Académique Documents
Professionnel Documents
Culture Documents
1
LEVIN & DICTEROW
William E. Levin, SBN 104631
2 Steven M. Dicterow, SBN 89371
3 668 N. Coast Highway, Suite 1264
Laguna Beach, CA 92651
4
williamlevin@hotmail.com
5 sdicterow1121@yahoo.com
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(949) 613-5131
28 )
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 2 of 27 Page ID #:110
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 3 of 27 Page ID #:111
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 4 of 27 Page ID #:112
1 7. This Court has personal jurisdiction over the Defendants because, inter
2 alia, on information and belief, the Defendants transact business in the Central
3 District of California, including in Orange County.
4 8. Venue is proper in this District under 28 U.S.C. § 1391(b)(2) and
5 otherwise because a substantial part of the events or omissions giving rise to these
6 claims for copyright infringement, unfair competition, false advertising, trade dress
7 infringement, and related state claims, occurred in this judicial district, including in
8 Orange County.
9 9. On information and belief, the Defendants have advertised, sold,
10 and/or distributed the products complained of in this Complaint in this judicial
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district, and engaged in the wrongful acts alleged herein in this judicial district,
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including in Orange County.
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FACTS
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P&P’S ACTIVITIES
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10. Plaintiff P&P designs, manufactures, markets, and distributes a wide
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range of high-quality outdoor lawn game products under its GoSports® brand
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primarily aimed at the niche outdoor lawn game marketplace as well as high-quality
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pool floats under its GoPong® and GoFloats™ brands. Upon information and
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belief, a high percentage of consumers in that marketplace are aware of P&P, its
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GoSports® lawn game products, its GoPong® and GoFloats™ pool floats and their
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good reputations. P&P’s high-quality products are carried and sold by large
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retailers, in-store and on-line, such as Amazon.com, WalMart.com, Wayfair, Houzz
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and eBay, and are sold in and across the United States, Canada, and the United
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Kingdom.
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P&P’S BACKGROUND AND HISTORY OF TWO COLLEGE
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FRIENDS LAUNCHING THEIR DREAM
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4
P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 5 of 27 Page ID #:113
1 11. P&P Imports was started from humble beginnings in 2007 by two
2 friends, Peter Engler and Peter Tanoury. The two California natives met in the
3 freshman dorms at the University of Colorado at Boulder and during their senior
4 year hatched a plan to create a company that would design and manufacture
5 innovative consumer products. Their first product design was drawn on the back
6 of a pizza box and took months to develop, but over the years while their process
7 has become more efficient, their attention to detail has not wavered. The start was
8 slow, but Peter & Peter were able to organically grow their company from a single
9 product and 0 employees to their current offering of over 250 products and a staff
10 of over 15 employees in its Orange County headquarters. P&P continually strives
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to design and market products that bring enjoyment to patrons of all ages. The
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success of P&P is largely due to their ability to design and develop high quality
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products that stand above many of the other low-cost alternatives. P&P employs a
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full time, in-house design team in their Orange County office who are responsible
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for P&P's product design, including functional and aesthetic aspects, packaging
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design, product photography and editing, instructional inserts and
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advertisements. A typical product requires hundreds of hours of development time
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to ensure it will meet P&P's customers' expectations. In the ultra-competitive world
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of ecommerce, the product's visual appearance is the modern version of retail
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packaging that allows customers to associate a product with a brand. P&P therefore
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goes to great lengths to ensure their high-quality products have their own unique
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look to set them apart from the competition. That way, customers searching for
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P&P's high-quality items can instantly pick them out from the many low-cost
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alternatives, all of which have a different overall look and appearance from that of
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P&P’s products.
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 6 of 27 Page ID #:114
1 12. P&P has been in this business continuously since about 2007, and the
2 products and TRADE DRESS, defined below, have been in use and sold in
3 interstate commerce continuously since the date set forth below.
4 13. As discussed below, Defendants are direct competitors of P&P in the
5 above described interstate marketplace, including in Orange County, California,
6 and elsewhere in the U.S., and, upon information and belief, copied P&P’s
7 copyrighted works and adopted their INFRINGING TRADE DRESS, as defined
8 below, with full knowledge of P&P’s copyrighted works and TRADE DRESS, as
9 defined below, and prior and superior rights to same, and with the knowledge and
10 intent to cause confusion of source or sponsorship as to the parties’ respective
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products, and to profit economically from the commercial exploitation of the
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copyrighted works without paying the customary price.
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P&P’S COPYRIGHTED WORKS AND PRODUCT WHICH
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DEFENDANTS COPIED IDENTICALLY IN MARKETING
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DEFENDANTS’ PRODUCT
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14. P&P protects their original works using all available means, including
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copyrighting their original works, and registering many of such originals. P&P
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registers the copyrights in their works in order to prevent unauthorized parties,
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especially competitors, from using P&P’s original works for their own gain. P&P’s
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copyrighted works appear on the internet and in printed materials in connection
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with the advertising, offering for sale, and selling of P&P’s products which embody
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the copyrighted works.
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15. On or about January 13, 2017, P&P was issued US Copyright
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Registration Number TX 8-488-151 (“the 151 Registration”) entitled “P&P Imports
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2016 Lookbook.” A true and correct copy of the copyright registration certificate
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is attached hereto as Exhibit 2. On page 69 through 75 of said Lookbook, there is
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a display of the copyrighted original works of P&P’s Flamingo Party Tube (“P&P’s
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6
P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 7 of 27 Page ID #:115
1 Flamingo”), which pages are attached hereto as Exhibit 3. On or about August 15,
2 2016, P&P was issued US Copyright Registration Number VA 2-013-842 (“the 842
3 Registration”) entitled “P&P Imports 2016 Lookbook.” A true and correct copy of
4 the certificate of registration, the 842 Registration, is attached hereto as EXHIBIT
5 9. The previous copyright registration, Ex. 9, the 842 Registration, was
6 supplemented by the later, the 151 Registration. On or about June 19, 2018, P&P
7 filed an application for copyright registration, Case Number 1-6693101003 (“the
8 1003 Application”), entitled Flamingo 01, with the U.S. Copyright Office
9 concerning P&P’s rights in its original flamingo work. The 1003 Application
10 includes all of the images, photos, and artwork, and related literature for P&P’s
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Flamingo. A true and correct copy of the materials submitted as deposit works for
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the 1003 Application are attached hereto as EXHIBIT 10 and are shown below:
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 8 of 27 Page ID #:116
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 9 of 27 Page ID #:117
10
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(Image of Defendants’ Infringing Flamingo from Exhibit 4)
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19. Upon information and belief, Defendants had access to the websites in
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which P&P’s copyrighted works appear, accessed the websites, located the
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copyrighted works, developed exact copies of the works, took photographs of the
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copied works now placed on Defendant’s product and packaging, uploaded the
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photographs onto various websites, and physically distributed Defendants’
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Infringing Flamingo product to Defendants’ customers.
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20. The Infringing Flamingo is 100% identical to P&P’s in appearance and
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is intentionally designed and intended to cause confusion to consumers so that
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consumers are likely to mistakenly believe that they are viewing and buying P&P’s
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products, or at minimum viewing products made from the same source or to the
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same specifications or that there is some affiliation, relationship, license,
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endorsement, or sponsorship between the Infringing Flamingo and P&P’s
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Flamingo, or P&P and the Defendants, and upon information and belief is causing
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actual confusion. Indeed, there can be little, if any, justification for such confusingly
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similar, and/or substantially identical, packaging and competing trade dresses,
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9
P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 10 of 27 Page ID #:118
1 except to benefit from, capitalize upon, take advantage of, and ride upon the
2 coattails of, P&P’s TRADE DRESS (as defined below) and their secondary
3 meaning and reputations, and their copyrighted works.
4 21. On March 14, 2018, P&P’s attorney sent a cease and desist letter to 99
5 Cents Only Stores and Momentum Brands demanding that Defendants stop
6 infringing P&P’s registered copyright. Defendants failed to respond or
7 acknowledge P&P’s cease and desist letter and, upon information and belief,
8 continues to willfully sell their infringing product to this day, and to infringe upon
9 the registered, copyrighted works. Attached hereto as Exhibit 5 is a true and correct
10 copy of the March 14, 2018 cease and desist letter.
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P&P’S DEFINED TRADE DRESS
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22. P&P has created, among others, the following trade dress for its
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Flamingo Party Tube product, P&P’s FLAMINGO TRADE DRESS, which is
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depicted in Exhibit 6, attached hereto and incorporated herein by reference. The
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trade dress is described below in more detail and include the overall look and feel
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of the product’s design, as shown below in Exhibit 6, such as the color combinations
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used, the size, texture, dimensions, shape of individual elements, and the total visual
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impact of all the foregoing.
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23. One of P&P’s primary goals has been to build up strong trade dresses
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for its products, that customers can and will uniquely and strongly associate with
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its innovative quality products and stellar customer service, utilizing distinctive
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ornamental product designs to distinguish its products in the marketplace. In this
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effort, P&P has in the past, and continues to the present, to create new designs with
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strong branding which have a unique style and look that is separate and distinct
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from that of any competitors for similar products.
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 11 of 27 Page ID #:119
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 12 of 27 Page ID #:120
1 serve as product design, and have also acquired secondary meaning in the parties’
2 niche marketplaces.
3 30. Since the founding of P&P, long prior to the acts of the Defendant
4 herein alleged, whenever possible, P&P has used their distinctive and unique
5 TRADE DRESS alone in connection with the promotion, marketing and advertising
6 of its Flamingo Party Tube product and services for sale in the United States,
7 including this District.
8 31. Sales, advertising and promotion of P&P’s Flamingo Party Tube
9 product and services which use their unique and distinctive, and non-functional,
10 TRADE DRESS, since inception of the business, have been substantial in P&P’s
11 niche marketplace.
12 32. As a result of such continuous, long, and substantially exclusive use,
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and extensive sales, substantial advertising and promotion, of the products and
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P&P’s TRADE DRESS, P&P’s products and services associated with them enjoy
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recognition and notoriety in the United States in P&P’s niche market place and are
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recognized by the consuming public as emanating from P&P, or, at the very least,
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a single and unique source in the marketplace, and have acquired secondary
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meaning in the marketplace to P&P’s customers and to many potential customers.
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DEFENDANTS’ WRONGFUL ACTIVITIES
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33. Upon information and belief, Defendants are a much larger company
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than P&P with a vast product selection and operates by identifying top selling
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products in certain categories then rushes out low quality knockoffs, or copycat
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products which it imports in large volumes from Asia. Rather than spend the time
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and money to create their own designs and trade dresses, Defendants’ copycat
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products look identical to the top-selling products Defendants knock off, as they
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make no attempt to differentiate their own brand, but rather seek to ride the coattails
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13
P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 14 of 27 Page ID #:122
1 of other successful products through unfair means. Upon information and belief,
2 this is Defendants normal business pattern and practice, in which they engage
3 intentionally, and with gross disregard to the rights of other competitors whom they
4 copy, including P&P.
5 34. Defendants market and sell their knockoff product through the same
6 marketing and sales channels as P&P, including on the internet and through internet
7 retailers, and to similar retailers as P&P, such as Amazon and eBay. Upon
8 information and belief, the vast majority of Defendants’ sales are through their brick
9 and mortar retail stores across the United States.
10 35. Defendants copy, nearly verbatim, P&P’s product descriptions for the
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Flamingo Party Tube which appears in online advertisements, and place the copied
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product descriptions in their Infringing Flamingo product’s advertisements. Exhibit
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6; Exhibit 8 attached hereto is a true and correct copy of an Amazon.com page for
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the Infringing Flamingo.
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36. Upon information and belief, Defendants’ statements and claims are
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false and misleading as to material facts which would and could significantly affect
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the consumers’ decision to purchase Defendants’ products rather than those of their
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direct competitor, P&P, and have caused and will continue to cause, injury and
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damage to P&P, including but not limited to diverting profits to Defendants which
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would otherwise have gone to P&P, and, in addition, rewarding Defendants by
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profits directly attributable to such acts of copyright infringement, false advertising,
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unfair competition, and trade dress infringement.
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37. Upon information and belief, said Defendants’ products, packaging,
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promotional materials, and advertisements, contain other intentionally false and
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misleading statements, as will be shown during discovery in this lawsuit, such as
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representations of P&P’s products and its TRADE DRESS, being used to advertise,
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promote, and sell Defendants’ competing products.
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 15 of 27 Page ID #:123
15
P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 16 of 27 Page ID #:124
1 of Defendants.
2 42. Defendants use confusingly similar trade dress and will continue to do
3 so until and unless enjoined by this Court.
4 43. Defendants’ concurrent usage of the identical products and the
5 infringing trade dress in the same interstate marketplace for the same goods and
6 services, is likely to cause confusion as to the source of the goods, services or the
7 businesses, or an affiliation, license, sponsorship, approval or endorsement between
8 P&P and their business, goods, and services, and Defendants’ business, goods, and
9 services.
10 44. Numerous factors and evidence also indicate that Defendants have
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intentionally adopted and are using a confusingly similar trade dress for the purpose
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of causing confusion and trading on P&P’s prior usage, rights, and reputation and
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goodwill. Because Defendants are located in the same geographical area as P&P
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and in the same industries of outdoor lawn games and pool floats, it is virtually
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certain that Defendants were aware of P&P’s prior use and rights when they began
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to sell identical products and use identical trade dress in the same area.
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45. Defendants’ use of the identical products and Infringing trade dress
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constitutes an infringement of P&P’s common law and statutory rights under U.S
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federal law, including but not limited to Section 43(a) of the Lanham Act, and under
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California law, unfair competition, and false advertising, and appears to be an
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intentional infringement of P&P’s rights.
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46. P&P have demanded that Defendants stop the wrongful activities
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complained of herein. This demand was in an effort to avoid litigation, and
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Defendants were advised that a lawsuit would be filed if Defendants failed to stop
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such wrongful activities. Instead of moving to remedy P&P’s claims, Defendants
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instead continue their copying of P&P’s products.
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47. It seems apparent that Defendants fully intends to, and will, continue
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 17 of 27 Page ID #:125
1 all of their wrongful activities until and unless enjoined by this Court. While P&P
2 have complained to the Defendants of their unfair, infringing, harmful and illegal
3 activities, the Defendants have willfully failed, and/or refused, to stop their
4 wrongful activities.
5 48. Defendants continues to falsely advertise their identical products.
6 P&P’s Damages, Restitution, and Economic Harm
7 49. Upon information and belief, as a direct and proximate result of
8 Defendants’ wrongful activities, P&P has suffered actual damages in an amount yet
9 to be determined, including but not limited to damages to P&P’s reputation, loss of
10 good will, lost sales and revenues, increased consumer search costs, diminution in
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the value of P&P’s business, and lost sales of P&P’s related products as a result of
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Defendants’ infringing activities, and subject to proof at trial and future retention
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of expert witnesses regarding such damages and other damages set forth in this
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complaint.
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50. Upon information and belief, as a direct and proximate result of
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Defendants’ wrongful activities, P&P will need to conduct a corrective advertising
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campaign to alleviate existing and ongoing future confusion in the marketplace, in
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an amount to be determined, but believed to be in excess of one hundred thousand
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dollars, $100,000.
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51. Upon information and belief, as a direct and proximate result of
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Defendants’ wrongful activities, Defendants have made gross sales (and profits
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thereon) from their wrongful activities as alleged herein, which belong in equity
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and should be turned over to P&P, both as unjust enrichment from Defendants’
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wrongful acts, and/or as a measure of P&P’s damages.
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52. P&P believes, based on such items as feedback from its customers, that
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it has many repeat customers for its products and services. That is, customers who
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purchase its products are also likely to purchase other products in the future from
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 18 of 27 Page ID #:126
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 19 of 27 Page ID #:127
1 56. In addition, the sales and profits which P&P would have otherwise
2 made from customers who were illegally diverted to Defendants for all P&P’s
3 products which were copied by Defendants. Such diverted sales and profits should
4 be returned to P&P as the true owner thereof, both as damages, and as a form of
5 restitution of P&P’s property which was acquired by and through Defendants’
6 wrongful acts, including the false advertising, the trade dress infringement, and
7 unfair competition. P&P has an ownership interest in its intellectual property, such
8 as their TRADE DRESS, and goodwill which Defendants usurped and profited
9 from directly by their wrongful acts complained of herein.
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CLAIMS FOR RELIEF
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Count 1
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(Copyright Infringement under Federal Law)
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57. P&P repeat and incorporate by reference the statements and allegations
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in paragraphs 1 to 56 of the Complaint as though fully set forth herein.
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58. P&P’s works are original works that may be copyrighted under U.S.
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law under 17 U.S.C. § 101 et seq., and P&P have registered the copyrighted works
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as alleged previously.
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59. P&P is the sole owner of the copyrighted works and are in compliance
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with the copyright laws.
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60. Defendants’ use of the copyrighted works is without any license or
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permission from P&P.
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61. Defendants’ above described actions and wrongful activities constitute
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infringement of P&P’s copyrights, in violation of 17 U.S.C. § 106, all to the damage
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of P&P as alleged herein.
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Count 2
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(False Advertising Under the Lanham Act)
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 20 of 27 Page ID #:128
20
P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 21 of 27 Page ID #:129
1 Count 5
2 (Trade Dress Infringement under Federal Law)
3 69. P&P repeat and incorporate by reference the statements and allegations
4 in paragraphs 1 to 68 of the Complaint as though fully set forth herein.
5 70. Defendants’ above described actions and wrongful activities constitute
6 infringement of P&P’s TRADE DRESS as used in connection with its above
7 described products in the above described niche marketplace, in violation of the
8 Lanham Act, 15 U.S.C. § 1125, all to the damage of P&P as alleged herein.
9 Count 6
10 (Trade Dress Infringement under California Law)
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71. P&P repeat and incorporate by reference the statements and allegations
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in paragraphs 1 to 70 of the Complaint as though fully set forth herein.
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72. Defendants’ above described actions and wrongful activities constitute
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infringement of P&P’s TRADE DRESS as used in connection with its above
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described products in the above described niche marketplace, in violation of
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California common law, all to the damage of P&P as alleged herein.
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Such claims are allowed under California common law. See, e.g., Alchemy
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II, Inc. v. Yes! Entm't Corp., 844 F. Supp. 560 (C.D. Cal. 1994) (Claim 6 is common
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law trade dress infringement); James R. Glidewell Dental Ceramics, Inc. v. Keating
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Dental Arts, Inc., No. SACV 11-1309-DOC ANX, 2013 WL 655314, at *12 (C.D.
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Cal. Feb. 21, 2013) (recognizes claim under common law, though claim dismissed
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for failure to oppose dismissal); Zobmondo Entm't, LLC v. Falls Media, LLC,
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602F.3d 1108, 1112 (9th Cir. 2010) (recognizes common law trade dress
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infringement); Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery, 150 F.3d
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1042, 1045 (9th Cir. 1998) (recognizes common law trade dress infringement); See
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generally, W. Levin, 1 Trade Dress Protection §10:9.
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 22 of 27 Page ID #:130
1 Count 7
2 (Unfair Competition under the Lanham Act)
3 73. P&P repeats and incorporate by reference the statements and
4 allegations in paragraphs 1 to 72 of the Complaint as though fully set forth herein.
5 74. Defendants’ above described actions and wrongful activities constitute
6 unfair competition with P&P, and an ongoing pattern of unfair competition, all to
7 the damage of P&P as alleged herein.
8 75. Defendants’ wrongful use of the TRADE DRESS falsely indicates to
9 consumers that Defendants’ products originate from, are approved by, are
10 sponsored by, are licensed by, or are affiliated with P&P or are otherwise associated
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with their services or products.
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76. Defendants’ wrongful use of the TRADE DRESS in the manner
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described above is likely to cause and has likely caused confusion, is likely to cause
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and likely has caused initial interest confusion, is likely to cause and likely has cause
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post sale confusion, is likely to cause and likely has caused mistake, and/or is likely
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to deceive and has likely deceived customers and potential customers of the parties
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by suggesting some affiliation, connection, or association of Defendants with P&P.
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77. Defendants’ actions, as set forth above, constitute trademark
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infringement of non-federally registered trade dress, and constitute unfair
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competition in violation of the Lanham Act, 15 U.S.C. § 1125, all to the damage of
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P&P as described herein and previously alleged.
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INJUNCTIVE RELIEF
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78. P&P also seeks to enjoin, permanently, Defendants and their agents
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and representatives from each and every one of the wrongful activities alleged
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herein, including but not limited to falsely advertising, unfairly competing, using
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P&P’s trade dresses, or copying its products or services, or any other wrongful
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 23 of 27 Page ID #:131
1 activities of the type alleged herein during the pendency of this action.
2
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 24 of 27 Page ID #:132
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 25 of 27 Page ID #:133
25
P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 26 of 27 Page ID #:134
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Respectfully submitted,
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By: /s/ William E. Levin
William E. Levin
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Attorneys for Plaintiff,
26 P&P IMPORTS LLC
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P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18 Filed 08/21/18 Page 27 of 27 Page ID #:135
1 Exhibits to Complaint
2
3 Exhibit Description
No.
4
5
1 CA Department of State Business Entity search result for Momentum
Brands
6
2 Copyright registration for the 2017 version of P&P Imports 2016
7
Lookbook.
8
3 Relevant pages from P&P Imports 2016 Lookbook.
9
4 Defendants’ Infringing Flamingo.
10
11
5 Cease and Desist letter dated March 14, 2018, sent to Defendants.
12 6 Amazon page for P&P’s Flamingo Party Tube.
13 7 Examples of non-infringing flamingo pool floats.
14 8 Amazon page for the Infringing Flamingo.
15
9 Copyright registration for P&P Imports 2016 Lookbook.
16
10 Deposit works for the 1009 Application.
17
18
19
20
21
22
23
24
25
26
27
28
27
P&P’s First Amended Complaint for Copyright Infringement, False Advertising,
Trade Dress Infringement, Unfair Competition, etc.
Case 8:18-cv-01099-JVS-JDE Document 18-1 Filed 08/21/18 Page 1 of 4 Page ID #:136
EXHIBIT: 1
Business Search - Business Entities - Business Programs | California Secretary of State
Case 8:18-cv-01099-JVS-JDE Document 18-1 Filed 08/21/18 Page 2 of 4 Page ID #:137
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C2666799
MOMENTUM BRANDS, INC.
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EXHIBIT: 2
Case 8:18-cv-01099-JVS-JDE Document 18-2 Filed 08/21/18 Page 2 of 2 Page ID #:141
Certificateof Registration
This Certificateissued under the seal of the Copyright
Officein accordancewith title 17, UnitedStatesCode,
attests that registration has been made for the work
identified below.The information on this certificate has Registration Number
been made a part of the Copyright Office records.
TX 8-488-151
~E~~umdDmcto
Effective Date of Registration:
January 13, 2017
Title
Completion/Publication
Year of Completion: 2016
Date of 1st Publication: January 02, 2016
Nation of 1st Publication: United States
Author
·Gopyright Claimant
New material included in claim: text, photograph(s), artwork, Compilation of previously published materials as a
catalogue
Page 1 of2
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 1 of 9 Page ID #:142
EXHIBIT: 3
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 2 of 9 Page ID #:143
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 3 of 9 Page ID #:144
69
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 4 of 9 Page ID #:145
70
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 5 of 9 Page ID #:146
PT-Flamingo-01 - Packaging
71
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 6 of 9 Page ID #:147
PT-Flamingo-01 - Packaging
72
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 7 of 9 Page ID #:148
2. Wing Art
73
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 8 of 9 Page ID #:149
74
Case 8:18-cv-01099-JVS-JDE Document 18-3 Filed 08/21/18 Page 9 of 9 Page ID #:150
75
Case 8:18-cv-01099-JVS-JDE Document 18-4 Filed 08/21/18 Page 1 of 2 Page ID #:151
EXHIBIT: 4
Case 8:18-cv-01099-JVS-JDE Document 18-4 Filed 08/21/18 Page 2 of 2 Page ID #:152
Case 8:18-cv-01099-JVS-JDE Document 18-5 Filed 08/21/18 Page 1 of 12 Page ID #:153
EXHIBIT: 5
Case 8:18-cv-01099-JVS-JDE Document 18-5 Filed 08/21/18 Page 2 of 12 Page ID #:154
ThornCrest Law
1310 Rosecrans Street
'
Suite C
San Diego, California 92106
Via FedEx
This firm represents P&P Imports, LLC,the owner of the GoFloats brand. I am sure that
you are aware of P&P Imports and its GoSports brand as you have intentionally and
flagrantly stolen P&P Imports' intellectual property in violation of federal and state law.
The infringement relates to the wholesale copying of GoFloats' Inflatable Flamingo Party
Tube.
P&P Imports, LLCis the owner of United States Copyright Registration Number TX 8-488-
151 entitled "P&P Imports 2016 Lookbook" {the "Lookbook") {copyright certificate
attached). The Lookbook contains all of P&P Imports' products and the artwork on
those products is protected by this federal copyright registration. GoFloats' Inflatable
Flamingo Party Tube artwork and images are on pages 69-74 of the copyrighted work
(attached). Specifically, you are wrongfully using P&P Imports' copyrighted artwork and
images in the sale and advertisement of your GABOSSJumbo Inflatable Flamingo Pool
Float.
On March 12, 2018, GoFloats purchased your GABOSSJumbo Inflatable Flamingo Pool
Float on Amazon as order number 114-0328607-8523435. Printed directly on the
infringing float is "Imported by Momentum Brands, Commerce, CA":
-.
Case 8:18-cv-01099-JVS-JDE Document 18-5 Filed 08/21/18 Page 3 of 12 Page ID #:155
(a) cease and desist your unlawful copying of P&P Imports' artwork and images;
(b) provide us with prompt written assurance within ten (10) days that you will
cease and desist from further infringement of P&P Imports' copyrighted work;
(c) provide us with an accounting of all sales of your Jumbo Inflatable Flamingo
Pool Float product that wrongfully uses P&P Imports' artwork and images;
(d) provide us with the total number of products manufactured and the contact
information for the manufacturer;
(e) provide a complete listing, with contact information, of all retailers or third-
parties that have purchased your infringing product;
(f) agree to pay a licensing fee for all artwork and images previously stolen from
P&P Imports;
(g) cease and desist the use, sale and distribution of all copyrighted works; and
(h) deliver-up for destruction all files, electronic or otherwise, that incorporate
P&P Imports copyrighted artwork and images.
Failure to company with P&P Imports demands may result in litigation. Should P&P
Imports be forced to file a lawsuit, it will seek either actual damages pursuant to 17
U.S.C.§ 504(b) or statutory damages pursuant to 17 U.S.C.§ 504(c) for copyright
infringement; restitution for unfair and illegal business practices pursuant to state law
claims; and may seek a preliminarily and permanent injunction enjoining you from your
unlawful activities. Please respond to this letter on or before March 25, 2018. Failure to
do so will lead P&P Imports to believe that you are not interested in resolving these
issues amicably and P&P Imports may seek judicial intervention.
lii:.w~ ~
U JaA
Attorney for P&P Imports, LLC
Enc.
2
Case 8:18-cv-01099-JVS-JDE Document 18-5 Filed 08/21/18 Page 4 of 12 Page ID #:156
Certificateof Registration
This Certificateissued under the seal of the Copyright
Officein accordancewith title 17, UnitedStatesCode,
attests that registration has been made for the work
identified below.The information on this certificate has Registration Number
been made a part of the Copyright Office records.
TX 8-488-151
~E~~umdDmcto
Effective Date of Registration:
January 13, 2017
Title
Completion/Publication
Year of Completion: 2016
Date of 1st Publication: January 02, 2016
Nation of 1st Publication: United States
Author
·Gopyright Claimant
New material included in claim: text, photograph(s), artwork, Compilation of previously published materials as a
catalogue
Page 1 of2
Case 8:18-cv-01099-JVS-JDE Document 18-5 Filed 08/21/18 Page 5 of 12 Page ID #:157
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Use of this system constitutes your agreement to the service conditions in the current FedEx Service Guide, available on fedex.com .FedEx will not
be responsible for any claim in excess of $100 per package, whether the result of loss, damage, delay, non-delivery,misdelivery,or misinformation,
unless you declare a higher value, pay an additional charge, document your actual loss and file a timely claim .Limitations found in the current FedEx
Service Guide apply. Your right to recover from FedEx for any loss, including intrinsic value of the package , loss of sales , income interest, profit ,
attorney 's fees, costs, and other forms of damage whether direct, incidental,consequential, or special is limited to the greater of $1 DDor the
authoriz -9d declared value. Recovery cannot exceed actual documented loss .Maximum for items of extraordinary value is $1,000, e.g. jewelry,
precious. metals, negotiable instruments and other items listed in our ServiceGuide. Written claims must be filed within strict time limits, see current
FedEx Service Guide .
EXHIBIT: 6
Page 1 of 1
Case 8:18-cv-01099-JVS-JDE Document 18-6 Filed 08/21/18 Page 2 of 2 Page ID #:166
https://www.amazon.com/GoFloats-Flamingo-PartyTube-Inflatable-Adults... 5/17/2018
Case 8:18-cv-01099-JVS-JDE Document 18-7 Filed 08/21/18 Page 1 of 3 Page ID #:167
EXHIBIT: 7
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