Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA128083
`ESTTA Tracking number:
`03/05/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91174153
`Defendant
`Jako AG
`Plaintiff
`JATO Athletics, LLC
`
`Proceeding.
`Applicant
`
`Other Party
`
`Motion for Suspension in View of Civil Proceeding With Consent
`
`The parties are engaged in a civil action which may have a bearing on this proceeding. Accordingly, Jako AG
`hereby requests suspension of this proceeding pending a final determination of the civil action. Trademark
`Rule 2.117.
`Jako AG has secured the express consent of all other parties to this proceeding for the suspension requested
`herein.
`Jako AG has provided an e-mail address herewith for itself and for the opposing party so that any order on
`this motion may be issued electronically by the Board.
`
`Certificate of Service
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by First Class Mail on this date.
`Respectfully submitted,
`/fjc/
`Frank J. Colucci
`email@colucci-umans.com, rjacobson@colucci-umans.com
`dskeels@whitakerchalk.com, todd@jatoathletics.com
`03/05/2007
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`. _ _ _ _ _ _ _ _ _ _ _ _ _ . _ _ . . _ _ _ _ . . _ _ _ . _ . - _ _x
`
`JATO ATHLETICS, LLC,
`
`Opposer,
`
`: Opposition No. 91,174,153
`
`v.
`JAKO AG,
`
`Applicant
`
`: Serial No. 78I235,150
`
`_ _ _ . _ _ _ _ . _ _ _ . . _ _ _ _ _ . . . _ _ _ . . . . _ _ _ - - X
`
`MOTION ON CONSENT TO SUSPEND FOR CIVIL ACTION
`
`Applicant, JAKO AG, hereby moves the Honorable Trademark Trial and
`
`Appeal Board pursuant to 37 C.F.R. § 2.117(a) and (c) for an order of the Honorable
`
`Trademark Trial and Appeal Board suspending the above-captioned opposition
`
`proceeding on the grounds that the Opposer and a related company_of Applicant are
`
`engaged in a pending civil action, and the final determination of the civil action is likely
`
`to have a bearing on the case before the Board in this opposition proceeding.
`
`In support of this motion, Applicant submits the following:
`
`1. The civil action captioned as JATO ATHLETICS, LLC v. JAKO USA,
`
`LLC, Civil Action No. 4:06CV—595-Y (hereinafter, “the Civil Action"), is pending in the
`
`United States District Court for the Northern District of Texas, Fort Worth Division.
`
`Opposer in the pending opposition is the plaintiff in the Civil Action. Applicant, JAKO
`
`AG, is a minority shareholder of the defendant in the Civil Action, JAKO USA, LLC.
`
`2. The factual and legal issues in the subject opposition are identical to
`
`the factual and legal issues in the Civil Action, that is, whether there is a likelihood of
`
`confusion between the O’pposer’s JATO 8. Design and JATO ATHLETICS & Design
`
`

`
`marks and applicant's JAKO & Design mark. The Civil Action will be dispositive of all
`
`the issues raised by Opposer’s Notice of Opposition.
`
`3. Applicants Answer in this proceeding currently is due on March 5,
`
`2007.
`
`4. Since the issue to be decided by the district court in the Civil Action will
`
`have a direct bearing on the outcome of the proceedings before the Board, Applicant
`
`moves to suspend the proceedings in Opposition No. 91,174,153 until the termination of
`
`the Civil Action. A copy of the Complaint that Opposer filed in the Civil Action is
`
`annexed hereto. Accordingly, Applicant respectfully requests that the Board suspend
`the instant proceeding pending the resolution of the Civil Action.
`.
`
`5. This motion is made with the consent of Opposer, through its counsel
`
`in the Civil Action, David A. Skeels, Esq., who represented by telephone on March 5,
`
`2007 that he was authorized to consent on behalf of Opposer.
`
`Dated: New York, New York
`
`March 5, 2007
`
`COLUCCI & UMANS
`
`By E
`
`Frank J. Co
`
`ci
`
`Attorneys for Applicant
`218 East 50"‘ Street
`
`New York, New York 10022
`Telephone:
`(212) 935-5700
`Facsimile:
`(212) 935-5728
`Email: emai|@co|ucci—umans.com
`
`

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`JATO ATHLETICS, LLC,
`Plaintiff,
`
`v.
`
`JAKO USA, LLC,
`‘
`Defendant.
`
`‘
`
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`JURY TRIAL DEMANDED
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`
`PLAINTIFF‘S ORIGINAL COMPLAINT
`
`COMES NOW PLAINTIFF JATO ATHLETICS, LLC, and complains ofDefendant JAKO
`
`USA, LLC. Plaintiff would respectfully show the Court as follows:
`
`A. Parties
`
`1.
`
`Plaintiff, JATO Athletics, LLC (“JATO”), is a Limited Liability Company that is
`
`organized under the laws of the State of Texas.
`
`2.
`
`Defendant, JAKO USA, LLC (“JAKO”), is a Limited Liability Company that is, on
`
`information and belief, organized under the laws of the State ofNew Jersey. Pursuant to Tex. Civ.
`
`Prac. & Rev. Code § 17.044(b):
`
`(a) JAKO is a nonresident of Texas; (b) the Texas Secretary of
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`State is the agent for service on the nonresident; (c) JAKO currently engages and has engaged in
`
`business in Texas, including internet sales and the sponsorship oflocal soccer teams; (d) JAKO does
`
`not maintain a regular place of business in Texas; (e) JAKO does not have a designated agent for
`service ofprocess in the State ofTexas; and (I) this lawsuit arises out of.¥AKO’s business in Texas.
`
`Therefore, service may be effected on Defendant by serving the Texas Secretary of State, via
`
`certified mail fi’om Plaintiff, to P.O. Box 12079, Austin, Texas 78711-2079, or by serving the
`
`Secretary of State via private process server at the Secretary of State’s street address, 1019 Brazos
`
`PIaintrfi"s Original Complaint
`F:\Stor\Das\JATO\Pleadings\Comp1aint2.wpd
`
`Page 1
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`Exhibit A
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`St., James E. Rudder Building, Austin, Texas, 78701, with two copies ofthe process along with the
`
`accompanying copies of this Petition, with the instruction to forward the same by certified mail,
`
`return receipt requested, to Defendant’s principal place of business, addressed as follows: JAKO
`
`USA, LLC, President Markus Maritz, 44 White Meadow Road, Hillsborough, New Jersey 08844.
`
`B. Jurisdiction
`
`3.
`
`This Court has subject matter jurisdiction over the lawsuit pursuant to 28 U.S.C. §
`
`1331. Specifically, this is, among other things, an action for trademark infringement and unfair
`
`competition that arises out of 15 U.S.C. §§ 1117 and 1125. Pursuant to U.S.C. § 1332, the Court
`
`also has diversity jurisdiction in that the parties are citizens of different states and the amount in
`
`controversy exceeds $75,000.00.
`
`4.
`
`This Court has personaljurisdiction over Defendant because Defendant has sufficient
`
`contacts with the State ofTexas and with this District that it could reasonably anticipate being hailed
`
`into Court here, including specifically, but without limitation, Defendant’ s nationwide internet sales,
`
`including those in Texas, and its efforts to market its brand to clubs in Texas, including at least one
`
`in Arlington, Texas. Maintaining the suit in this Court would not offend traditional notions of fair
`
`play and substantial justice.
`
`C. Venue
`
`5.
`
`T
`
`Venue is properly laid in this District pursuant to 28 U.S.C. 1391(b) because a
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`substantial part of the events or omissions giving rise to Plaintiffs claims occurred in this district.
`
`D. Conditions Precedent
`
`6.
`
`All conditions precedent have been performed or have occurred.
`
`Plaint:)f7’s Original Complaint’
`F:\Stor\Das\JATO\Pleadings\Comp1aint2.wpcl
`
`Page 2
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`7.
`
`JATO sells athletic clothing and apparel and provides athletic training, business
`
`consulting, and sports education services for various skill levels, both amateur and professional, and
`
`for various types of competition in a variety of sports.
`
`8.
`
`JATO has, since 1993, promoted and marketed its business throughout the United
`
`‘States. Plaintiff' markets its apparel, training programs, and other services to athletes and other
`
`customers in a number of sports, but its primary emphasis has always been in soccer.
`
`9.
`
`JATO has spent many years developing its excellent reputation in the athletic training
`
`and apparel industries, and in protecting its valuable and “fancifiil” mark. Further, as a result of
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`extensive use and promotion ofthis mark, Plaintiff’ s graphic mark and its word mark have acquired
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`a favorable reputation to consumers as identifiers and symbols ofPlaintiff‘and its products, services,
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`and goodwill. Accordingly, the graphics and word marks are strong and are entitled to broad
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`protection.
`
`10.
`
`JATO is the owner of certain trademarks and owns the trademark in its distinctive
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`logo, which consists of two elongated and curved triangles, both of which are shaded in, and the
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`trademark in its name “JATO,” which is spelled using four capital letters in a wide, yet simple, block
`
`font.
`
`Its trademarks are registered with the United States Patent & Trademark Office as US.
`
`Trademark Registration No. 2,527,141, which issued on January 8, 2002, and Registration No.
`2,7l‘8,l18, which issued on May 20, 2003. The registrations cover multiple classes, including
`
`International Class 25 relating to athletic clothing and apparel. The registration reflects a first use
`
`in commerce date at least as early as May 1, 1994. JATO’s marks are also the subject of apending
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`trademark registration application with serial number 78/823299.
`
`Plaintiff's Original Complaint
`F:\Stor\Das\JATO\Pleadings\Complainl2.wpd
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`11.
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`Plaintiff continues to invest substantial sums in promoting its products and services
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`offered under the JATO logo and word mark. JATO uses its trademarks to promote its training
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`programs, athletic apparel, and other services. JATO also uses its name and promotes its mark in
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`connection with various educational and charitable endeavors. The trademark is featured
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`prominently on JATO’s goods and athletic apparel, on JATO’s website, which has been in existence
`
`since 1998, and on all of its promotional literature and advertisements.
`
`12.
`
`JATO’s trademarks were first used in commerce in the United States, by JATO, at
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`least as early as May 1994. They have been used continuously since that time, have not been
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`abandoned, and are extremely valuable pieces of intellectual property for JATO.
`
`13.
`
`On information and belief, JAKO USA (“JAKO”) did not begin its U.S. business
`
`operations until 2004, and JAKO’s attempts to secure trademark protection from the USPTO have
`thus far been unsuccessfirl. Defendant is using its name “JAKO” and a logo that is confiisingly
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`similar to JATO’s logo to promote its soccer apparel and equipment in the U.S., including in Texas.
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`For example, it is selling soccer apparel nationwide, through its website www.jakousa.com, and is
`
`sponsoring local soccer clubs, including one in Arlington, Texas. A comparison of the nearly
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`identical marks is attached hereto as Exh. A. The-se substantially sirniiar marks are likely to confuse
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`the public and potentially divert consumers from JATO to JAKO. JAKO’s use ofthese confusingly
`
`similar marks takes advantage of the goodwill that JATO has developed in its name and mark.
`JAI£O’s wrongful and misleading use ofthe marks constitutes trademark infiingement, tends to
`
`dilute the value of Plaintiff's mark in violation of 15 U.S.C. § 1l25(c)(1) and Tex. Bus. & Corn.
`
`Code § 16.29, and violates various unfair competition laws, including but not limited to § 43(a) of
`
`the Lanham Act, 15 U.S.C. § 1125(3).
`-\
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`Plcu'rm:t}"’s Original Complaint
`F:\Stor\Das\JATO\P1eadings\Complaint2.wpd
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`Page 4
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`14.
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`Despite the limitless other marks that Defendant could have chosen, it wrongfully
`
`appropriated a mark nearly identical to Plaintiffs word mark and logo for use in Plaintiffs same
`
`industry, without permission or other authorization from Plaintiff.
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`15.
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`Defendant’s wrongful activities are believed to be willful because Defendant chose
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`a trademark nearly identical to Plaintiffs mark, even though a basic trademark search would have
`
`revealed Plaintiff’ s federal registrations for the nearly identical marks for identical types ofproducts.
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`F. Qauses of Action
`
`Count 1 - Trademark Infringement Under the Lanham Act
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`16.
`
`All allegations set forth above, and the additional allegations set forth below, are
`
`incorporated here by reference, as if set forth in full.
`
`17.
`
`Defendant's unauthorized use of the word mark “JAKO,” and its use of a graphic
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`mark consisting of two shaded, elongated, curved triangles, whether used separately or in
`
`conjunction with one another, falsely indicates to consumers that Defendanfs soccer apparel and
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`other athletic apparel, as well as its efforts to sponsor individual soccer clubs, originate fi-om, are
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`approved by, are sponsored by, are licensed by, or are affiliated with Plaintiff or are otherwise
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`associated with Plaintiffs athletic training services and line of athletic apparel.
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`18.
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`Defendant’s unauthorized use of its JAKO word mark and logo in the manner
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`described above is likely to cause confusion, to cause mistake, or to deceive customers and potential
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`cusiomers of the parties, for example by causing them to believe that there is some affiliation,
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`connection, or association of Defendant with Plaintiff.
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`19.
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`Defendant’s actions, as set forth above, constitute trademark infringement in violation
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`ofthe Lanhazm Act, 15 U.S.C. § 1114(1).
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`PIaint:_',f)"s Original Complaint
`F:\Stor\Das\JATO\P1eadings\Complaint2.wpd
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`Page 5
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`Count 2 - Unfair Competition Under the Lanham Act
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`20.
`
`All allegations set forth above, and the additional allegations set forth below, are
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`incorporated here by reference as if set forth in full.
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`21.
`
`Defendant’s actions, as set forth above, constitute unfair competition in violation of
`
`the Lanham Act, 15 U.S.C. § 1125(a)(1)(c).
`
`Connt 3 - Common-Law Unfair Competition Under Tans State Law
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`22.
`
`All allegations set forth above, and the additional allegations set forth below, are
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`incorporated here by reference as if set forth in fiill.
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`23.
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`Defendant’s actions, as set forth above, constitute unfair competition under the
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`common law of the State of Texas.
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`Count 4 — Infringement and Dilution ofRegistered Mark Under Texas Law
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`24.
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`All allegations set forth above, and the additional allegations set forth below, are
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`incorporated here by reference as ifset forth in full.
`
`I
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`25.
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`Defendant’s actions, as set forth above, constitute trademark infringement, dilution,
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`and injury to a business reputation in violation of Tex. Bus. & Com. Code §§ 16.26 and 16.29.
`
`Ln
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`26.
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`A11 allegations set forth above, and the additional allegations set forth below, are
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`incorporated here by reference as if set forth in fiill.
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`‘
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`27.
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`Defendant’s unauthorizeduse ofa word mark and graphic mark that are confusingly
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`similar to JATO’s marks, including the use of a graphic mark consisting of two shaded, elongated
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`triangular figures, removes from Plaintiff the ability to control the nature and quality of goods and
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`services provided under its own JATO word mark and logo and places the valuable reputation and
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`Plaintifl"s Original Complaint
`F:\Stor\Das\JATO\Pleadings\Complaint2.wpd
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`Page 6
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`goodwill of Plaintiff in the hands of Defendant.
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`28.
`
`By reason of the foregoing, Plaintiff has been and will continue to be irreparably
`
`harmed and damaged. Plaintiffs remedies at law are inadequate to compensate for this harm and
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`damage.
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`29.
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`Unless Defendant’s unlawful acts are restrained by the court, they will continue,
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`‘ causing irreparable injury to Plaintiffand to the public, for which there is no adequate remedy at law.
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`30.
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`As a direct and proximate result ofDefendant’s conduct, Plaintiffhas suffered actual
`
`damages and is entitled to recover enhanced damages for willful infi-ingement.
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`31.
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`It is believed that Defendant knew that its unauthorized use of a mark confusingly
`
`similar to Plaintiff’ s would result in a benefit to Defendant. As such, Defendant has been unjustly
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`enriched.
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`32.
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`Defendant’s unauthorized use ofa word mark and graphic mark that are confusingly
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`similar to JATO’s marks, including the use of a graphic mark consisting of two shaded, elongated
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`triangular figures, unjustly enriches defendant at the expense ofP1aintiff’s reputation and goodwill.
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`H. Injunctive Relief Ljnder Federal Law
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`33.
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`Pursuant to 15 U.S.C. § 1116, and in order to preserve the status quo, Plaintiff seeks
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`a preliminary injunction until the time oftrial, and then a permanent injunction. Defendant cannot
`
`be allowed to continue in blatant violation of Plaintiffs marks. The harm to Plaintiff is imminent,
`
`as lAKO appears to be expanding its marketing efforts in the U.S., and the injury would be
`
`irreparable in that Defendant’s wrongful acts threaten to harm Plaintiff’ s reputation and confuse the
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`public. Further, Plaintiff has no adequate remedy at law if its reputation is harmed.
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`Plal'ntlfl’s Original Complain?
`F:\Stor\Das\JATO\P1eadings\Comp1aint2.wpd
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`Page 7
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`34.
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`Specifically, Plaintiffseeks injunctive reliefas follows: That JAKO be enjoined from
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`(a) using or promoting its word mark or logo; (b) using or promoting any other confusingly similar
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`mark; (c) competing unfairly with Plaintiff in any manner; and (d) conspiring with others to engage
`
`in trademark infringement or other types of unfair competition; and that Defendant be ordered to
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`deliver up for destruction all products and other items that bear infiinging trademarks in that order
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`‘ and to provide proof ofsame.
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`I. Injunctive Relief Under Texas Law
`
`3 5 .
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`Pursuant to Tex. Bus. & Com. Code § 16.29, this Court should enjoin Defendant from
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`further use of marks confusingly similar to Plaintiff‘ s trademarks. Defendant’ s actions are likely to
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`dilute Plaintiff’ s marks and injure the business reputation ofPlaintiff, especially since it is pursuing
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`a similar consumer base and market segment in this District, and elsewhere throughout Texas and
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`the U.S.
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`36.
`
`In light ofthe trademark registrations referenced above and the clearly infringing acts
`
`ofDefendant, Plaintiffhas shown a probable right to relief. Further, Plaintiffwill suffer a probable
`
`injury if Defendant’s actions continue unabated. Specifically, the harm to Plaintiff is imminent,
`
`because Defendant has recently made an aggressive push into Tarraut County, Texas, not to mention
`
`its nation-wide internet sales and marketing, which are ongoing. And the injury to Plaintiff would
`
`be irreparable because it would confuse the public and damage Plaintiff’s reputation. Plaintiffdoes
`notlhave an adequate remedy at law because De-fendant’s actions threaten to irreparably harm
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`Defendant’s reputation.
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`37.
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`Specifically, Plaintiffseeks injunctive reliefas follows: That JAKO be enjoined fi'om
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`(a) using or promoting its word mark or logo in the U.S.; (b) using or promoting any other
`v\
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`PIa:'ntif_)"’s Original Complaint
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`Page 8
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`confusingly similar mark; (c) competing unfairly with Plaintiff in any manner; and (d) conspiring
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`with others to engage in trademark infringement or other types of unfair competition; and that
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`Defendant be ordered to deliver up for destruction all products and other items that bear infringing
`
`trademarks in that order and that Defendant be ordered to provide proof of same.
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`J. Unjust Enrichment and Disgorgement
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`38.
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`Defendant should be disgorged ofall amounts by which it was unjustly enriched, and
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`Plaintiff should be compensated accordingly.
`
`K. Damages and Enhanced Damages
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`39.
`
`Plaintiffis entitled to recover damages for the actions set forth above. Accordingly,
`
`Plaintiff is entitled to an accounting ofDefendant's profits resulting from its infringement and unfair
`
`competition. Plaintiff is also entitled to recover damages in the amounts by which Defendant was
`
`unjustly enriched. Plaintiff is also entitled to enhanced or treble damages pursuant to 15 U.S.C. §
`
`1117(a).
`
`L. Defendant’s Registrations
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`40.
`
`All of Defendant’s pending trademark registration applications should be denied
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`andfor barred, to the extent they are identical to or confusingly similar to the word marks and graphic
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`marks referenced above, including but not limited to, the application bearing serial no. 78235150.
`
`Alternatively, consideration of such mark should be stayed until this lawsuit is resolved.
`1
`
`M. Attorney Fees
`
`41.
`
`On information and belief, Defendant researched and was aware of Plaintiffs
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`trademark. Nevertheless, it went forward doing business using a mark that is almost identical. As
`
`such, this is an exceptional case, and Plaintiffis entitled to an award ofattorney fees under 15 U.S.C.
`
`Plaintiffs Original Complaint
`F:\Stor\Das\JATO\P1eadings\Cornplaint2.wpd
`
`Page 9
`
`
`
`

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`of '3
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`§ 11 17(a). Also, Defendant is a much larger company than Plaintiff, and evidently believed that its
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`conduct would be unchecked.
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`N. Ju_Iy Trial
`
`42.
`
`Plaintiffhereby requests a jury trial.
`
`0. Pray;
`
`For these reasons, Plaintiffasks forjudgment against Defendant following ajury trial on the
`
`merits, for the following:
`
`a.
`
`Defendant, its officers, agents, servants, employees, and attorneys, and all
`
`persons in active concert or participation with any of them, be preliminarily
`
`and permanently enjoined from doing the following in the fifty United States:
`
`(1)
`
`Using the designation JAKO, or any other confusingly similar
`
`designation, in connection with the sale, promotion, advertising, or
`
`offering of soccer or other athletic apparel or athletic services,
`
`including the sponsorship of soccer clubs.
`
`(2)
`
`Using the JAKO graphic mark, which consists of two shaded,
`
`elongated triangular figures, or any other confusingly similar mark in
`
`connection with the promotion, advertising, or offering of soccer or
`
`other athletic apparel or athletic services, including the sponsorship
`
`‘
`
`of soccer clubs.
`
`(3)
`
`Competing unfairly with Plaintiffin any manner, including, without
`
`limitation, unlawfully adopting or infiinging on Plaintiffs Word mark
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`andfor graphic mark or adopting or using any other marks or
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`Plaintiffs Original Complain;
`F:\Stor\Das\JATO\P1eadings\Complaint2.wpd
`
`Page 10
`
`'\'c\\A\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\v§\\\\e:-e:-ek\\\\\:eeeeek\\>$-é:$$,{((((((((<-:-:-k\\\\\\\\\\\:-:-e:$_<{{_<_((({_<@>éA\\\\\\\\:-ee:$_{_m_{_{_{_<_<_<_<_<_<_<_<_&:
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`designations that are confusingly similar to Plaintiffs marks.
`
`(4)
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`Conspiring with, aiding, assisting, or abetting any other person or
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`entity in engaging in or performing any ofthe activities referred to in
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`subparagraphs (1), (2) and (3) above.
`
`(5)
`
`Bar Defendant from diluting Plaintiffs marks or injuring Plaintiffs
`
`marks specifically by using its confusingly similar marks to promote
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`its soccer apparel and related goods and services.
`
`‘b.
`
`Defendant, its officers, agents, servants, employees, and attorneys, and all
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`persons in active concert or participation with any of them, deliver up for
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`destruction, or show proof of destruction, of any and all products, labels,
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`signs, prints, packages, wrappers, receptacles, and advertisements, and any
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`other materials in their possession or control that depict or reference the
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`designation “JAKO” or the “double-triangle” logo or any other confiisingly
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`or substantially similar mark, and any materials or articles used for making
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`or reproducing the same, as provided by 15 U.S.C. § 1 118.
`
`c.
`
`Defendant file with the court and serve on Plaintiff, within 30 days after the
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`entry and service on Defendant ofan injunction, a report in writing and under
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`oath setting forth in detail the manner and form in which Defendant has
`
`complied with the provisions of subparagraph (b) above.
`
`d.
`
`An accounting be directed to determine defendant's profits resulting from
`
`infringement and unfair competition and that the profits be paid over to
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`Plaintiff, increased as the court finds to bejust according to the circumstances
`
`Phu'ntm"‘s Original Complaint
`F:\Stcr\Das\JATO\Pleadings\Complaint2.wpd
`
`Page 11
`
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`
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`
`------
`
`\\\\'\'\'CCCCC¢\\V{(k\\\\VCCCCCQ\\V\\\k\\\\\\\\\\\\\\\V\\\Q\\\>>\\\\\\\\\\\\>>x\\\\\\\‘{(({\\V>>>>>k\t\?\?\?-u----u.\\\\'\'\\\“-\-\:\\\\\'
`
`
`
`

`
`‘E
`
`of this case.
`
`e.
`
`Plaintiff recover all damages it has sustained as a result of Defendant’s
`
`infringement and unfair competition, and Defendant be disgorged of all
`
`amounts by which it was unjustly enriched.
`
`f.
`
`g.
`
`Plaintiff in addition be awarded treble damages under 15 U.S.C. § 11l7(a).
`
`The Court declare this case an exceptional case and award Plaintiff its
`
`reasonable attorney fees for prosecuting this action under 15 U.S.C. {$1 1 17(a).
`
`h.
`
`Under 15 U.S.C. § 1119, the Court order the United States Patent and
`
`Trademark Office to deny Defendant’s application for registration for its
`
`word mark and graphic mark.
`
`i.
`
`Plaintiff recover its costs of this action and prejudgment and postjudgment
`
`interest.
`
`j.
`
`Plaintiffhave all other reliefthe court deems appropriate or to which Plaintiff
`
`may show itselfj ustly entitled.
`
`
`
`State Bar No. 19587500
`
`David A. Skeels
`
`State Bar No. 24041925
`
`Whitaker, Chalk, Swindle & Sawyer, LLP
`301 Commerce Street, Suite 3500
`Fort Worth, Texas 76102-4186
`Telephone:
`(817) 878-0573
`Facsimile:
`(817) 878-0501
`ATTORNEYS FOR PLAINTIFF
`
`Page 12
`
`
`
`v:
`
`Plniuttjtfs Original Complaint
`F:\Stor\Das\JATO\Pleadings\Complaint2.wpd
`
`.«:-:\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ ..
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`

`
`
`
`

`
`
` .‘l?T3<‘is::tit"ii_t:1:rl*:
`3 S [{lECEIW_“i3
`QR
`CIVIL COVER SHEET
`IS 44 civil cover sheet and the information contained herein neither replace nor stltyplemenl the filing and service ofpleedinmg '1 E We EXWPI 85
`W ‘E “
`, is require
`the purpose
`‘
`‘-
`'
`'
`ll. Anu.
`“"v':“‘-’i|‘*!
`
`“E
`
`'3
`
`l
`
`t
`
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`
`i.’
`
`provided by local rules of court. This form, approved by the Judicial Conference ofthe nited States in September I974
`of initiating the civil docket sheet.
`(SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
`" ('0 PLAINTIFFS
`JATO ATHLETICS, LLC
`
`DEFENDANTS
`JAKOUSA’ LLC
`
`20
`
`05 AUG 21! PH 2: 50
`6:. {iii it UP’ so UFET
`County orizesiclence ofFiIst Listed Defendant
`‘
`(IN U.S. PLAl.‘N'l'IFF CASES ONLY)
`IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
`LAND INVOLVED.
`
`(b) County ofkeeidence of First Listed Plaintiff
`(EXCEPT IN US. PLAINTIFF CASES]
`
`NOTE:
`
`(c) Attorney's (Firm Nnne. Address, aI1dTelqihone Number)
`(31 7 ) 3 7 3.0590
`MackEdSwindIe&David Skecls, Whitaker Chalk Swindle&Snwyer,
`_______ _LLP, 301 Commerce St., Ste 3500, Fort Worth, TX 76102-4186
`III. BASIS FJU ' SDICTIO —
`(Phce an "x" in One Box Only)
`
`Attomeys (IfKnown)
`0 6 C V - 5 9 5 at Y
`
`11]. CITIZENSHIP 0 I " I I i.‘
`(For Diversity Cases Only)
`oer
`PTF
`III 1 D I
`
`Citizen ol‘T1ti.r suite
`
`:n—onr=: li.or;_srrs Flskilifi‘
`E’r‘;li’§"§}§3$l‘_3?$,<:~::e:.=:'
`and One Box for Defendant)
`I-nr
`one
`E 4
`CI 4
`
`Incorporated or Principal Place
`ofBusiness In This State
`
`El 1
`
`us. Government
`imintiil"
`
`8 3 Federal Qurrtion
`(us. Govermlterlt Nota Party)
`
`[I 2
`
`us. Government
`Defendant
`
`B 4 Diversity
`(Indicate Citizenship of Parties in Itan rm
`
`Citizen ofrxnother Slate
`
`CI 2
`
`D 2
`
`Incorpontted and Principal Place
`offlusinesl In Another State
`
`E] 5 E 5
`
`Citizcnorsubjectofa
`Foreign Country
`
`El 3
`
`El 3
`
`Foret'guNat:'on
`
`CI 6
`
`[J 6
`
`‘IT ‘I
`
`
`
`‘ "i§:-2&2 '
`III 620 Other Food & Drug
`
`
`El 625 Drug Related seiznte
`ofProperty 21 USC 381
`
`D 630 Liquor Laws
`
`El 640 RR. & Truck
`[I 650 Airline Regs.
`
`El 660 Occupational
`
`
`
`El 422 Appeal 2: use 158
`El 400 State Respportionrncnt
`El 423 witlnirmtl
`D no Antitrust
`23 use 157
`El 430 Bank: and Blinking
`D 450 Commerce
`460 Deportation
`“‘ 410 Racketeer Influenced and
`Corrupt Organizations
`El 480 Consumer Credit
`I 490 Cablelsat TV
`CI
`IIIO Selective Service
`aso securifiesloommoditierl
`Exchange
`CI 875 CI.lallnrnerClu1lengc
`I2 Usc arm
`CI 890 Other Statutory Actions
`El 891 Agricultural Acts
`cl 392 Economic Stabilization Act
`El 893 Environnlcntal Matters
`El 894 Energy Allocation Act
`El 895 Freedom oflrlformalimi
`Act
`D 900Appeal ofFee Determination
`Under Equal Access
`toluetice
`C! 950 Conatitlttionality or
`Silt: Sllitlllll
`
`
`
`
`
`
`
`PERSONAL I:N.rl.lIIY
`D 352 Personal Injury —
`Med. Malpractice
`CI 365 Personal Injtuy -
`Product Liability
`El 368 Asbestos Personal
`Injury Product
`Liability
`PERSONAL PROPERTY
`El 370 other Fraud
`l:I 371Trul'.l1inLctv:liug
`El 380 Other Personal
`Property Darnege
`:1 335 Property Damage
`
`PERSONAL INJURY
`[J 110 Insurance
`El 310 Airplane
`El I20 Marine
`[I 315 Airplane Product
`El 130 Miller Act
`Liability
`CI I40 Negotiable Instrurllent
`[j 150 Recovery ofOverplyrnent I 320 Assault, Libel J‘;
`3:. Bnfolcerrlcnt; ofJudgment
`Slander
`CI ISI Medicare Act
`I 330 Federal Employers’
`El 152 Recovery ofDefaulted
`Liability
`SIl1d€I.'ltLOIllS
`I 340 Muille
`(Exel. Veterms)
`I 345 Marine Product
`Cl 153 Recovery 0f0verpIym=IIt
`Liability
`ol‘Vetcnn's Benefits
`I 350 Motor Vehicle
`D I60 Stockholders’ Suits
`I 355 Motor Vehicle
`El I90 Other Contract
`Product Liability
`|_'_| I95 Contract Product Liability
`El I96 Franchise
`
`-
`
`~.
`
`.
`
`.
`i ‘
`
`lion
`
`|_| 4 U Land Coil
`D 220 Porccloruic
`D 230 Rent Lease & Ejectmcnt
`U 240 T0113 to Land
`CI 2.45 Tort ProduclLiabiIity
`El 290 All0lI1er Real Property
`
`'
`
`'
`
`‘
`
`'
`
`'
`
`_
`
`I. 440 Other Civil nigini
`
`
`
`,
`
`-
`
`
`
`
`
`
`CI 871 IRS--Third Party
`26 USC 7609
`
`
`
`El 690 0VVVVVVVVVVVVVVVVVVVVVVV
`3 _____________
`_____________ ,
`Lil ‘
`I we rj
`: , I-'3" Mir‘ §.&tt(1!‘:i‘$!:mde!r3:~
`CI 862 BleckLl:u:lg (923)
`Act
`~
`E1! 863 DlWC:'DIWW(-105(3))
`CI 720 Labor/Mgmt. Relations
`:1 130 L|bori'Mgrnt.ReporliIIg CI 864 ssn: Title
`8:. Disclosure Act
`__
`e':*§;§; ft} 740 Railway Labor Act
`elm;
`510 Motion: to Vucete
`D 790 Otlier Labor Litigation
`Sentence
`D 791 Empl. Rel. Inc.
`flabese Corpus:
`Security Act
`530 General
`535 Death Penalty
`540 Mandamus tic Other
`550 Civil Rights
`sss Prison Condition
`
`V- ORIGIN
`B I
`Original
`Proceedirl I
`
`(Place In or in one Box onl
`rreoetenecl from
`I3 2 Removed from
`3 Remanded from
`El 4 Reinstnted or Cl 5 another district
`CI 6 Multidistrict
`State Court
`A
`Ilate Court
`s
`c‘
`Re
`lied
`Liti
`tion
`Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
`1
`VI‘ CAUSE OF ACTION B1-iefdcscrjption of cause: Trademark infringement and unfair competition
`
`
`VII. REQUESTED IN
`COMPLAINT:
`
`VIII. RELATED CASE(S)
`IF
`
`El CHECK IF TI-[IS Is A cuss ACTION
`DEMAND s Injunction and
`UNDER F-R-C-E 23
`Damages
`NONE
`JUDGE
`
`.
`,
`(SR llI5i1'llCtl0l1l):
`
`CHECK YES only ifdemanded in conipluintz
`nmv DEMAND:
`is ves
`i:|No
`
`DOCKET NUMBER
`
`to | lstrict
`-
`'
`I P so fiom
`El 7 Ma 'strate
`I
`t
`U . S . C
`5% c t ion5
`4 and 11
`
`
` August 24, 2006
`
`‘
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`V
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`I
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`..
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`............................... ..
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`-FOROWICE........ ..
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`.
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`7'
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`........ .
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`.....