IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION USA SPORTS, INC.

Plaintiff, v. TEAM MARATHON FITNESS, INC. and UMAX STRENGTH, INC. Defendants. ORIGINAL COMPLAINT For its complaint against Team Marathon Fitness, Inc. (Marathon Fitness) and Umax Strength Inc. (Umax), plaintiff USA Sports, Inc. (USA Sports) alleges: PARTIES 1. USA Sports is a corporation organized under the laws of the State of Texas and JURY
11-492 CASE NO. ______________________

has its principal place of business within this judicial district. 2. Marathon Fitness is a corporation organized under the laws of the State of Texas

and had its principal place of business within this judicial district. 3. UMax is a corporation organized and existing under the laws of the State of

California, having its principal place of business in Chino, California. UMax regularly sells products to entities in this judicial district and to Marathon Fitness. NATURE OF ACTION, JURISDICTION AND VENUE 4. This is an action for: (a) patent infringement under the Patent Act, 35 U.S.C. 1

et seq.; (b) infringement of unregistered trademarks under the Lanham Act, 15 U.S.C. 1125(a); (c) false marking under the Patent Act, 35 U.S.C. 292; (d) tortious interference with existing contract under Texas common law; and (e) related state common law claims. Page 1 of 12
HOU 1556797

5.

This Court has subject matter jurisdiction under 28 U.S.C. 1331 (Federal

Question), 1332 (Diversity of Citizenship), 1338 (Patent, Trademark and Unfair Competition) and 1367 (Supplemental Jurisdiction), and/or 15 U.S.C. 1121 (Lanham Act). 6. Venue is proper under 28 U.S.C. 1391(b) & (c), 1400(a), and/or 1400(b)

because, among other things, USA Sports and Marathon Fitness reside in this district and have their principal places of business in this district, Umax resides in this District, a substantial part of the events or omissions giving rise to the claims occurred in this District, and/or a substantial part of the property that is the subject of the action is situated in this District.

Page 2 of 12
HOU 1556797

FACTS COMMON TO ALL COUNTS USA Sports Property Rights 7. USA Sports is the owner by assignment of U.S. Patent No. D597,612 issued

August 4, 2009 (the 612 design patent), which is valid and enforceable. The 612 and 614 design patents is directed to an ornamental design for a barbell/dumbbell. A true and correct copy of the 612 design patent is attached as Exhibit A. 8. USA Sports is the owner by assignment of U.S. Patent No. D624,614 issued

September 28, 2010 (the 614 design patent), which is valid and enforceable. The 614 design patent is directed to an ornamental design for a dumbbell. A true and correct copy of the 614 design patent is attached as Exhibit B. 9. At all times relevant to this action, USA Sports has complied with any notice

provisions of 35 U.S.C. 287 as they may relate to the 612 and 614 design patents. 10. Over the years, USA Sports has manufactured, or had manufactured for it, and

sold a wide variety of dumbbells and athletic equipment. Among its better-known products are products sold under its famous registered TROY trademark. 11. Years ago, USA Sports began utilizing a unique trade dress for many of its

dumbbell products sold under the TROY mark (the TROY Trade Dress). The unique trade dress is generally reflected in the image below:

Page 3 of 12
HOU 1556797

12.

The overall appearance of the USA Sports dumbbells using the TROY Trade

Dress provides a certain distinctive and non-functional appearance that, taken as a whole in combination, identify the dumbbells as originating exclusively with USA Sports. 13. USA Sports has used and actively promoted the TROY Trade Dress to identify to

customers and users the high quality dumbbells its sells extensively throughout the United States and other parts of the world. 14. USA Sports has sold substantial numbers of dumbbells bearing the TROY Trade

Dress. USA Sports has extensively advertised, marketed, and promoted its dumbbells bearing the TROY Trade Dress. USA Sports dumbbells bearing the TROY Trade Dress are well known and well respected for quality and dependability. 15. The TROY Trade Dress has developed a secondary meaning within the relevant

market, which meaning signifies quality dumbbells originating with a single source, USA Sports. 16. The TROY Trade Dress is inherently distinctive as to weight plates, and is now

famous for weight plates. Defendants Improper Activities 17. Marathon Fitness has offered for sale, exposed for sale, and sold and is currently

offering and exposing for sale Umax U2 Urethane Dumbbells. 18. Marathon Fitness engaged in the acts set forth in the previous paragraph, in part,

through its website, www.marathonfitness.com. A portion of a page from that website exposing Umax U2 Urethane Dumbbells for sale is reproduced below:

Page 4 of 12
HOU 1556797

19.

In connection with its offering for sale, exposing for sale, and selling of Umax

U2 Urethane Dumbbells, Marathon Fitness has represented that the products are patented.

Page 5 of 12
HOU 1556797

COUNT I Infringement of the 612 and 614 Design Patents 20. The allegations in the preceding paragraphs of this Complaint are hereby restated

and incorporated by reference. 21. Defendants have committed acts of direct and indirect patent infringement by

making, using, selling, offering to sell, and/or importing dumbbells that infringe the 612 and 614 design patents. 22. Defendants have applied the design of the 612 and 614 design patents, or a

colorable imitation thereof, to an article of manufacture for the purpose of sale and/or have sold or exposed for sale articles of manufacture to which the design or colorable imitation has been applied. As such, they are liable to USA Sports for their total profit under 35 U.S.C. 289. 23. As a result of USA Sports activities, Marathon Fitness and Umax are believed to

have knowledge of the 612 and 614 design patents. As such, their infringement of the 612 and 614 design patents is deliberate and willful. The allegations and factual contentions set forth in this paragraph are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. See Fed. R. Civ. P. 11(b)(3). COUNT II Trade Dress Infringement under the Lanham Act 24. The allegations in the preceding paragraphs of this Complaint are hereby restated

and incorporated by reference. 25. Without authorization, Marathon Fitness and Umax have used in connection with

goods, and continue to use in interstate commerce and/or in commerce between the United States and foreign nations, a symbol or device in the form of a reproduction, or copy of the USA Sports TROY Trade Dress, which is likely to cause confusion, or to cause mistake, or to deceive as to Page 6 of 12
HOU 1556797

the affiliation, connection, or association of Marathon Fitness and/or Umax, or as to the origin, sponsorship, or approval of their goods or commercial activities. Both Marathon Fitness and Umax are liable for such unauthorized use under 15 U.S.C. 1125(a)(1)(A). 26. As a result of such unauthorized use of a counterfeit, reproduction, or copy of the

USA Sports TROY Trade Dress, USA Sports has suffered damages in the form of lost sales, lost profits, and injury to its goodwill and business reputation symbolized by the USA Sports TROY Trade Dress. 27. Further, as a result of such unauthorized use, both Marathon Fitness and Umax

have made unjust profits and ill-gotten gains from the sale of its goods by trading on the reputation and goodwill associated with the USA Sports TROY Trade Dress. 28. In addition, USA Sports will be irreparably harmed and damaged by the

continuation of such unauthorized use and does not have adequate remedies at law. COUNT III False Marking Under the Patent Act 29. Marathon Fitness has used in connection with Umax U2 Urethane Dumbbells the

word patented. 30. Umax does not own any patents that cover any aspect of its U2 Urethane

Dumbbell products. Marathon Fitness is aware of this fact. 31. Marathon Fitness does not own any patents that cover any aspect of Umax U2

Urethane Dumbbell products. Marathon Fitness is aware of this fact. 32. Marathon Fitness is not aware of any specific patent not owned by USA Sports

that covers any aspect of Umax U2 Urethane Dumbbell products. 33. Because Marathon Fitness is not aware of any specific patent not owned by

USA Sports that covers any aspect of Umax U2 Urethane Dumbbell products, its affirmative Page 7 of 12
HOU 1556797

public use of the term patented in connection with Umax U2 Urethane Dumbbell products was made, for the purpose of deceiving the public. The allegations and factual contentions set forth in this paragraph have evidentiary support and are likely to have additional evidentiary support after a reasonable opportunity for further investigation or discovery. See Fed. R. Civ. P. 11(b)(3). 34. As an entity offering a product in direct competition with Umax U2 Urethane

Dumbbell products, USA Sports has suffered a direct competitive injury as a result of Marathon Fitness false patent marking and is entitled to a recovery of damages adequate to compensate it for its injury pursuant to 35 U.S.C. 292. COUNT IV Tortious Interference With Existing Contract 35. Many of the products offered by USA Sports that use the USA Sports Troy Trade

Dress are made by Ningbo Maoxin R&P Products Co., Ltd. in Zhejiang, China (hereinafter Ningbo Maoxin) pursuant to a valid contract between Ningbo Maoxin and USA Sports. 36. Under the terms of its contract with USA Sports, Ningbo Maoxin could not use

tooling it was using to produce products for USA Sports to make products for any third parties. 37. Under the terms of its contract with USA Sports, Ningbo Maoxin could not make

tooling that was the same as, or similar to, the tooling it was using to produce products for USA Sports to make products for any third parties. 38. Maoxin. 39. Umax was aware of the existence of the contract between Ningbo Maoxin and Umax was aware that USA Sports was having its products made by Ningbo

USA Sports and of the restrictions imposed by that contract on Ningbo Maoxin.

Page 8 of 12
HOU 1556797

40.

Intending to obtain products from Ningbo Maoxin that were the same, or

confusingly similar to the products Ningbo Maoxin was making for USA Sports, Umax approached Ningbo Maoxin and had it make products for it, including not limited to, Umax U2 Urethane Dumbbells, in breach of the contract. In these acts, Umax willfully and intentionally interfered with the contract. 41. The interference by Umax in the contract proximately caused injury and actual

damages and loss to USA Sports. 42. The acts described above constitute tortious interference by Umax with USA

Sports existing contract with Ningbo Maoxin. COUNT V Trademark and Trade Dress Infringement under Texas Common Law 43. The allegations in the preceding paragraphs of this Complaint are hereby restated

and incorporated by reference. 44. Marathon Fitness and Umax conduct and actions set forth above constitute

trademark and trade dress infringement in violation of the common law of Texas. 45. As a result of such infringement, USA Sports has suffered damages in the form of

lost sales and lost profits and USA Sports has suffered injury to its goodwill and business reputation symbolized by the USA Sports TROY Trade Dress. 46. Further, as a result of such infringement, both Marathon Fitness and Umax have

made unjust profits and ill-gotten gains from the sale of its goods by trading on the reputation and goodwill associated with the TROY Trade Dress. 47. In addition, USA Sports will be irreparably harmed and damaged by the USA Sports complete remedies at law for the

continuation of such unauthorized use.

continuation of such infringement are inadequate. Page 9 of 12

HOU 1556797

COUNT VI Unfair Competition under Texas Common Law 48. The allegations in the preceding paragraphs of this Complaint are hereby restated

and incorporated by reference. 49. Marathon Fitness and Umax conduct and actions set forth above constitute

unfair competition in violation of the common law of Texas. 50. As a result of such unfair competition, USA Sports has suffered damages in the

form of lost sales and lost profits and USA Sports has suffered injury to its goodwill and business reputation symbolized by the TROY Trade Dress. 51. Further, as a result of such unfair competition, both Marathon Fitness and Umax

has made unjust profits and ill-gotten gains from the sale of its goods by trading on the reputation and goodwill associated with the TROY Trade Dress. 52. In addition, USA Sports will be irreparably harmed and damaged by the

continuation of such unfair competition and does not have adequate remedies at law. COUNT VII Unjust Enrichment under Texas Common Law 53. The allegations in the preceding paragraphs of this Complaint are hereby restated

and incorporated herein. 54. Marathon Fitness and Umax conduct and actions set forth above constitute

unjust enrichment under the common law of Texas. 55. USA Sports is thus entitled to disgorgement of the unjust profits made by

Marathon Fitness and Umax.

Page 10 of 12
HOU 1556797

PRAYER WHEREFORE, USA Sports requests judgment against Marathon Fitness and Umax as follows: 1. A preliminary and permanent injunction against the patent and trade dress

infringement and unfair competition in such form as the Court deems just; 2. An award of Marathon Fitness and Umax profits for infringement of the TROY-

Trade Dress, increased as the Court deems just; 3. An award to USA Sports of damages for trade dress infringement and unfair

competition, increased to three fold as the Court deems just; 4. An award to USA Sports of damages for patent infringement, including an award

of profits under 35 U.S.C. 289; 5. An award of damages adequate to compensate USA Sports for Marathon Fitness

false patent marking under 35 U.S.C. 292; 6. An award of attorney fees based on a finding that this is an exceptional case

pursuant to 15 U.S.C. 1117(a); 7. An award of attorney fees and enhanced damages based on a finding that this is

an exceptional case pursuant to 15 U.S.C. 1117(a); 8. That this case be declared exceptional under the patent laws and this Court award

enhanced damages under 35 U.S.C. 284; and attorney fees and costs under 35 U.S.C. 285 or other applicable statute; 9. 10. 11. An award of compensatory damages under the state law claims; An award of punitive damages under the state law claims; An award of Marathon Fitness and Umax unjust profits and ill-gotten gains

under the unjust enrichment claim; Page 11 of 12

HOU 1556797

12. 13. and proper.

An award of prejudgment interest and costs of the action; and USA Sports be granted such other and further relief as the Court may deem just

Demand for Jury Trial USA Sports demands a trial by jury of all issues so triable. October 27, 2011 Respectfully submitted, /s/Robert J. McAughan, Jr. Robert J. McAughan, Jr. Attorney In Charge TX State Bar No. 00786096 S.D. Id. No. 16,501 Daniel G. Nguyen TX State Bar No. 24025560 S.D. ID No. 84,977 LOCKE LORD LLP 2800 JPMorgan Chase Tower 600 Travis Street Houston, TX 77002-3095 (713) 226-1154 Attorneys for Plaintiff USA SPORTS, INC.

Page 12 of 12
HOU 1556797