CASE 0:12-cv-02899-DWF-SER Document 1 Filed 11/16/12 Page 1 of 24
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`Plaintiff,
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`vs.
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`Select Comfort Corporation,
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`
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`John Baxter; and
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`Dires, LLC d/b/a Personal Touch Beds and
`Personal Comfort Beds;
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`
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`
`
`
`
`Court File No. _________________
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`
`
`
`
`COMPLAINT
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`JURY TRIAL DEMANDED
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`
`
`
`
`Defendants.
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`Plaintiff, Select Comfort Corporation (“Select Comfort”), for its Complaint
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`against Defendants John Baxter and Dires, LLC (“Dires”) d/b/a Personal Touch Beds
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`(“Personal Touch”), and Personal Comfort Beds (“Personal Comfort”) (collectively
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`“Defendants”), states:
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`NATURE OF THIS ACTION
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`1.
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`This is an action for damages and injunctive relief arising out of
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`Defendants’ infringing, unauthorized, false and misleading use of several of Select
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`Comfort’s trademarks, and false and deceptive statements made to Minnesota consumers
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`on Defendants’ websites.
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`PARTIES
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`2.
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`Select Comfort is a Minnesota corporation with its principal place of
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`business in Minnesota.
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`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00514
`Page 1
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`
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`
`
`
`
`
`Plaintiff,
`
`vs.
`
`
`Select Comfort Corporation,
`
`
`
`
`
`John Baxter; and
`
`Dires, LLC d/b/a Personal Touch Beds and
`Personal Comfort Beds;
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`
`
`
`
`
`
`Court File No. _________________
`
`
`
`
`
`COMPLAINT
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`Defendants.
`
`Plaintiff, Select Comfort Corporation (“Select Comfort”), for its Complaint
`
`against Defendants John Baxter and Dires, LLC (“Dires”) d/b/a Personal Touch Beds
`
`(“Personal Touch”), and Personal Comfort Beds (“Personal Comfort”) (collectively
`
`“Defendants”), states:
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`NATURE OF THIS ACTION
`
`1.
`
`This is an action for damages and injunctive relief arising out of
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`Defendants’ infringing, unauthorized, false and misleading use of several of Select
`
`Comfort’s trademarks, and false and deceptive statements made to Minnesota consumers
`
`on Defendants’ websites.
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`PARTIES
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`2.
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`Select Comfort is a Minnesota corporation with its principal place of
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`business in Minnesota.
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`American National Manufacturing, Inc.
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`3.
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`Defendant John Baxter is a Florida resident and a director of Dires. On
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`information and belief, John Baxter is a member of Dires.
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`4.
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`Dires is a Delaware limited liability company with its principal place of
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`business in Florida. Dires does business as Personal Touch and Personal Comfort, which
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`are both registered in Florida as entities wholly owned by Dires.
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`JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over the subject matter of this action pursuant to
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`28 U.S.C. § 1338 and supplemental jurisdiction over the state law claims pursuant to 28
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`U.S.C. § 1367. Venue lies in this District under 28 U.S.C. § 1391(b) and (c).
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`6.
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`This Court has personal jurisdiction over Defendants. Defendants have
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`purposefully, continuously and systematically conducted business in Minnesota by, inter
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`alia, advertising, promoting and selling their air bed mattress products in Minnesota.
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`Defendants’ advertising, promotion and selling is conducted primarily through highly
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`interactive websites accessible at the domain names personaltouchbed.com and
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`personalcomfortbed.com, through which Defendants offer for sale and sell products to
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`Minnesota residents by making deceptive and misleading statements and by infringing
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`Select Comfort’s trademarks. Defendants thus transact business over the internet with
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`Minnesota residents, enter into contracts with Minnesota residents via the internet, and
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`collect payment for products from Minnesota residents via the internet. Defendants have
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`willfully engaged in unauthorized, false and misleading uses of Select Comfort’s
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`trademarks, which has caused and continues to cause harm to Select Comfort, a
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`Minnesota resident. Defendants continue to engage in unauthorized, false and misleading
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`2
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`use of Select Comfort’s trademarks even after the nature of these uses have been brought
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`to Defendants’ attention by Select Comfort.
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`FACTS
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`7.
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`Select Comfort designs, manufactures and markets unique air bed products,
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`many features of which are either proprietary or protected by the patent laws of the
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`United States. Select Comfort’s Sleep Number® bed uses uniquely designed air
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`chambers to provide a gentle cushion of support which can be easily adjusted to an
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`individual’s preference, comfort and firmness. Studies show that the Sleep Number® bed
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`relieves back pain and improves sleep quality.
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`8.
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`Select Comfort is the owner of all rights in the trademark Sleep Number®,
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`including United States Trademark Registration Nos. 2,753,633, 2,618,999 and 2,641,045
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`which registrations are incontestable. True and correct copies of these registrations are
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`attached as Exhibit A.
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`9.
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`Select Comfort is the owner of all rights in the trademark Select Comfort®,
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`including United States Trademark Registration Nos. 1,581,562, 1,590,557 1,976,214,
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`2,702,763, 2,801,405, and 2,803,623, which registrations are incontestable. True and
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`correct copies of these registrations are attached as Exhibit B.
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`10.
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`Select Comfort is the owner of all rights in the trademark What’s Your
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`Sleep Number®, including United States Trademark Registration No. 2,702,762, which
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`registration is incontestable. A true and correct copy of this registration is attached as
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`Exhibit C.
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`3
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`11.
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`The trademarks described above are collectively referred to as “Select
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`Comfort’s Trademarks” or “the Trademarks-At-Issue.”
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`12.
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`Select Comfort has an excellent reputation for both its unique product line
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`and superior quality of its products and services. Select Comfort was ranked the number
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`one bedding retailer in the United States by Furniture/Today for nine consecutive years.
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`13.
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`Sleep Number® beds and accessories are available nationwide at Select
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`Comfort retail stores in major shopping malls and other locations, through the company’s
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`national direct marketing operations, as well as through Select Comfort’s website at
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`sleepnumber.com.
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`14.
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`Select Comfort markets its Sleep Number® beds and related goods through
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`extensive advertising in, inter alia, newspapers, national circulation magazines, direct
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`mailings, radio advertisements and television commercials and infomercials.
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`15. As a result of the innovation and quality of its products, together with the
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`widespread advertising and promotion thereof, Select Comfort has acquired a reputation
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`for quality, integrity and innovation, and it is well-known as the leading seller of
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`premium air-supported sleep products.
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`16. As a result of widespread use in connection with the advertising and
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`promotion of its Sleep Number® beds and related products, Select Comfort has developed
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`substantial good will and national recognition in the Trademarks-At-Issue as a source of
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`high-quality mattresses and bedding products.
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`17.
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`Indeed, the Sleep Number® and Select Comfort® marks, as well as the
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`What’s Your Sleep Number® mark, are among the most widely recognized trademarks in
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`the bedding industry.
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`DEFENDANTS
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`18. On information and belief, Dires was incorporated to control and conduct
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`business as Personal Touch and Personal Comfort.
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`19. On information and belief, at the time Dires was incorporated, Baxter
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`intended to engage in the illegal, infringing, misleading, and deceptive acts alleged
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`herein.
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`20. Baxter was formerly employed by Comfortaire Direct LLC and/or
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`Comfortaire Corporation (collectively “Comfortaire”).
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`21. Comfortaire manufactures and sells a line of adjustable airbeds that
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`compete with Select Comfort’s products.
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`22. When employed by Comfortaire, Baxter had resposibilites related to and
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`developed Comfortaire’s online advertising of its adjustable airbeds.
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`23. At Baxter’s direction, Comfortaire’s online advertising through internet
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`search engines, such as Google, was nearly identical to the tactics now used by
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`Defendants as described herein.
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`24.
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`For example Comfortaire, at Baxter’s direction, purchased Select Comfort’s
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`Trademarks as search terms in Google’s Adwords program and paid to have an ad
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`displayed when a consumer searched for “Sleep Number” that stated “Sleep 55% Off
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`Number Bed.”
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`25. Due to this, and other conduct, Select Comfort filed a lawsuit against
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`Comfortaire in the United States Distirct Court for the Distrct of Minnesota, styled Select
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`Comfort Corporation v. Comfortaire Direct LLC and Comfortaire Corporation, Court
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`File No. 11-cv-00622 (DWF/JJK).
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`26. As set out in the complaints against Comfortaire, Comfortaire engaged in
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`much of the same wrongful conduct that Defendants are now engaging in as described
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`herein.
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`27. As a result of the complaints filed against it, Comfortaire agreed to cease its
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`wrongful and infringing conduct.
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`28. On information and belief, Baxter’s employment with Comfortaire ceased.
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`29. Baxter also formerly operated an entity named Zero Gravity that ran a
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`website at www.zerogravitybed.com. While operating this business, Baxter and Zero
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`Gravity infringed on Select Comfort’s Trademarks and engaged in other deceptive
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`conduct identified in a February 13, 2008 cease and desist letter sent by Select Comfort
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`and attached hereto as Exhibit D.
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`30. On or about August 1, 2012, Baxter and other directors and members of
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`Dires, if any, formed and registered Dires, LLC.
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`31. On information and belief, Baxter and other directors and members of
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`Dires, if any, formed Dires for the improper purpose of shielding themselves from
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`personal liability arising from the illegal, infringing, misleading, and deceptive acts
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`alleged herein.
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`32. On information and belief, Baxter was personally involved, controlled,
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`directed, and directly participated in Defendants’ infringing conduct alleged herein. On
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`information and belief, Baxter supplied Dires with the infringing advertising alleged
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`herein, and has the ultimate authority to direct the infringing conduct.
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`DEFENDANTS’ ACTIVITIES
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`33. Defendants operate domain names and websites at personalcomfortbed.com
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`and personaltouchbed.com though which they sell air mattresses and related products to
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`purchasers in all 50 states.
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`34.
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`In connection with the sale and promotion of their air beds and related
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`products, Defendants engage in unauthorized use of and infringe upon Select Comfort’s
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`Trademarks.
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`35. Defendants have no rights in any of Select Comfort’s Trademarks.
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`36. Google Adwords is an advertising product offered by Google. Google
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`Adwords allows entities or individuals to purchase advertising space and will display the
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`advertiser’s advertising text to consumers who search for terms purchased by the
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`advertiser. A Google user can click on the purchased advertisement and will be directed
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`to a website of the advertiser’s choosing.
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`37. On information and belief, Defendants purchase Select Comfort’s Select
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`Comfort® Trademark, or a portion thereof, as a search term via Google’s Adwords
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`program, and other similar internet advertising platforms or shopping sites.
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`38. On information and belief, Defendants purchase Select Comfort’s Sleep
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`Number® Trademark, or a portion thereof, as a search term via Google’s Adwords
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`program, and other similar internet advertising platforms or shopping sites.
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`39. Defendants purchase search terms that include the words “Select Comfort”
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`and “Sleep Number” to lure consumers, cause confusion, or divert customers seeking
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`Select Comfort’s goods, services, or website.
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`40. Defendants further attempt to deceive consumers, as well as Google’s
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`search algorithm, through the use of confusing and infringing ad links displayed in the
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`Google search results, such as by inserting the phrase “50% off” into Select Comfort’s
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`trademarks.
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`41.
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`For example, a user searching for Sleep Number® products by searching the
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`term “Sleep Number bed” may be shown a link titled “Sleep 50% Off Number Beds,” as
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`reflected below.
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`42. Defendants further the confusion by displaying a domain website address
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`that uses Select Comfort’s Trademarks. Specifically, Defendants display the address
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`www.personalcomfortbed/vSleepNumber. However, neither the link “Sleep 50% Off
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`Number Beds” nor the address displayed lead to a website that sells genuine Sleep
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`Number® products. Rather, they lead to Defendants’ website.
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`43.
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`Similarly, a user searching for Sleep Number® products by searching the
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`term “Number bed” may be shown a link titled “Sleep 50% Off Number Beds” and an
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`address of www.personalcomfortbed.com/SleepNumber, as reflected below. This link
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`and address lead to Defendants’ website, not a website that sells genuine Sleep Number
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`products.
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`44. Defendants use similar tactics when consumers search for “Select Comfort
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`bed,” as reflected in the example below.
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`45.
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`In addition, Defendants infringe Select Comfort’s Trademarks in attempt to
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`confuse customers and divert sales from Select Comfort to Defendants through internet
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`
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`shopping sites.
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`46.
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`For example, on Google’s shopping site a consumer searching for “Sleep
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`Number bed” is presented with an advertisement for “A5 bed by Select Personal Sleep
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`Comfort Number Beds.”
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`47. A similar advertisement is displayed when consumers search for “Number
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`Bed.”
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`48. None of these links lead to a website that sells genuine Select Comfort
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`products. Rather, the links lead to Defendants’ website.
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`49.
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`In sum, as a result of the above-described search term purchases, users
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`searching for Select Comfort products by inputting the search terms “Select Comfort
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`Bed,” “Sleep Number Bed,” or “Number Bed” are presented misleading and infringing
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`links to Defendants’ websites among the sponsored links prominently displayed near the
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`top of the search results page or the homepage for the advertising website.
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`50. Defendants’ purchase and/or use of the keywords including “Select
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`Comfort,” “Sleep Number,” and “Number Bed” in Internet search engines and
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`advertising sites, as referenced above, was made with knowledge of Select Comfort’s
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`rights in Select Comfort® and Sleep Number® marks.
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`51. Defendants’ purchase and/or use of the keywords including “Select
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`Comfort,” “Sleep Number,” and “Number Bed” in Internet search engines and
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`advertising sites is intended as a means of advertising its products on the internet.
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`52. Defendants’ purchase and/or use of the keywords including “Select
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`Comfort,” “Sleep Number,” and “Number Bed” in Internet search engines, advertising
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`sites, and shopping sites allows Defendants to use and trade off of Select Comfort’s
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`Trademarks in commerce to promote, sell, offer for sale or otherwise distribute
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`Defendants’ own products.
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`53. Defendants’ purchase and/or use of the keywords including “Select
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`Comfort,” “Sleep Number,” and “Number Bed” in Internet search engines, advertising
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`sites, and shopping sites alone and in conjunction with its misleading and infringing
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`headline links, domain names and website addresses that are presented to consumers,
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`allows Defendants to mislead, misdirect, deceive, or confuse the public at large and
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`consumers seeking Sleep Number® beds and Select Comfort’s goods, services, or website
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`on the Internet.
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`54. Defendants purchased and/or used of the keywords “Select Comfort” and
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`“Sleep Number” in Internet search engines, advertising sites, and shopping sites and
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`continue to do so, to mislead, deceive and lure consumers, cause confusion, or divert
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`customers seeking Sleep Number® beds and Select Comforts’ goods, services, or
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`website.
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`55. Defendants further attempt to deceive consumers, as well as Internet search
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`engine algorithms, such as Google, by using Select Comfort’s Trademarks in the meta-
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`information for its websites and domain names and through the use of confusing and
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`infringing page headings displayed in the Internet search results page.
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`56.
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`Furthermore, Defendants’ continue their attempt to confuse and mislead
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`consumers through their websites by extensive and repeated uses of Select Comfort’s
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`Trademarks, far beyond the minimal use necessary to identify Select Comfort’s products
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`for comparison purposes, and in a manner likely to cause confusion among consumers.
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`57. Consumers who click on the infringing and deceptive links Defendants use
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`on internet search engines, advertising websites, and shopping sites and are diverted to
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`Defendants’ websites, or otherwise visit Defendants’ websites, are subjected to further
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`deceptive and infringing uses of Select Comfort’s Trademarks.
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`58.
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`For example, when on Defendants’ websites at personalcomfortbed.com or
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`personaltouchbed.com, the tab in Microsoft Internet Explorer prominently displays the
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`name “Sleep Number Bed,” as shown in the example below, despite Defendants not
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`selling and having no rights to sell Sleep Number® Beds.
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`59.
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`In addition, consumers who visit the personalcomfortbed.com website are
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`presented with advertising that states “Save up to 50% Off – Online Special Edition
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`Bed,” suggesting that consumers who search for Sleep Number can get an “online
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`edition” Sleep Number bed at 50% off. Personaltouchbed.com employs a similar tactic,
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`but states “Save up to 60% Off – Online Special Edition Bed.”
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`60. As reflected below, the advertisements on Defendants’ websites indicate
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`that Defendant’s price for the online bed is lower than “S.N. Price” for the same bed.
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`61. On information and belief, Defendants use these advertisements to deceive
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`consumers into believing they can get 50% - 60% off a Sleep Number® Bed online.
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`62. On information and belief, Defendants do not intend to sell any consumers
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`a discounted “online edition bed” and created this advertising fiction for the purpose of
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`creating false and deceptive price comparisons and baiting consumers to contact
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`Defendants to allow Defendants to sell consumers a different, more expensive bed.
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`63.
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`The personaltouchbed.com and personalcomfortbed.com websites include
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`additional uses of or variations on Select Comfort’s trademarks that are likely to cause
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`confusion among consumers.
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`64. Defendants use the tag line “What Number Are You?” which infringes and
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`is confusingly similar to Select Comfort’s “What’s Your Sleep Number?” Trademark.
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`65. Defendants have wrongfully and intentionally diverted sales from Select
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`Comfort to Defendants.
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`66. Defendants have realized sales from customers who entered “Select
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`Comfort Bed,” “Sleep Number Bed” or “Number Bed” as search terms in Google and
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`other Internet advertising websites.
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`67.
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`Select Comfort has lost sales due to Defendants’ illegal purchase and/or use
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`of Select Comfort’s Trademarks as keywords in internet search engines, advertising sites
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`and shopping sites.
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`68. Consumers who have searched for “Sleep Number Bed,” “Select Comfort
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`Bed” or “Number Bed” using internet search engines, advertising sites, and shopping
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`sites have been confused, deceived, and/or misled into believing that Defendants’ links
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`will direct them to Select Comfort’s Sleep Number® website, a website affiliated with
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`Select Comfort, and/or a website where they can purchase Sleep Number® beds and
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`Select Comfort® products online.
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`69.
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`Similarly, consumers who have searched for “Sleep Number Bed,” “Select
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`Comfort Bed” or “Number Bed” using internet search engines, advertising sites, and
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`shopping sites have been confused, deceived, and/or misled into believing that
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`Defendants’ advertising statements displayed on its paid links and headlines apply to, are
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`affiliated with, and/or are endorsed by Select Comfort and its Sleep Number® products.
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`70. As such, Defendants have misled, deceived, and/or confused the public at
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`large and consumers seeking Sleep Number® beds and Select Comfort’s goods, services,
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`or website.
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`71. Defendants began their uses of the Trademarks-At-Issue as described herein
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`long after Select Comfort began using said marks.
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`72.
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`The products which Defendants advertise and sell in connection with their
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`unauthorized use of Select Comfort’s Trademarks are highly related to the products sold
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`by Select Comfort in connection with Select Comfort’s use of the Trademarks-At-Issue.
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`73.
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`The unauthorized use of Select Comfort’s Trademarks by Defendants in the
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`manner described above enables Defendants to trade on and receive the benefit of good
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`will in Select Comfort’s Trademarks which Select Comfort has built up at great labor and
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`expense over many years. This unauthorized use by Defendants also enables Defendants
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`to gain acceptance for their own goods, not solely on the merits of those goods, but on the
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`reputation and good will of Select Comfort and its own trademarks.
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`74.
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`The unauthorized use of Select Comfort’s Trademarks by Defendants in the
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`manner described above is likely to cause confusion and/or deceive customers and
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`potential customers of the parties, as to some affiliation, connection or association of
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`Defendants with Select Comfort, or as to the origin, sponsorship, or approval of the
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`goods of Defendants by Select Comfort.
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`75.
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`The unauthorized use of Select Comfort’s Trademarks by Defendants in the
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`manner described above falsely designates the origin of the goods of Defendants, and
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`falsely and misleadingly describes and represents facts with respect to Defendants and the
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`goods of Defendants.
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`76.
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`The Sleep Number®, Select Comfort®, and What’s Your Sleep Number®
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`trademarks are famous marks as that term is defined in 15 U.S.C. 1125(c)(1).
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`77.
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`The unauthorized use of the Sleep Number®, Select Comfort®, and What’s
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`Your Sleep Number® trademarks by Defendants in the manner described above is likely
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`to dilute the distinctive quality of Select Comfort’s Trademarks.
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`78.
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`The unauthorized use of Select Comfort’s Trademarks by Defendants in the
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`manner described above unjustly enriches Defendants at Select Comfort’s expense.
`
`79.
`
`The unauthorized use of Select Comfort’s Trademarks by Defendants in the
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`manner described above removes from Select Comfort the ability to control the nature
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`and quality of the products provided under those marks and places the valuable reputation
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`and good will of Select Comfort in the hands of Defendants, and others, over whom
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`Select Comfort has no control.
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`80.
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`The unauthorized use of Select Comfort’s Trademarks by Defendants in the
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`manner described above is false and misleading.
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`81.
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`Select Comfort has, on many occasions, provided notice to Defendants of
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`the improper use of Select Comfort’s Trademarks and demanded that Defendants cease
`
`
`
`17
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`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00514
`Page 17
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`
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`CASE 0:12-cv-02899-DWF-SER Document 1 Filed 11/16/12 Page 18 of 24
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`the unauthorized uses of the Trademarks. Defendants failed and refused to comply with
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`Select Comfort’s rightful requests and demands.
`
`82.
`
`In addition, Defendants’ make numerous false, deceptive, misleading
`
`and/or unsubstantiated claims or claims with no objective support to the consuming
`
`public. For example, Defendants have claimed that their beds are “preferred 6 to 1 over
`
`Sleep Number.”
`
`83. Defendants recently changed this claim to state “preferred 6 to 1 over
`
`leading national brand” and “preferred over Sleep Number.”
`
`84. However, Defendants have no independent substantiation or objective
`
`support to make these claims.
`
`85. Defendants’ claims that their beds are “preferred 6 to 1 leading national
`
`brand” or “preferred over Sleep Number” are false, deceptive, or misleading.
`
`86. Defendants also include on their websites statements that purportedly
`
`compare Select Comfort’s products to Defendants’ products.
`
` Many of these
`
`“comparison” statements, however, are deceptive, false, misleading, and/or lack
`
`independent substantiation or objective support.
`
`87. Defendants’ use of such “comparison” statements is false, deceptive, or
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`misleading.
`
`88.
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`In addition, Defendants market their air beds using a model lineup naming
`
`convention that mirrors the naming convention used by Select Comfort for its air bed
`
`model lineup in an effort to confuse and mislead consumers as to the difference between
`
`Defendants’ air beds and genuine Sleep Number® air beds.
`
`
`
`18
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`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00514
`Page 18
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`
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`CASE 0:12-cv-02899-DWF-SER Document 1 Filed 11/16/12 Page 19 of 24
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`89. Defendants have also presented health-related testimonials on their
`
`websites and through social media such as Facebook that are deceptive because they lack
`
`independent substantiation or objective support. These testimonials, for example, imply
`
`that Defendants’ products cure or relieve back pain.
`
`90. Defendants’ use of such testimonials is false, deceptive, or misleading.
`
`91. Defendants expect that consumers will rely on Defendants’ false, deceptive,
`
`or misleading representations in purchasing products from Defendants.
`
`92. Consumers do rely, and have relied, on Defendants’ false, deceptive, or
`
`misleading representations in purchasing products from Defendant and have therefore
`
`been misled and harmed by Defendants’ tactics.
`
`93. Defendants’ acts as described above have violated or injured the public’s
`
`and consumers’ ability to make accurate and informed purchasing decisions free from
`
`false, misleading, deceptive, and unfair representations and trade practices.
`
`94. Defendants’ acts as described above have injured Select Comfort by, inter
`
`alia, diverting customers from Select Comfort.
`
`95. Defendants’ false, deceptive, or misleading representations and trade
`
`practices described herein are directed to, and injure, the public at large and Minnesota
`
`consumers.
`
`96. Defendants’ acts complained of herein were and continue to be committed
`
`willfully and intentionally.
`
`97.
`
`Select Comfort has suffered and will continue to suffer monetary damages
`
`as a result of Defendants’ wrongful acts.
`
`
`
`19
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`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00514
`Page 19
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`
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`CASE 0:12-cv-02899-DWF-SER Document 1 Filed 11/16/12 Page 20 of 24
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`98. Defendants’ activities have caused irreparable injury to Select Comfort,
`
`Minnesota consumers, and the public at large and, unless enjoined by this Court, will
`
`continue to cause irreparable injury to Select Comfort, Minnesota consumers, and the
`
`public at large. There is no adequate remedy at law for this injury.
`
`COUNT ONE
`
`FEDERAL TRADEMARK INFRINGEMENT
`
`99.
`
`Select Comfort repeats the allegations above as if fully set forth herein.
`
`100. The acts of Defendants complained of herein constitute infringement of
`
`Select Comfort’s federally registered marks in violation of 15 U.S.C. § 1114(1).
`
`101. Defendants’ conduct has been willful and in bad faith making this an
`
`exceptional case within the meaning of 15 U.S.C. § 1117(a).
`
`COUNT TWO
`
`FEDERAL UNFAIR COMPETITION
`
`102. Select Comfort repeats the allegations above as if fully set forth herein.
`
`103. The acts of Defendants complained of herein constitute trademark
`
`infringement, trade dress infringement, unfair competition, and false designation of origin
`
`in violation of 15 U.S.C. § 1125(a).
`
`COUNT THREE
`
`FEDERAL DILUTION OF TRADEMARK
`
`104. Select Comfort repeats the allegations above as if fully set forth herein.
`
`105. The acts of Defendants complained of herein constitute trademark dilution
`
`in violation of 15 U.S.C. § 1125(c).
`
`
`
`20
`
`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00514
`Page 20
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`
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`CASE 0:12-cv-02899-DWF-SER Document 1 Filed 11/16/12 Page 21 of 24
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`COUNT FOUR
`
`FALSE ADVERTISING – 15 U.S.C. § 1125(a)
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`106. Select Comfort repeats the allegations above as if fully set forth herein.
`
`107. The acts of Defendants complained of herein constitute the making of false
`
`representations, claims and statements in connection with goods distributed in interstate
`
`commerce in violation of 15 U.S.C. § 1125(a).
`
`COUNT FIVE
`
`DECEPTIVE TRADE PRACTICES
`
`108. Select Comfort repeats the allegations above as if fully set forth herein.
`
`109. The acts of Defendants complained of herein constitute deceptive trade
`
`practices in violation of the Minnesota Uniform Deceptive Trade Practices Act, Minn.
`
`Stat. § 325(D).44 et seq.
`
`COUNT SIX
`
`UNLAWFUL TRADE PRACTICES
`
`110. Select Comfort repeats the allegations above as if fully set forth herein.
`
`111. The acts of Defendants complained of herein constitute violations of the
`
`Minnesota Unlawful Trade Practices Act, Minn. Stat. § 325D.09 et seq.
`
`COUNT SEVEN
`
`FALSE STATEMENTS IN ADVERTISING
`
`112. Select Comfort repeats the allegations above as if fully set forth herein.
`
`
`
`21
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`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00514
`Page 21
`
`
`
`CASE 0:12-cv-02899-DWF-SER Document 1 Filed 11/16/12 Page 22 of 24
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`113. The acts of Defendants complained of herein constitute false statements in
`
`advertising in violation of the Minnesota False Statement in Advertising Act, Minn. Stat.
`
`§ 325F.67.
`
`COUNT EIGHT
`
`CONSUMER FRAUD
`
`114. Select Comfort repeats the allegations above as if fully set forth herein.
`
`115. The acts of Defendants complained of herein constitute consumer fraud in
`
`violation of the Minnesota Consumer Fraud Act, Minn. Stat. § 325F.69 et seq.
`
`COUNT NINE
`
`UNJUST ENRICHMENT
`
`116. Select Comfort repeats the allegations above as if fully set forth herein.
`
`117. The acts of Defendants complained of herein constitute unjust enrichment
`
`of Defendants at Select Comfort’s expense.
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`PRAYER FOR RELIEF
`
`WHEREFORE, Select Comfort prays for judgment as follows:
`
`1.
`
`A permanent injunction enjoining and restraining Defendants and their
`
`agents, employees, officers, servants, representatives, successors and assigns and others
`
`in active concert or in participation with Defendants:
`
`a.
`
`from the use, in any manner whatsoever, including keyword
`
`purchasing, of the marks Sleep Number® or Select Comfort®, or
`
`combinations or variations thereof, including phonetic equivalents;
`
`
`
`22
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`American National Manufacturing, Inc.
`EXHIBIT 1062
`IPR2019-00514
`Page 22
`
`
`
`CASE 0:12-cv-02899-DWF-SER Document 1 Filed 11/16/12 Page 23 of 24
`
`b.
`
`from using any of the false and/or misleading advertising statements
`
`described above;
`
`c.
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`to deliver up for destruction, or otherwise destroy all advertising and
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`promotional materials containing any use of the Sleep Number® or
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`Select Comfort® trademarks or any false or misleading statements;
`
`and
`
`d.
`
`with such injunction including a provision directing Defendants to
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`file with the Court and serve on Select Comfort within thirty (30)
`
`days following the injunction a report in writing, and under oath,
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`setting forth in detail the manner and form in which Defendants have
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`complied with the injunction.
`
`2.
`
`Requiring a payment of damages or an accounting of profits made by
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`Defendants as a result of the acts complained of herein;
`
`3.
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`Awarding damages equal to three times the amount s
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