S.C. 1125(a))
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Deckers incorporates herein by reference the averments of the preceding
paragraphs as though fully set forth herein.

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Some of the more widely recognized styles within the UGG family of
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sheepskin boots are the Bailey Buttonstyles. The Bailey Button styles (examples of
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which are shown below) are characterized, inter alia, by
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Classic suede boot styling made famous by the UGG brand;
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Overlapping of front and rear panels on the lateral side of the boot shaft;
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Curved top edges on the overlapping panels;
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boot shaft; and
Exposed fleece-type lining edging the overlapping panels and top of the
One or more buttons (depending on the height of the boot) prominently
featured on the lateral side of the boot shaft adjacent the overlapping panels
(hereinafter Bailey Button Boot Trade Dress).
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The Bailey Button Boot Trade Dress was an original design by Deckers
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and the elements thereof are nonfunctional and their distinctive quality has achieved a
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high degree of consumer recognition and secondary meaning, which serves to identify
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Deckers as the source of high-quality goods.
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Introduced in 2009, the Bailey Button Boot Trade Dress has continuously
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appeared on UGG boots, which have been featured on Deckersadvertising and
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promotional materials as well as in the trade publications set forth above. Deckers has
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extensively used and promoted the Bailey Button Boot Trade Dress such that it is
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closely identified with the UGG brand and has gained widespread public recognition.
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Deckers has spent substantial time, effort, and money in designing,
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developing, advertising, promoting, and marketing the UGG brand and its line of
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footwear embodying the Bailey Button Boot Trade Dress. Deckersefforts have been
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successful and Deckers has sold a substantial amount of UGG boots bearing the
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Bailey Button Boot Trade Dress.
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Due to its long use, extensive sales, and significant advertising and
promotional activities, DeckersUGG Trademark and Bailey Button Boot Trade

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Dress have achieved widespread acceptance and recognition among the consuming
public and trade throughout the United States.
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Furthermore, the Bailey Button Boot Trade Dress has been featured in
connection with various celebrities, has received a large volume of unsolicited media
intention, and has graced the pages of many popular magazines nationwide and
internationally.
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The Infringing Products produced, distributed, advertised and offered for
sale by Defendants bear nearly identical reproductions of the Bailey Button Boot Trade
Dress, such as to cause a likelihood of confusion as to the source, sponsorship or
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approval of Defendantsproducts.
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Defendantsuse of DeckersBailey Button Boot Trade Dress is without
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Deckerspermission or authority and in total disregard of Deckersrights to control its
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intellectual property.
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Defendantsuse of DeckersBailey Button Boot Trade Dress is likely to
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lead to and result in confusion, mistake or deception, and is likely to cause the public
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to believe that Defendantsproducts are produced, sponsored, authorized, or licensed
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by or that are otherwise connected or affiliated with Deckers, all to the detriment of
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Deckers.
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Deckers has no adequate remedy at law.
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In light of the foregoing, Deckers is entitled to injunctive relief
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prohibiting Defendants from using DeckersBailey Button Boot Trade Dress, or any
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designs confusingly similar thereto, and to recover all damages, including attorneys
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fees, that Deckers has sustained and will sustain, and all gains, profits and advantages
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obtained by Defendants as a result of their infringing acts alleged above in an amount
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not yet known, as well as the costs of this action.
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SECOND CLAIM FOR RELIEF
(Federal Unfair Competition)
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34.

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Defendantsuse of DeckersBailey Button Boot Trade Dress is without
Deckerspermission or authority and in total disregard of Deckersrights to control its
trade dress.
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Defendantsinfringing activities are likely to lead to and result in
confusion, mistake or deception, and are likely to cause the public to believe that
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Deckers has produced, sponsored, authorized, licensed or is otherwise connected or
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affiliated with Defendantscommercial and business activities, all to the detriment of
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Deckers.
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Upon information and belief, Defendantsacts are deliberate and intended
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to confuse the public as to the source of Defendantsgoods or services and to injure
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Deckers and reap the benefits of the good will associated with DeckersBailey Button
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Boot Trade Dress.
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As a direct and proximate result of Defendantswillful and unlawful
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conduct, Deckers has been injured and will continue to suffer injury to its business and
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reputation unless Defendants are restrained by this Court from infringing on Deckers
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Bailey Button Boot Trade Dress.
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prohibiting Defendants from using DeckersBailey Button Boot Trade Dress, or any
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designs confusingly similar thereto, and to recover all damages, including attorneys
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fees, that Deckers has sustained and will sustain, and all gains, profits and advantages
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obtained by Defendants as a result of their infringing acts alleged above in an amount
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not yet known, as well as the costs of this action.
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THIRD CLAIM FOR RELIEF
(Patent Infringement 35 U.S.C. 271)
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Deckers is the owner of numerous design patents to the various styles of
footwear it offers under its UGG brand. Among these include but are not limited to
the Bailey Buttonboot (U.S. Patent No. D599,999 issued on September 15, 2009), a
true and correct copy of which is attached hereto and incorporated herein as Exhibit B
(hereinafter 999 Patent).
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43.
Deckers is the owner by assignment of all right, title and interest in and to
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the 999 Patent.
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Defendants have knowingly and intentionally manufactured, caused to be
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produced, distributed, advertised, marketed, offered for sale, and/or sold footwear that
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is substantially similar to the 999 Patent in direct violation of 35 U.S.C. 271.
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45.
Defendants aforesaid infringing activities is without Deckers
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permission or authority and is in total disregard of Deckersright to control its
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intellectual property.
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46.
As a direct and proximate result of Defendantsinfringing conduct,
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Deckers has been injured and will continue to suffer injury to its business and
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reputation unless Defendants are restrained by this Court from infringing Deckers
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999 Patent.
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Defendantsacts have damaged and will continue to damage Deckers, and

48.
Deckers marks all footwear products embodying the design of the 999
Patent with Pat. No. 599,999on a product label in compliance with 35 U.S.C. 287.
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Given the widespread popularity and recognition of DeckersBailey
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Button Boot style and the patent notice provided on the products themselves, Deckers
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avers and hereon alleges that Defendants had knowledge of Deckersrights to the
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Bailey Button Design Patents and have intentionally copied said designs on their own
products in an effort to pass them off as if they originated, are associated with, are
affiliated with, are sponsored by, are authorized by, and/or are approved by Deckers.
50.
Deckers is informed and believes and hereon alleges that Defendants are
competitors and have copied DeckersBailey Button Boot style in an effort to exploit
Deckersreputation in the market.
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prohibiting Defendants from infringing the 999 Patent and to recover from
Defendants all damages, including attorneysfees, that Deckers has sustained and will
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sustain as a result of such infringing acts, and all gains, profits and advantages
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obtained by Defendants as a result thereof, in an amount to be determined, which
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amount can be trebled under 35 U.S.C. 284.
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FOURTH CLAIM FOR RELIEF
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(Trade Dress Infringement Under California Common Law)
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53.
Defendantsinfringement of the Bailey Button Boot Trade Dress
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constitutes common law trade dress infringement in violation of the common law of
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the state of California.
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54.
Defendantsunauthorized use of the Bailey Button Boot Trade Dress has
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caused and is likely to cause confusion as to the source of Defendantsproducts, all to
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the detriment of Deckers.
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55.
Defendantsacts are willful, deliberate, and intended to confuse the public
and to injure Deckers.

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Deckers has no adequate remedy at law to compensate it fully for the
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damages that have been caused and which will continue to be caused by Defendants
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infringing conduct, unless they are enjoined by this Court.
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57.
The conduct herein complained of was extreme, outrageous, and was
inflicted on Deckers in reckless disregard of Deckersrights. Said conduct was
despicable and harmful to Deckers and as such supports an award of exemplary and
punitive damages in an amount sufficient to punish and make an example of
Defendants, and to deter them from similar such conduct in the future.
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prohibiting Defendants from infringing the Bailey Button Boot Trade Dress, and to
recover all damages, including attorneysfees, that Deckers has sustained and will
sustain, and all gains, profits and advantages obtained by Defendants as a result of
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their infringing acts alleged above in an amount not yet known, and the costs of this
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action.
PRAYER FOR RELIEF
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WHEREFORE, Plaintiff Deckers Outdoor Corporation respectfully prays for

judgment against Defendants, as follows:
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1.
A Judgment that Defendants have infringed Deckers999 Patent;
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2.
A Judgment that Defendants have infringed DeckersBailey Button Boot
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Trade Dress in violation of 15 U.S.C. 1125 and that said infringement was willful;
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An order granting temporary, preliminary and permanent injunctive relief
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restraining and enjoining Defendants, their agents, servants, employees, officers,
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associates, attorneys, and all persons acting by, through, or in concert with any of
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them, are hereby temporarily, preliminarily, and permanently enjoined from using
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DeckersBailey Button Boot Trade Dress, the 999 Patent, or any designs
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confusingly/substantially similar thereto, including, but not limited to:
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a.
manufacturing, importing, advertising, marketing, promoting,
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supplying, distributing, offering for sale, or selling the Infringing Products or any other
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products which bear DeckersBailey Button Boot Trade Dress or any designs
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confusingly similar thereto and/or products bearing designs that infringe upon the 999
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Patent and/or the overall appearance thereof;

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b.
engaging in any other activity constituting unfair competition with
Deckers, or acts and practices that deceive consumers, the public, and/or trade,
including without limitation, the use of designations and design elements used or
owned by or associated with Deckers; and
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committing any other act which falsely represents or which has the
effect of falsely representing that the goods and services of Defendants are licensed by,
authorized by, offered by, produced by, sponsored by, or in any other way associated
with Deckers;
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Ordering Defendants to recall from any distributors and retailers and to
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deliver to Deckers for destruction or other disposition all remaining inventory of all
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Infringing Products and related items, including all advertisements, promotional and
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marketing materials therefore, as well as means of making same;
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5.
Ordering Defendants to file with this Court and serve on Deckers within
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thirty (30) days after entry of the injunction a report in writing, under oath setting forth
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in detail the manner and form in which Defendants have complied with the injunction;
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6.
Ordering an accounting by Defendants of all gains, profits and advantages
derived from their wrongful acts;

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Awarding Deckers all of Defendantsprofits and all damages sustained by
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Deckers as a result of Defendantswrongful acts, and such other compensatory
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damages as the Court determines to be fair and appropriate;
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8.
Increasing the damages up to three times the amount found or assessed
under 35 U.S.C. 284;

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Awarding treble damages in the amount of Defendantsprofits or
Deckersdamages, whichever is greater, for willful infringement;

10.
Finding that this is an exceptional case under 35 U.S.C. 285 and 15
U.S.C. 1117 and awarding attorneysfees there under;

11.
Awarding applicable interest, costs, disbursements and attorneysfees;
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Awarding Deckerspunitive damages in connection with its claims under
California law; and

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Such other relief as may be just and proper.
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Dated:
January 6, 2015
BLAKELY LAW GROUP
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By:
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DEMAND FOR JURY TRIAL
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/s/ Cindy Chan____________________

Brent H. Blakely
Cindy Chan
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff Deckers
Outdoor Corporation hereby demands a trial by jury as to all claims in this litigation.
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Dated:
January 6, 2015
BLAKELY LAW GROUP
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By:
/s/ Cindy Chan____________________

Brent H. Blakely
Cindy Chan
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EXHIBIT A
==NQ==
==NR==
EXHIBIT B
==NS==
==
==
==NT==
==
==
==NU==
==
==
==NV==
==
==
==OM==
==
==
==ON==
==
==OO==

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Case 2:14-cv-02565-ODW-MAN Document 37 Filed 01/06/15 Page 1 of 24 Page ID #:385

Brent H. Blakely (SBN 157292)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CASE NO. 14-CV-02565-ODW (MANx)

Penney Company, Inc. and Calson Investment Limited (collectively Defendants),

respectfully alleges as follows:

Case 2:14-cv-02565-ODW-MAN Document 37 Filed 01/06/15 Page 2 of 24 Page ID #:386

action pursuant to 28 U.S.C. 1331, 1338.

This Court has personal jurisdiction over Defendants because Defendants

do business within this judicial district.

Defendantsalleged wrongful acts. Venue is proper in this district pursuant to 28

U.S.C. 1391 because the claims asserted arise in this district.

Plaintiff Deckers Outdoor Corporation (Deckers) is a corporation

principal place of business in Goleta, California. Deckers designs and markets

Upon information and belief, Defendant J.C. Penney Corporation, Inc.

Plano, Texas 75024.

Upon information and belief, Defendant Calson Investment Limited is a

district as well as in St. Louis, Missouri.

Deckers is unaware of the names and true capacities of Defendants,

whether individual, corporate and/or partnership entities named herein as DOES 1

Case 2:14-cv-02565-ODW-MAN Document 37 Filed 01/06/15 Page 3 of 24 Page ID #:387

Deckers has been engaged in the design, distribution, marketing, offering

Sanuk, Tsubo, Ahnu, Hoka One One, Mozo, and

DeckersUGG brand remains one of the most recognized and relevant

overwhelming level of popularity and cemented its status as a luxury brand.

Case 2:14-cv-02565-ODW-MAN Document 37 Filed 01/06/15 Page 4 of 24 Page ID #:388

found on fashion runways around the world.

DeckersUGG products are distributed and sold to consumers through

including through its UGG Concept Stores and website www.uggaustralia.com.

DefendantsInfringement of the Bailey Button Boot

The present lawsuit arises from Defendantsmanufacture, distribution,

dress rights, including rights to the UGG Bailey Buttonboot (Infringing

Products), exemplars of which are shown in Exhibit A attached hereto.

Upon information and belief, Deckers hereon avers that Defendant JC

Penney is a retailer of various types of consumer products, ranging from apparel,

located in this judicial district, or on its website (www.jcpenney.com).

Upon information and belief, Defendant Calson Investment Limited has

designed, manufactured and/or caused to be manufactured, distributed, offered for sale,

and/or sold Infringing Products to various wholesalers and retailers nationwide,

Upon information and belief, Defendants may have sold additional

may seek leave to amend as additional information becomes available through

Case 2:14-cv-02565-ODW-MAN Document 37 Filed 01/06/15 Page 5 of 24 Page ID #:389

Upon information and belief, Defendant JC Penney is a national

including apparel, home furnishings, and footwear.

Given the widespread popularity and recognition of DeckersBailey

Deckersreputation in the market.

intended to cause confusion, or to cause mistake, or to deceive as to the affiliation,

connection, or association of DefendantsInfringing Products with Deckers, or as to

the origin, sponsorship, or approval of DefendantsInfringing Products by Deckers.

FIRST CLAIM FOR RELIEF

(Trade Dress Infringement - 15 U.S.C. 1125(a))

Deckers incorporates herein by reference the averments of the preceding

paragraphs as though fully set forth herein.

which are shown below) are characterized, inter alia, by

Classic suede boot styling made famous by the UGG brand;

Curved top edges on the overlapping panels;

Case 2:14-cv-02565-ODW-MAN Document 37 Filed 01/06/15 Page 6 of 24 Page ID #:390

boot shaft; and

One or more buttons (depending on the height of the boot) prominently

(hereinafter Bailey Button Boot Trade Dress).

Deckers as the source of high-quality goods.