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Plaintiff,
vs.
Defendant.
) No.
)
) COMPLAINT
)
) JURY DEMAND
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)
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Plaintiff Cabot Hosiery Mills, Inc. (Plaintiff), through its attorneys, complaining of
Defendant Cloudline Apparel, LLC (Defendant), alleges as follows:
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STATEMENT OF THE CASE
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1.
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This is an action for injunctive relief and damages under the Lanham Act and
common law based on Defendants unlawful adoption and use of a design mark that bears
substantial similarity to Plaintiffs logo, a federally registered trademark.
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THE PARTIES
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2.
Cabot Hosiery Mills, Inc. is a corporation organized and existing under the laws
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of the State of Vermont, with its principal address at 364 Whetstone Drive, P.O. Box 307,
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Northfield, Vermont 05663.
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3.
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company organized and existing under the laws of the State of Washington, whose registered
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COMPLAINT -- 1
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701
1 agent is Joseph Shaw, 901 5th Ave. N., #214, Seattle, Washington 98109.
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Subject matter jurisdiction over the Lanham Act claims in this action is conferred
4 upon the Court pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331, 1338 and 1367.
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5.
This Court has personal jurisdiction over Defendant, which transacts business in
6.
8 Defendant resides and does business in this judicial district and/or a substantial part of the events
9 or omissions giving rise to the claims in this Complaint occurred in this judicial district.
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Plaintiff is the owner of U.S. Reg. No. 3219087 on the Supplemental Register for
12 a design mark consisting of three mountain peaks (the Mountain Logo) for Mens, Womens
13 and Childrens Hosiery in Class 25. The Mountain Logo registered on March 3, 2007, and had a
14 date of first use on June 2, 2004, with a date of first use in commerce of July 12, 2004. The
15 registration certificate for U.S. Reg. No. 3219087 is attached as Exhibit 1.
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8.
Plaintiff is also the owner of U.S. Reg. No. 4490538 on the Principal Register for
17 the Mountain Logo for Hosiery; Socks in Class 25, which mark registered on March 4, 2014,
18 with a date of first use on June 2, 2004, with a date of first use in commerce of July 12, 2004.
19 The registration certificate for U.S. Reg. No. 4490538 is attached as Exhibit 2. The Mountain
20 Logo is pictured below.
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9.
marketed and sold clothing under the Mountain Logo, has invested substantial resources in
advertising and promoting its goods bearing the Mountain Logo, and has acquired substantial
COMPLAINT -- 2
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701
10.
Plaintiff, which does business under the name Darn Tough Vermont, is a well-
3 known and highly respected company in the hosiery industry. Plaintiff and its socks have been
4 featured in publications such as Runners World magazine, the New York Times and the Wall
5 Street Journal. Plaintiffs socks sell in many national and regional chains and on national and
6 regionally-based websites such as amazon.com, rei.com, backcountry.com, shoebuy.com,
7 getzs.com, jaxmercantile.com, socksaddict.com, and thegrommet.com.
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11.
9 classes of purchasers.
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12.
Upon information and belief, since in or around May, 2015, Defendant has been
11 manufacturing, distributing and selling socks bearing a logo that is substantially similar to the
12 Mountain Logo (the Infringing Logo).
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13.
Both the Mountain Logo and the Infringing Logo show similarly styled mountain
14 peaks, the Mountain Logo consisting of three mountain peaks, and the Infringing Logo consisting
15 of two mountain peaks. The logos appear in the same location on the parties respective products,
16 as shown below.
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COMPLAINT -- 3
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701
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14.
Plaintiff and Defendant use the same channels of advertising. Like Plaintiff,
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Defendant advertises that its products are made of merino wool, are manufactured in the United
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States, and come with an unconditional guarantee.
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15.
Plaintiffs and Defendants respective goods are being offered and sold, and will
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continue to be offered and sold, through the same channels of trade and purchased by the same
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class of purchasers. Defendant sells hiking socks for men, women and children. Plaintiff also
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sells hiking socks, among other products, for men, women and children.
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16.
Plaintiffs customers, people in the trade and the public in general are likely to be
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confused, mistaken or deceived as to the origin, affiliation, endorsement or sponsorship of the
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goods sold and marketed by Defendant bearing the Infringing Logo, and misled into believing
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that such goods are produced, offered or sold by, or emanate from, or are in some way associated
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with Plaintiff, to the damage and detriment of Plaintiff, its good will and reputation.
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17.
Defendant is and has been on constructive notice of Plaintiffs prior rights in the
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Mountain Logo by virtue of the subsistence of the Mountain Logo registrations.
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COMPLAINT -- 4
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701
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in paragraphs 1 through 17 of this Complaint.
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designation, to wit, the Infringing Logo, that is confusingly similar to Plaintiffs Mountain Logo.
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20.
Defendants acts of trademark infringement have been and are being committed
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willfully and with the intent to cause confusion, mistake or deception in violation of 15 U.S.C.
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1114.
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suffered or is likely to suffer damages, including without limitation irreparable damage to its
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business reputation and goodwill.
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Unless enjoined from using the Infringing Logo, Defendants infringing conduct
as alleged herein will continue to cause irreparable harm and injury to Plaintiffs business and
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goodwill for which there is no adequate remedy at law.
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23.
Defendants conduct has also caused and, unless enjoined, will continue to cause
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inevitable public confusion for which there is no adequate remedy at law.
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amount to be determined at trial, including but not limited to the profits earned by Defendant
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from its infringing conduct.
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undertaken willfully, thereby entitling Plaintiff to receive three times its actual damages or three
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times Defendants profits, whichever is greater, and to an award of attorneys fees under 15
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U.S.C. 1117(a) and (b).
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COMPLAINT -- 5
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701
27.
2 products, signs, labels, packages, advertisements, brochures, hang tags, web pages and other
3 items, tangible and intangible, that bear the Infringing Logo and are in the possession or under
4 the control of Defendant.
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1125(a)(1).
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Mountain Logo, to wit, the Infringing Logo, is likely to cause confusion, mistake or deception by
or in the public and persons in the trade as to the affiliation, connection, association, origin,
sponsorship or approval of Defendants and Plaintiffs goods, to the detriment of Plaintiff and in
violation of 15 U.S.C. 1125(a)(1).
31.
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devices tending falsely to describe the infringing product within the meaning of 15 U.S.C.
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Defendants conduct was undertaken willfully and with the intent to cause
confusion, mistake and deception in the trade and on the part of persons in the trade and the
public.
32.
Defendants conduct has damaged Plaintiffs business reputation and good will.
33.
Defendants conduct has caused and, unless enjoined, will continue to cause
irreparable harm and injury to Plaintiffs business reputation and goodwill for which there is no
adequate remedy at law.
34.
Defendants conduct has caused and, unless enjoined, will continue to cause
inevitable confusion in the trade and on the part of the public, for which there is no adequate
remedy at law.
COMPLAINT -- 6
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701
35.
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3 amount to be determined at trial, including but not limited to the profits earned by Defendant
4 from its use of a mark or designation confusingly similar to Plaintiffs Mountain Logo.
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37.
6 undertaken willfully, thereby entitling Plaintiff to receive three times its actual damages or three
7 times Defendants profits, whichever is greater, and to an award of attorneys fees under 15
8 U.S.C. 1117(a) and 1117(b).
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38.
10 products, signs, labels, packages, advertisements, brochures, hang tags, web pages and other
11 items, tangible and intangible, that bear the Infringing Logo and are in the possession or under
12 the control of Defendant.
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Third Claim: Common Law Unfair Competition and False Designation of Origin
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Plaintiff has expended substantial time, resources and effort to develop and obtain
17 an excellent reputation and good will for itself and its Mountain Logo.
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41.
19 unlawful effort to capitalize on Plaintiffs goodwill for Defendants own pecuniary gain.
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42.
Defendants unlawful adoption and use of the Infringing Logo is calculated and
21 likely to confuse, deceive and mislead the trade and consumers into believing that its goods and
22 services originated or were authorized by Plaintiff.
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43.
Defendants unlawful adoption and use of the Infringing Logo has caused and is
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701
44.
Upon information and belief, Defendant has obtained gains, profits and
2 advantages as a result of its impermissible and unlawful use of the Infringing Logo in an amount
3 not yet determined or ascertainable.
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45.
5 will, unless enjoined by this Court, result in (a) damage to and destruction and/or diversion of
6 Plaintiffs goodwill in its Mountain Logo, and (b) the unjust enrichment of Defendant.
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11 follows:
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(a)
Entering a preliminary and permanent injunction against Defendant from (1) using
13 the Infringing Logo; and (2) engaging in any other act that constitutes trademark infringement,
14 unfair competition or false advertising in violation of Plaintiffs rights;
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(b)
Requiring Defendant to take such action as may be directed by the Court for the
(c)
19 compensate Plaintiff for Defendants false designation of origin and unfair competition through
20 its use of the Infringing Logo;
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(d)
Ordering Defendant to account to Plaintiff for its profits derived by reason of its
22 misappropriation of the Plaintiffs Mountain Logo and Defendants use of the Infringing Logo;
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(e)
24 Defendants profits or three times any damages sustained by Plaintiff, whichever is greater;
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COMPLAINT -- 8
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701
(f)
Pursuant to 15 U.S.C. 1117, awarding Plaintiff its costs, expenses and attorneys
(g)
4 labels, packages, advertisements, brochures, hang tags, web pages and other items, tangible and
5 intangible, that bear the Infringing Logo and are in the possession or under the control of
6 Defendants;
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(h)
8 to be paid by Defendant;
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(i)
Awarding Plaintiff its costs, expenses and attorneys fees incurred with respect to
(j)
Awarding such other and further relief as to the Court seems just, proper and
12 equitable.
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COMPLAINT -- 9
ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701