Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA785996
`
`Filing date:
`
`11/30/2016
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91230725
`
`Party
`
`Correspondence
`Address
`
`Defendant
`Casper Sleep Inc.
`
`BROOKE ERDOS SINGER
`DAVIS & GILBERT LLP
`1740 BROADWAY
`NEW YORK, NY 10019
`
`Submission
`
`Filer's Name
`
`Filer's e-mail
`
`bsinger@dglaw.com
`
`Motion to Suspend for Civil Action
`
`Lindsay Rodman
`
`lrodman@dglaw.com, bsinger@dglaw.com, jcipriani@dglaw.com,
`tsuhay@dglaw.com
`
`Signature
`
`Date
`
`/Lindsay Rodman/
`
`11/30/2016
`
`Attachments
`
`Casper Suspension Motion.pdf(1916784 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL -BOARD
`
`
`
`Casper S1eep'Inc.,
`
`
`"Applicant.
`
`MQPIQN FOR SUSPE1_\I§IO_N IN VIEW Q13‘ CIVIL PROCEEQING
`Pursuant to 37
`§. 2.1 l7(a) arid TBMP § 510.02(a), Applicant hereby requests that
`the Trademark Trial and Appeal Board (the “Board”) suspend the current.oppo'sitio_n (the
`taopposition”) pending resolution ofthe civilaction Ghosthed, Inc. v. Casper Sleep, Inc; (0:15-
`cv—-6257 1) in the United States District Court for the Southern District of Florida (the “Federal
`
`_
`
`Case’_’). See copies ofthe pleadings attached as Exhibit A.
`
`The Board routinely suspends oppositions pending the outcome of acivil acti'on.between
`
`parties in federal court so long as the civil action involves common issues in the proceeding‘
`
`before the Board. SeeCGeneral Motors Corp 1:. Cadillac Club Fashions, In_c., 22 _USPQ2d 1933,
`
`»l 93-6-37 (TTAB _1 992). Here, the complaint in the Federal Case includes a trademark
`
`infringement claim, as well as ‘related claims, in connection with the -identical mark at issue in the
`
`'
`
`Op'position,. BETTERSLEEP FOR BRIGHTER DAYS. ‘By suspend-ing the Opposition, the '
`
`Board would relievethe "parties from engaging in and ‘incurring the ex-pensejof a zduplicative I"
`
`proceeding when the Federal Case would -resolue'the'e1airns at issue.
`
`Accordingly, the Applicant hereby requests suspension of the Opposition_pending a final
`
`determination in the Federal Case.
`
`Werner Media Partners, LLC,
`
`— V _
`
`Opposer,
`
`_
`Opposition No. _9 1230725
`-
`-
`
`

`
`Dated: November 30, 2016
`
`Respectfizily Submitted,
`
`DAVXS & GILBERT
`
`_
`
`By:
`
`/Brogke Erdos Singer!
`Brooke Erdos Singer
`Lindsay M. Rqdman
`1740 Broadway
`M
`New York, New York 10019
`(212) 468-4800
`Attorneys for Applicant
`
`

`
`' EXHIBIT A
`
`

`
`Case 0:15-ev-62571-WPD Document 26 Entered on FLSD Docket 0410412016 Page 1 of 22
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`
`Case No. 0:15-cv-62571
`
`GHOSTBEI), INC.; and WERNER MEDIA
`PARTNERS, LLC dfb/a NATURE’S SLEEP,
`
`LLC.
`
`V.
`
`Plaintiffs,
`
`INC.; PHILIP KRIM;
`CASPER SLEEP,
`RED ANTLER, LLC; and ICS INC.,
`
`Defendants.
`
`‘
`
`I
`
`AMENDED COMPLAINT
`
`Plaintiffs, GhostBed, Inc. (“GhostBcd”) and Werner Media Partners, LLC.d/b/a Nature’s
`
`Sieep, LLC (“Nature’s -Sleep”), for their complaint state:
`
`INTRODUCTION
`
`1.
`
`This is an action for damages and injunctive relief arising,
`
`inter alia, out of
`
`Defendants’ unlawful conduct in trading on the goodwill of and mis'appropria'ting the valuable
`
`trademark rights of Piaintiffs and out of Defendants’ unfair competition and unfair and deceptive
`
`trade practices.
`
`2.
`
`Upon information and beiief, Defendants, Casper Sleep, Inc. (“Casper”), Philip
`
`Krim (“Krim”), Red Antler LLC (“Red Antler), and ICS Inc.
`(“ICS”), engaged in—and
`-knowingly facilitated and encouraged others to engage in——unlawful business practices involving
`the violation of Nature’s Sl'eep’s valuable trademark rights and involving false
`misleading
`
`advertising.
`
`i066l3463.2
`
`

`
`Case 0:15-cv-62571_~WPD Document 26 Entered on FLSD Docket 04/04/2016 Page 2 -of 22
`
`THE PARTIES
`
`3.
`
`GhostBed is a Deiaware - corporation with its principal place of business in
`
`Broward County, Fiorida.
`
`(ihostBed is engaged in the business of, among other things,
`
`I
`manufacturing and selling mattresses, beds, pillows, toppers, and foundations.
`4.
`Nature’s Sleep
`an Illinois limited iiabiiity corporation with its principal place of
`
`business in Broward County, Florida. Nature"s Sleep is engaged in the business of, among other
`things, manufacturing and selling mattresses, beds, pillows, toppers, and foundations.
`
`5.
`
`Upon information and belief, Casper Sleep is a Delaware corporation with its
`
`principal place of business in New York County, New York. Casper is engaged in the business
`of, among other things, manufacturing and selling mattresses and beds.
`
`6,
`
`Upon information and belief, Philip Krim is a natural person who. is a citizen and
`
`domiciliary ofNew York. Philip Krim is the Chief Executive Officer of Casper.
`
`7.
`
`Upon information and belief, Red Antler is a New York limited liability company
`
`with a principal place of business in King’s County, New York. Red Antler is engaged in the
`business of, among other things, marketing for startups. Upon information and belief, Red
`
`.Antler’s clients inciude Casper.
`
`8.
`
`Upon information and belief,
`
`ICS is a Cayman Islands corporation with a
`
`principai place of business in Grand Cayman, Cayman Islands.
`
`ICS is engaged in the business
`
`of, among other things, registering domain names. Upon information and belief, ICS registered
`the website www.natureslee'p.com (the “Cybersqnatted Doma_in'Name”) for Casper.
`
`JURISDICTIONIAND VENUE I
`
`9.
`
`Jurisdiction in this Court is proper pursuant to 28 U.S.C. §§ 1331, 133.3, and 1367
`
`because the claims for violations of the United States Trademark Act, Title 15 "of the United
`
`i066i3463.2
`
`

`
`Case O:15—cv-62571-WPD Document 26 Entered on FLSD Docket 04/04/2016 Page 3 of 22
`
`States Code, arise under federal law. Further, this Court has supplemental jurisdiction under 28
`I_J.S.C. § 1367 because the state law claims are so related to the federal claims that they form part
`
`of the same case or controversy.
`
`10.
`
`Upon information and belief, Casper and Krim performed the acts complained of
`
`in this complaint willfully with knowledge that both GhostBed and Nature’s Sleep maintained
`
`their principal place of business in Broward County, Florida, and have caused substantial harm to
`
`Gh0stBed and Nature’s Sleep within this district.
`
`1}.
`
`Upon information and belief, Casper and Krim direct advertising towards and sell
`
`infringing products to customers in Florida and have accepted payments from customers in
`
`Florida.
`
`12.
`
`Casper is subject to the personal jurisdiction of this Court pursuant to Florida
`
`Statutes §48.l93. Casper has committed various tortious acts within this State. Casper has
`
`caused injury to persons within this State arising out of an act or omission by Casper outside of
`this State while Casper engaged in solicitation of service activities within this State. Casper has
`
`caused injury to persons within this State arising out of an act or omission by Casper outside of
`this State white products, materials, or things. processed, serviced, or ‘manufactured by Casper
`were used or consumed within this State in the ordinary course ofcommerce, trade, or use.
`
`13.
`
`Krim is subject to the personal jurisdiction of this Court pursuant to Florida
`
`Statutes §48.l93. Krim has committed or instructed the commission of various tortious acts-
`within this -State. Krim has caused or instructed acts that caused injury to persons within this
`State arisinglout of an actor omission by "Krim outside of this State white Krim engaged in
`solicitation of servicenactivities within this State. Krim has caused injury topersons within this
`
`State ‘arising-out of an act or omission by Krim outside of this State while products, materials, or
`
`1066.! 34.63.:
`
`l
`
`
`
`
`
`
`
`

`
`Case 0:15—cv—62571-WPD Document 26 Entered on FLSD Docket 04/042016 Page 4 of 22
`
`things processed, serviced, or manufactured by Krim were used or consumed within this State in
`the ordinary course of commerce, trade, or use.
`
`14.
`
`Upon information and belief, Krim both directs and personaliy participates in the
`
`acts complained of and does this directly and by instructing others who do such_ acts at his
`
`behest.
`
`15.
`
`Upon information and belief, Red Antler is subject to the personal jurisdiction of
`
`this court because it developed the BETTER SLEEP FOR BRIGHTER DAYS mark for Krim
`
`and Casper and, knowing of Nature’s Sleep’s rights to that mark, it induced Krim and Casper to
`
`use that mark in this district and elsewhere. Further, Red Antier is itself advertising-for Casper
`using the mark where such advertising is directed nationally and intemationaily, including in this
`
`district.
`
`16.
`
`Therefore, Red .Antler is subject to the personal jurisdiction ofthis Court pursuant
`
`to Florida Statutes §-48.193. Red Antler has committed or contributed to the commission of
`
`various tortious acts within this State. Red Antler has caused injury to persons within this State
`
`arising out of an act or omission by Red Antler outside of this State while Red Antler engaged in
`
`_ solicitation of service activities within this State. Red Antler has caused injury to persons within
`
`this State arising out of an act or omission by Red Antler outside of this State while products, I
`
`materials, or things processed, serviced, or manufactured by Red Antler were used or consumed
`
`within this State in the ordinary course of commerce, trade, or use.
`If.
`' Upon information and belief, ICS is subject to the personal jurisdi'ction ofthis
`Court b'e_c'ause it registered the Cybersquatted Domain Name in anattempt to deceptively redirect
`
`business from Nature’s Sleep to Casper.
`
`l066l34|53.2
`
`

`
`
`
`mw,_._-
`
`Case 0:15~cv-62571-WPD Document 26 Entered on FLSD Docket O4l04l2016 Page 5 of 22
`
`18.
`
`Therefore, ICS is subject to the personal jurisdiction of this Court pursuant to
`
`Florida Statutes § 48.193.
`
`ICS has committed various tortious acts within this State.
`
`ICS has
`
`caused injury to persons within this State arising out of an act or omission by ICS. outside of this
`State while ICS engaged in solicitation of service activities within this State.
`ICS has caused
`
`injury to persons within this State arising out of an act or omission by ICS outside of this State
`while products, materials, or things processed, serviced, or manufactured by ICS were used or
`
`consumed within this State in the ordinary course of commerce, trade, or use.
`
`I9.
`
`Venue is proper in this Court pursuant to ZS U.S.C. §§ l39l(a) and (13) because a
`
`substantial -part of the events or omissions giving rise to the claims occurred in this district and
`
`the impact of Defendants’ misconduct occurred in this district.
`
`FACTQAL BACKGROUND
`
`20.
`
`Nature’s Sleep was founded in 2001 and is family owned and operated with its
`
`headquarters in Plantation, Florida. Nature’s Sleep sells mattresses, beds, pillows, toppers, and
`foundations and has received many favorable reviews from customers and from independent
`
`reviewers in the mattress industry.
`
`21.
`
`GhostBed was founded in 2015 pursuant to a plan developed in 2011 and is also
`
`owned and operated by the same family with its headquarters in Plantation, Florida. GhostBed
`
`also sells mattresses, beds, pillows, toppers, and foundations and has received many favorable .
`
`reviews from customers and from independent reviewers in the mattress industry.
`
`22.
`
`GhostBed .and 'N_ature’s Sleep have foundla great deal ofsuccess inthe mattress
`
`business and have gone to substantial -lengths to protect their intellectual property.
`. 23.
`Nature’s Sleep was_one of the first in the mattress business—-—we1'l before the acts
`
`_ complained of in this c_omplain't—-to deliver a “bed in a box” concept direct to -‘consumers and
`
`lI_}66l3463.2
`
`

`
`3
`
`Case 0:15-ev-62571-WPD Document 26 Entered on FLSD Docket 0410412016 Page 6 of 22
`
`one of the first to deliver a foundation or boxspring in a box direct to consumers. Both
`
`(3hostBed’s and Nature’s Sleep’s products come vacuum-sealed in a box "and inflate when the
`
`packaging is opened.
`
`24.
`
`Nature’s Sleep is the owner of the trademarks NATURE"S SLEEP, NATURE’S
`
`SLEEP Logo, GHOSTBED, and BETTER SLEEP FOR BRIGHTER DAYS, all of which are in
`
`use and have been in continuous use since well prior to the acts complained of in this complaint
`
`(the “Marks”).
`
`25.
`
`These Marks are inherently distinctive and have been extensively used by
`
`GhostBed and Nature’s Sleep in relation to sleep products and mattresses throughout the United
`
`States and have achieved significant fame and secondary meaning.
`
`26.
`
`Nature’s Sleep is the owner of the following registrations for marks that include
`
`NATURE’S SLEEP, Registration Numbers:
`
`3,731,815
`
`3,so2,s4s
`
`3,378,743
`
`4,240,034
`
`I
`
`I
`
`4,795,293
`
`4,912,360
`
`' 4,912,361
`
`(the “Nature’s Sleep Registered Marks”). Such marks are in use and have been in continuous
`
`use since well prior to theacts of Casper complained of herein.
`
`27.
`
`Nature’s Sleep is the owner of the following appiications for marks that include
`
`I GHOSTBED, Application _Num'ber"s:
`
`86/842,937
`
`86/842,977
`
`(the “GhostBed Applications”). GhostBed ‘is the licensee of the GHOSTBED marks.
`
`'
`
`I 0661 3463 .2:
`
`

`
`Case 0:15-cv—62571~WPD Document 26 Entered on FLSD Docket 04/04/2016 Page 7 of 22
`
`28.
`
`Nature’s Sleep is also the owner of U.S. trademark application 86/842,644 and
`
`86/842,536 for BETTER SLEEP FOR BRIGHTER DAYS which is in use and has been in
`
`continuous use since well prior to the acts of Casper complained of herein.
`
`29.
`
`Casper is also in the business of selling mattresses and beds and has its
`
`headquarters in New York.
`
`30.
`
`Upon information and belief, Krim is one of the founders of Casper and is the
`
`Chief Executive Officer of Casper and, as shown beiow, Krim has had many businesses in the
`
`mattress industry and is a serial
`
`infringer of other companies’
`
`intellectual property rights,
`
`including infringements through acts of cybersquatting.
`31.
`This is not Krim’s first foray into the mattress business. Upon information and
`
`belief, Krim has also operated a number of other mattress businesses including Sleep Products
`D2C, Inc., Sleep Better Store, LLC, dreamnumher.com, and Angel Beds LLC (the “Prior
`
`Businesses”).
`
`32.
`
`Upon information and belief, Krim’-s Prior Businesses were subject to litigation
`
`surrounding accusationsof patent and trademark infringement, including using another mattress
`
`manuf'acturer’s trademark in domain names, namely, cybersquatting. Upon information and
`belief, Krim was forced to rebrand the Prior Businesses as a resuit ofhis previous litigation. As
`a result, Kr'i'rn’s actions are purposeful, with knowledge and intent and are not the subject of
`
`mistake.
`
`Upon information and belief, in his latestninfringement, Krim created Casper to
`33.
`compete with Nature’s Sleep in the “bed in a box” category. Uponinforrnation and belief, Krirn
`and Casper intentionally set outto trade on the goodwill of and misappropriate GhostBed’s and _'
`
`Nature’s Sle‘ep’s valuable trademarks and to compete unfairly as described herein.
`
`l 06613.-463.2
`
`

`
`Case 0:15-cv-62571-WPD Document 26 Enteredon FLSD Docket 0410412016 Page 8 of 22
`
`' THE ACCUSED NIISCQNDQQT
`
`34.
`
`ICS registered the “Cybersquatted Domain Name” shortly after Casper was
`
`launched. When consumers were looking for plaintiff Nature’s Sleep and chose the
`
`www.naturesleep.com website expecting to find Nature’s Steep, they were redirected to Casper_’s
`
`website, www.casper.com.
`
`I Upon information and belief, Casper and Krim worked in concert with ICS to
`35.
`register the Cybersquatted Domain Name and to direct traffic fi'om that dornainltou the‘ Casper
`website.
`I
`
`36.
`
`In addition, up_on information and belief, Casper and Krim advertised with Google
`
`and other Search engines with the intent to misdirect users looking for GhostBed and Nature’s
`
`Sleep products. This inciuded purchasing keyword search terms—Google’s “AdWords”—and
`
`using the advertising associated with the results of searches using the Adwords in a way that
`customers searching for GhostBed and Nature’s Sleep would be misled and directed to a website
`
`for Casper’s products instead of GhostBed.
`
`37. _
`
`For example, Casper has purchased search terms using Natur‘e’s Sle'ep’s
`
`trademark GHOSTBED and posted an ad to be seen in the results of such a search which has as a
`headline “SURELY YOU MEANT CASPER?" ~ THE ORIGINAL CASPER MATTRESS.l’
`
`Upon information and belief, this would "deceive consumers into believing that because of the
`
`famous CASPER THE FRIENDLY GHOST, consumers did not properly remember the mattress
`
`name they were looking for.‘ Thus, Casper’s ad would likely confuse consumers into believing
`
`I
`
`that Casper was the proper name of the Ghosted product that they were looking for.
`
`33.
`
`In addition, upon information and belief, -Casper and Krim have used Na'tu're’s
`
`Sleep’s slogan_ BETTER SLEEP FOR BRIGHTER DAYS on Casper’s website and on point—of-g
`
`I066] 3463.2
`
`

`
`is
`
`
`
`1
`
`Case 0:15-cv-62571~WF’D Document 26 Entered on FLSD Docket 04/04/2016 Page 9 of 22
`
`sale materials for their competing mattresses, knowing of Nature’s Sleep prior rights to that
`
`slogan mark.
`
`39.
`
`Upon information and belief, Red Antler was aware that
`
`the slogan "mark
`
`BETTER SLEEP FOR BRIGHTER DAYS was in use and protected under common law and
`
`nevertheless induced Casper and Krirn to infringe and assisted in the infringement through the
`
`use of that slogan mark.
`
`In addition, Red Antler posts advertising for Casper using this slogan
`
`mark on Red Antler’s website.
`
`40.
`
`GhostBed, Nature’s Sleep, and Casper sell directly competing products and to the
`
`_ same and similar customers through the same channels of trade utilizing the same and similar
`advertising vehicles.
`C
`
`.
`
`41.
`
`This conduct individually and the combination of this conduct and the use of the
`
`Marks creates a likelihood of confusion for customers as ‘to an affiliation between Casper and
`
`GhostBed and Nature's Sleep.
`
`It also creates a likelihood of confusion as to the source of
`
`Casper’s products.
`
`42.
`
`In addition, upon information and belief, Casper and Krim have paid for or
`
`coerced revie'wers—-—who ‘appear to the public as independent reviewers——to review Casper’s
`
`products more favorably than those reviewershave in fact independently reviewed Casper’s
`
`products.
`
`"435
`Upon information and belief, Casper and Krim have posted comments or paid for
`or causedcomrnents to beposted on thelntemet, including in social media, which appearto the
`public to be independently posted comments that either denigrate G_hostBed and Nature’s Sleep
`
`or pro'mo_te Casper. In "addition, rnanylofthe those comments are false and rn'isieadin"g."
`
`1066134632
`
`

`
`[
`E
`
`I
`
`
`1
`
`i
`
`Case 0:15-cv-62571-WPD Document 26. Entered on F-‘LSD Doeketo-410412016 Page 10 of 22
`
`44.
`
`For example, Casper posted an advertisement that appeared when “Gi1_ostBed”
`'
`
`was searched using Googie stating “WHY BUY A COPYCAT? | CASPERCOM.” This falsely
`
`represents GhostBed as a Casper "‘copycat”.
`
`Upon information and beiiefi Casper and Krim either directly or indirectly have
`45.
`made false, misleading, and disparaging comments in Internet posts about GhostBed and
`Nature’s Sleep.
`
`46.
`
`In addition, upon -information and belief, Casper has misrepresented the country
`
`of origin of some of the fabric content of its products.
`
`COUNT I
`
`FEDERAL TRADEMARK INFRINGEMENT
`
`47.
`
`The allegations set
`
`forth in the preceding paragraphs are incorporated by
`
`reference as though fully set forth herein."
`
`48.
`
`Nature’s Sleep is the owner of federal registrations for its mark NA'I‘URE’S
`
`SLEEP as set out in detail above.
`
`49.
`
`Gho'stl'=3ed and Nature’s Sleep have no connection with Casper, Krim, or ICS and
`
`have not granted any license or consen_t~——express or implied—-to Defendants to use Natur'e’s
`
`Sleep"s distinctive and" famous Marks.
`
`50.
`
`Defendants Casper, Krim, and ICS_ have used the mark NATURE’S SLEEP in a
`
`way that is likety to cause confusion among consumers as to the source, origin, sponsorship, or
`
`affiliation of Casper’s ‘products.
`
`Casper’s use ofNAT_URE’S SLEEP in connection with the promotion and sale of
`‘Si.
`its competing mattress products has c_ause_d‘—a'nd will continue _to_ cause—«--a likelihood of I
`
`confitsion, mistake, and deception as" to the source or origin of Casper"s goods in that the-trade
`
`ID66l3463.2
`
`.10
`
`

`
`Case 0:15—cv.-62571-WPD Document 26 Entered on FLSD Docket 0410412016 Page 11 of 22
`
`and. the consuming public are likely to believe that Casper’s goods are sponsored, approved by,
`or licensed by GhestBed and Nature’s Sleep.
`I
`
`52.
`
`Upon information and belief, Ca,sper’s adoption and use of NATURE’S SLEEP
`
`was intentional and was for the purpose of misleading the trade and consuming public.
`
`In
`
`addition, Casper’s, Krim’s, and ICS’s conduct constitutes an attempt to tradeon the goodwill
`
`developed in the Registered Marks, all to the damage of GhostBed and Nature’s Sleep. These
`
`willful actions are in violation of Section 32 of the Lanham Act, l5 U.S.C. § H14.
`
`53.
`
`GhostBed and Nature’s Sleep have been damaged by the aforementioned acts in
`
`an amount to be determined at trial. Casper’s, Krim’s, and ICS’s continued unlicensed adoption
`
`and use ofNATURE’S SLEEP was done intentionally, willfully, maliciously, in bad faith, and in
`
`I
`conscious disregard for GhostBed"s and Nature’s Sle_ep’s rights.
`54.
`Casper, Krim, and ICS,
`in committing the foregoing acts in commerce, have
`damaged, and will continue to damage, GhostBed and Nature’s Sleep and their reputation and
`
`goodwill and Casper, Krirn, and ICS have been and will conti_nue to be unjustly enriched at the
`expense of GhostBed' and Nature’s Sleep who ‘have no adequate remedy at law to completely
`redress such acts, and will be irreparably damaged unless they are enjoined from committing and
`continuing to commit such acts.
`I
`I
`I
`I
`
`CONTRIBUTORY FEDERAL TRADEMARK INFRINGEMENT
`
`COUNT II
`
`_
`
`55.
`
`The allegations set
`
`forth in the preceding paragraphs _are
`
`incorporated by
`
`reference as though fu_lly- setuforth herein.
`
`56.
`
`ICS registered the Cybersquatted Domain Name shortly -after Casper was
`
`launched.
`
`"
`
`10661-3463.2
`
`'11-
`
`

`
`Case 0:15-cv-62571-WPD Document 26 Entered on FLSD Docket 0410-442016 Page 12 of 22
`
`57.
`
`/its set out in above‘, ICS directly infringed GhostBed’s and Nature’s Sleep’s
`
`rights in the NATURE’ S SLEEP marks.
`
`58.
`
`Plaintiffs anticipate that discovery will reveal that Casper and Krim were aware
`
`that the NATURE’S SLEEP marks were in use and protected under federal law and nevertheless
`
`induced ICS to infringe by using that mark.
`
`59.
`
`Plaintiffs anticipate that discovery will reveal ‘that Casper and Krim induced ICS
`
`to assist Casper and Krim in their infiingement of the NATURE’S SLEEP marks.
`
`60.
`
`GhostBed and Nature’s Sleep have been damaged by the aforementioned acts in
`
`an amount to be determined at trial.
`
`_
`
`61.
`
`Casper, Krim, and ICS,
`
`in committing the foregoing acts in commerce, have
`
`damaged, and will continue to damage, GhostBed and Nature’s Sleep and their reputation and
`
`goodwill, and Casper, Krim, and ICS have been and wiil continue to be unjustly enriched at the
`
`expense of GhostBed and Nature’s Sleep who have no adequate remedy at law to completely
`
`redress such acts, and will be irreparably damaged uniess they are enjoined from committing and
`
`continuing to commit such acts.
`
`COUNT III
`
`FEDERAL UNFAIR COMPETITION
`
`62.
`
`The allegations set -forth in the preceding paragraphs are incorporated by
`
`-reference as though fully set forth herein.
`
`63.
`
`Defendants’ conduct, as described above, in using the marks NATURE’S SLEEP,
`
`GHOSTBED and BETTER SLEEP FOR BRIGHTER DAYS constitutes use of false
`
`designations of origin andlfalse or misleading descriptions or representations of fact on or in
`
`connection with Ca'sper’s goods. This is likely to cause confusion, mistake, or deception as to
`
`the affiliation, connection, or association of Casper with GhostBed and Nature"s Sleep, and/or as
`
`1066134632
`
`12
`
`

`
`Case 0:15-cv-62571—WPD Document 26 Entered on FLSD Docket 0410412016 Page 13 of 22
`
`to the origin, sponsorship, or approval of Casper’s goods, in violation of Section 43(a) of the
`
`Lanham Act, 15 U.S.C. § l l25(a).
`
`64.
`
`Defendants’ conduct constitutes an attempt
`
`to trade on the goodwill
`
`that
`
`GhostBed and Nature’s Sleep have developed in the Marks, all to the damage of GhostBed and
`
`Natu.re’s Sleep.
`
`65.
`
`Defendants’ use in commerce of designations which are identical and/or
`
`confusingly similar to the Marks, despite its having notice of Plaintiffs’ prior rights inland to the.
`
`Marks, constitutes intentional conduct by Defendants to make false designations of origin and
`false descriptions about 'Casper’s goods and commercial activities.
`I
`
`66.
`
`In addition, Defendants’ conduct, as described above, including their conduct in
`
`posting false, misleading and confusing posts on social media and encouraging others to make
`
`false, misleading and confusing statements constitutes false advertising in violation of Section
`
`‘43(a) of the Lanham Act, 15 U.S.C. § ll25(a).
`
`67.
`
`Defendants, in committing the foregoing acts, have damaged—~and will continue
`
`to damage——GhostBed and Nature’s Sleep and their reputation and goodwill. Defendants have
`
`been and wili continue to be unjustly enriched at the expense of GhostBed and Nature’s Sleep
`
`who have no adequate remedy at lawnto completely redress such acts, and will be irreparabiy
`
`damaged unless Defendants are enjoined from committing and continuing to commit such acts.
`
`COUNT IV
`
`C.oNTR1B_U_‘T”oRv .FEDERA'L UNFAIR COMPETITION
`
`68.
`
`The allegations set
`
`forth in the preceding paragraphs are incorporated by
`
`reference as though fillly set forth herein. I
`
`.
`1066134632
`
`I3
`
`

`
`Case 0:15-cv-62571—WF"D Docurnent 26 Entered on FLSD Docket 04/04/2016 Page 14 of 22
`
`69.
`
`As set out above, Casper and Krim directly engaged in false designations of origin
`
`and false or misleading descriptions or representat-ions of fact on or in connection with Casper’S
`
`' goods.
`
`70.
`
`Red Antler utilized the BETTER SLEEP FOR BRIGHTERDAYS mark in its
`
`own advertisements, as well as assisted Casper and Krim in utilizing the same.
`71.
`Upon information and belief, Red Antler was aware that
`
`the slogan mark
`
`BETTER SLEEP FOR BRIGHTER DAYS was in use and protected under common law and
`
`nevertheless induced Casper and Krim to infringe by using that slogan mark.
`
`72.
`Upon information and belief, Red Antler intended to assist and assisted Casper
`and Krim in Casper’s and l<irim’s infringement ofthe BETTER SLEEP FOR BRIGHTER DAYS
`
`slogan mark.
`73.
`
`ICS utilized the NATURE’S SLEEP marks in its own domain name, as well as
`
`assisted Casper and Krim in utilizing the same.
`
`74.
`
`Plaintiffs anticipate that discovery will reveal
`
`that ICS was aware that
`
`the
`
`NATURE’S SLEEP marks were in use and protected under federal law and hevertheless induced
`
`Casper and Krim to .infi'i'nge by using that slogan mark.
`I 75.
`Plaintiffs anticipate that discovery will reveal that ICS intended to assist and
`assisted Casper and Kriml i'n_.Casper"s and Krim’s deception utilizing the NATUR-E’S SLEEP
`marks.
`H.
`I
`I
`
`76.
`
`Red Antler ar1d.iCS, in” committing the foregoinglacts, have damaged—.—ancl: will
`
`continue to _damage——GhostBed and Natu're’s Sleep and their reputation and goodwill. Red
`
`Antler and ICS have been and will continue to be unjustly enriched at the expense of Gh'ostBed
`
`and Nature’s_ Sleep who have no adequate remedy at law to completely redress such acts, and
`
`1066134632
`
`

`
`Case 0:15-cv-625?1-WPD Docurnent.26 Entered on FLSD Docket 04/04/2016 Page 15 of 22
`
`will be irreparably damaged unless Red Antler and ICS are enjoined from committing. and
`
`continuing to commit such acts.
`
`COUNT V
`
`CYBERSQUATTING
`
`77.
`
`The allegations set
`
`forth in the preceding paragraphs are incorporated by
`
`reference as though fully set forth herein.
`
`78.
`
`Defendants Casper, Krirn, and ICS established and used the Cybersquatted
`
`Domain Name with the bad-faith intent to profit from Nature’-s Sleep-’s Marks, which are
`
`protected as distinctive marks under Section 3002(a) of the Anticybersquatting Act, 15 U.S.C.
`
`§ 1125(d)(l).
`
`79.
`
`Casper, Krim, and ICS registered or had registered in their behalf and used the
`
`Cybersquattecl Domain Name without the prior knowledge, permission, or consent of Nature’s
`
`Sieep.
`
`80.
`
`Casper, Krim, and ICS used the Cybersquatted Domain Name to sell. goods in a
`
`way that is likely to cause confusion with Nature’s Sleep’s goods sold under the Marks.
`
`81.
`
`The fact that Cybersquatted Domain Name was registered under a false or proxy
`
`registrant name and Defendant Krim’s prior acts of Cybesquatting are all evidence of a bad faith
`
`intent under 15 U.S.C. §'1125 (d)(l)(B)(i).
`
`COUNT VI
`
`
`
`ORIDA COMMON LAW TRADEMARK INFRINGEMENT
`
`
`82.
`
`The allegationsof the preceding paragraphs are in‘co'rp'ora'ted by reference as.
`
`though fully 'se't.fi1rther'h'e're'in.
`
`83.
`
`Defendants’ actions constitute common law‘ trademark.infringen1e'nt-.
`
`.
`I_o6<sI3463.2
`
`I 5
`
`e
`
`

`
`Case O:15~cv—62571-WPD Document 26 Entered on FLSD Docket 0410412016 Page 16 of 22
`
`84.
`
`Defendants, in committing the foregoing acts, have damaged—and will continue
`
`to dan'1age——~GhostBed and Nature’s Sleep and their reputation and goodwill. Defendants have
`been and will continue to be unjustly enriched at the expense of GhostBed and Nature’s Sleep
`
`who have no adequate remedy at law to completely redress such acts, and will be irreparably
`damaged unless Defendants are enjoined fi‘0m committing and continuing to commit such acts.
`
`FLORIDACOMMON LAW CONTRIBUTORY TRADEMA§§ INFRINGEMENT
`
`_ COUNT VII
`
`85.
`
`The allegations set
`
`forth in the preceding paragraphs are incorporated by
`
`I
`reference as though fully set forth herein.
`86.
`Casper’s and Krirn’s actions constitute common law trademark infringement as
`
`‘set forth above.
`
`I
`
`87.
`
`Upon information and belief, Red Antler was aware that the BETTER SLEEP
`
`FOR BRIGHTER DAYS slogan mark was in use and protected under federal
`
`law and
`
`nevertheless induced Casper and Krim to infringe by using that mark.
`
`88.
`
`Upon information and belief, Red Antler intended to assist Casper and Krim in
`
`Casper and Krirn’s infringement of the BETTER SLEEP FOR BRIGHTER DAYS slogan mark.
`
`89.
`
`Plaintiffs anticipate that discovery will reveal
`
`that ICS was aware that
`
`the _
`
`NATURE’S SLEEP marks were in use and protected under federal law and nevertheless induced
`
`Casper and Krim to infiinge by using that mark.
`
`90-.
`
`Plaintiffs anticipate that discovery will "reveal that ICS intended ‘to assist Casper
`
`and Krim in Casper’s and Krim’_s infringement of theNATU_RE’§ SLEEP marks.
`
`-91.
`
`I Red. Antler and ICS, in committing the foregoing acts, have damage'd—an_cl will
`
`continue to damage——GhostBed and Nature's Sleep and their reputation and goodwill. Red
`
`Antler and ICS'have been and will continue to be unjustly enriched at the expense of GhostB'ed
`
`i'o«56134e3.2
`
`16
`
`

`
`Case 0:15—cv-62571-WPD Document 26 Entered on FLSD Docket 04l€_)4I2016
`
`Page 17 of 22
`
`and Nature’s Sieep who have no adequate remedy.at ‘law to completely redress such acts, and
`
`will be irreparably damaged unless Red Antler and ICS are enjoined from committing and
`
`continuing to commit such acts.
`
`COUNT VIII
`
`Fpoklm COMMON LAW UNFAIR COMPETITION
`
`92.
`
`The allegations set
`
`forth in the preceding paragraphs are incorporated by
`
`reference as though fully set forth herein.
`
`93.
`
`Defendants’ conduct as set out above tend to falsely represent Casper’s goods as
`
`being affiliated with, connected to, associated with, or sponsored or approved by GhostBed and
`
`Nature’s Sleep.
`
`In addition, Defendants’ acts are unfair competition because they are false
`
`advertising as discussed above.
`94.
`Defendants’ cond'uct'con'stitutes unfair competition with GhostBed and Nature’s
`
`Sleep, and result in Defendants’ unjust enrichment under the common law of Florida.
`
`Defendants, in committing the foregoing acts, have clamaged——and will continue
`95.
`to damage—GhostBed and Nature’_s Sleep and their reputation andgoodwill. Defendants have
`
`been and will continue to "be unjustly enriched at the expense of GhostBed and Nature’s Sleep
`who have no adequate remedy at law to completely redress such acts, and will be irreparably
`
`damaged unless Defendants areenjoined from committing and continuingto commit such acts.
`
`I COUNT IX
`_
`- -FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICESACT
`
`96.
`
`The _alleg.ations
`
`set
`
`forth in.’ "the ‘preceding paragraphs are incorporated by
`
`reference as though fully set. forth herein.
`
`.
`1066134612
`
`' 17
`'
`
`-
`
`.
`
`

`
`Case O:15»cv—625?1-WPD Document 26 Entered on FLSD Docket 04l04f2016 Page 18 of 22
`
`97.
`
`Defendants’ conduct in utilizing the Marks constitutes unfair competition under
`
`the Florida Deceptive and Unfair Trade Fractices Act (“FDUTPA”) codified