Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1149847
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`Filing date:
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`07/29/2021
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91269997
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`Nuheara IP Pty Ltd.
`
`MARTHA JAHN SNYDER
`QUARLES & BRADY LLP
`33 EAST MAIN STREET, SUITE 900
`MADISON, WI 53703
`UNITED STATES
`Primary Email: martha.snyder@quarles.com
`Secondary Email(s): anita.boor@quarles.com, meme.hilley@quarles.com,
`hailey.carvalho@quarles.com, docketwi@quarles.com
`608-251-5000
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Motion to Suspend for Civil Action
`
`Martha Jahn Snyder
`
`martha.snyder@quarles.com, anita.boor@quarles.com,
`meme.hilley@quarles.com, hailey.carvalho@quarles.com
`
`Signature
`
`Date
`
`/Martha Jahn Snyder/
`
`07/29/2021
`
`Attachments
`
`Unopposed Motion to Suspend Opposition.pdf(2437751 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`Nuheara IP Pty Ltd.,
`
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`Opposer,
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`
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`v.
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`Anker Innovations Limited,
`
`
`Applicant.
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`
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`
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`Opposition No. 91269997
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`U.S. App. Serial No. 88/424,912
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`Mark: HEARID
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`
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`UNOPPOSED MOTION TO SUSPEND OPPOSITION
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`Opposer Nuheara IP Pty Ltd. (“Nuheara), hereby moves the Trademark Trial and Appeal
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`Board (“TTAB” or “Board”) to suspend this Opposition proceeding pursuant to 37 C.F.R.
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`§ 2.117(a) in light of a civil action now pending between the parties. Counsel for Nuheara has
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`consulted with counsel for Applicant Anker Innovations Limited (“Anker”) regarding this motion.
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`Anker does not oppose this request to suspend.
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`Nuheara offers the following in support of its request:
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`On July 29, 2020, Nuheara, along with its affiliate, Nuheara Limited, filed a Complaint
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`against Anker, along with its affiliates Fantasia Trading LLC and Power Mobile Life, LLC, in the
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`U.S. District Court for the Western District of Washington. The ensuing case is entitled and
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`numbered Nuheara IP Pty Ltd. and Nuheara Limited v. Anker Innovations Limited, Fantasia
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`Trading LLC d/b/a AnkerDirect and Power Mobile Life, LLC, Civil Action No. 2:20-cv-01161.
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`Anker’s applied-for trademark, HEARID, which is the subject of this Opposition between the
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`parties, is specifically implicated by the Complaint. Specifically, the Complaint alleges likelihood
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`of confusion between Nuheara’s EAR ID mark and Anker’s HEARID mark, as applied to the
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`QB\68313828.1
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`parties’ goods and services, and asserts trademark infringement and various claims related thereto.
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`A copy of the Complaint is attached as Exhibit A. Anker responded to the Complaint denying the
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`allegations and asserting counterclaims seeking cancellation of Nuheara’s trademark registration
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`for EAR ID, a finding that the asserted mark is merely descriptive, and declaratory judgment of
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`non-infringement. Nuheara responded to the counterclaims, denying the underlying allegations.
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`Pursuant to 37 C.F.R. § 2.117(a), the TTAB may suspend proceedings before it when the
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`parties are involved in a civil action that may have a bearing on the proceeding. The TTAB thus
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`generally suspends proceedings involving a particular trademark when a civil action for trademark
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`infringement is pending between the parties and involves the same trademark. See Trademark Trial
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`and Appeal Board Rule § 510.02(a); The Other Tel. Co. v. Nat’l Tel. Co., 181 U.S.P.Q. (BNA)
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`125, 126 (T.T.A.B., Feb. 11, 1974) (granting opposer’s motion to suspend proceedings when civil
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`action is pending).
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`Disposition of the civil action, which involves the same trademark HEARID, therefore may
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`bear on the outcome of this Opposition. Accordingly, Nuheara respectfully requests that this
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`Opposition be suspended pending the disposition of Civil Action No. 20-cv-01161 pending in the
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`Western District of Washington. Anker does not oppose this request.
`
`Respectfully submitted this 29th day of July, 2021.
`
`
`
`/Martha Jahn Snyder/
`Martha Jahn Snyder
`martha.snyder@quarles.com
`Anita Marie Boor
`anita.boor@quarles.com
`QUARLES & BRADY LLP
`33 East Main Street, Suite 900
`Madison, WI 53703
`Tel.: 608-251-5000
`Fax: 608-251-9166
`
`Counsel for Opposer Nuheara IP Pty Ltd.
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`QB\68313828.1
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document has been served
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`by email on July 29, 2021, on the following counsel for Applicant:
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`Dennis S. Prahl
`Ladas & Parry LLP
`1040 Avenue of the Americas
`New York, NY 10018
`nyustmp@ladas.com
`Dprahl@ladas.com
`Akusnierz@ladas.com
`
`Melanie D. Phillips
`Diana M. Rutowski
`Yufeng (Ethan) Ma
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`701 Fifth Avenue, Suite 5600
`Seattle, Washington 98104-7097
`mphillips@orrick.com
`drutowski@orrick.com
`yma@orrick.com
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` /Martha Jahn Snyder/
`Martha Jahn Snyder
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`QB\68313828.1
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`3
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`EXHIBIT A
`EXHIBIT A
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`

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`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`NUHEARA IP PTY LTD and NUHEARA
`LIMITED,
`
`Plaintiffs,
`
`v.
`
`ANKER INNOVATIONS LIMITED,
`FANTASIA TRADING LLC D/B/A
`ANKERDIRECT, and POWER MOBILE
`LIFE, LLC,
`
`Defendants.
`
`Case No.
`
`COMPLAINT
`
`JURY TRIAL DEMANDED
`
`Plaintiffs, Nuheara IP Pty Ltd (“Nuheara IP”) and Nuheara Limited (individually,
`
`“Nuheara Ltd.”; collectively, “Nuheara”), by and through their attorneys, bring this Complaint
`
`against Defendants, Anker Innovations Limited (“Anker Innovations”), Fantasia Trading LLC
`
`d/b/a AnkerDirect (“AnkerDirect”), and Power Mobile Life, LLC (individually “Power Mobile
`
`Life”; collectively, “Anker” or “Defendants”), and allege as follows:
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`NATURE OF ACTION
`
`1.
`
`This is an action for damages and injunctive relief against Defendants for trademark
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`infringement, false designation of origin, false advertising, and unfair competition under Sections
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`32(1) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a); the common law of the
`
`State of Washington; and the Washington Consumer Protection Act, RCW 19.86.101, et seq.
`
`QB\167330.00023\64161916.1
`COMPLAINT - 1
`
`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
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`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 2 of 15
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`2.
`
`This action arises out of Defendants’ use of the mark HEARID that infringes and
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`is likely to cause confusion, mistake, and to deceive as to the affiliation, connection, and
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`association with Nuheara IP’s EAR ID trademark registration.
`
`PARTIES
`
`3.
`
`Plaintiff Nuheara Ltd. is a proprietary limited company organized under the laws
`
`of Australia, and located at 190 Aberdeen Street, Northbridge, Western Australia, Australia 6003.
`
`Nuheara specializes in audio wearables and ear buds, featuring its hearing personalization
`
`technology offered under the EAR ID trademark.
`
`4.
`
`Plaintiff Nuheara IP is a proprietary limited company organized under the laws of
`
`Australia, and located at 190 Aberdeen Street, Northbridge, Western Australia, Australia 6003.
`
`5.
`
`Defendant Anker Innovations is a limited company organized under the laws of
`
`Hong Kong with its business address located at 610 Nathan Road, Mongkok, Rm. 1318-19,
`
`Hollywood Commercial Center, Kowloon, Hong Kong 00000. Mr. Meng (Steven) Yang is the
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`founder of Anker Innovations and is the company’s Director.
`
`6.
`
`Upon information and belief, Anker Innovations does business, and can receive
`
`service of process, at its United States headquarters located at Washington Federal Center, 400
`
`108th Ave. NE, Suite 400, Bellevue, Washington, United States 98004.
`
`7.
`
`Upon information and belief, AnkerDirect is a limited liability company organized
`
`under the laws of the State of Delaware with its principal place of business at 5350 Ontario Mills
`
`Pkwy, Suite 100, Ontario, California 91764. Mr. Yang is the Chief Executive Officer of
`
`AnkerDirect and its registered agent for service of process in Washington.
`
`8.
`
`AnkerDirect maintains a principal office mailing address at 400 108th Ave NE,
`
`Suite 400, Bellevue, Washington, United States 98004.
`
`9.
`
`Upon information and belief, AnkerDirect is the account holder for the AnkerDirect
`
`Amazon storefront which lists various consumer electronics for sale, including audio wearables
`
`and ear buds, featuring Anker Innovations’ hearing personalization technology offered under the
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`QB\167330.00023\64161916.1
`COMPLAINT - 2
`
`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 3 of 15
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`HEARID trademark.
`
`10.
`
`Upon information and belief, AnkerDirect owns and operates the website
`
`anker.com (the “Anker Website”). Upon information and belief, the Anker Website is hosted by
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`Amazon Web Services.
`
`11.
`
`Upon information and belief, AnkerDirect owns and operates the website
`
`soundcore.com (the “Soundcore Website”). Upon information and belief, the Soundcore Website
`
`is hosted by Amazon Web Services.
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`12.
`
`Upon information and belief, AnkerDirect fulfills orders completed on the Anker
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`Website and the Soundcore Website by shipping products from AnkerDirect’s warehouse
`
`throughout the United States, including into Washington and this judicial district.
`
`13.
`
`Upon information and belief, AnkerDirect is a wholly owned subsidiary of Anker
`
`Innovations.
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`14.
`
`Defendant Power Mobile Life is a limited liability company organized under the
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`laws of the State of Washington with its principal place of business at 400 108th Ave. NE, Suite
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`400, Bellevue, Washington, United States 98004-5541 and can be served at this address. Mr. Yang
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`is the founder, Chief Executive Officer, and registered agent of Power Mobile Life.
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`15.
`
`Upon information and belief, Power Mobile Life is the account holder for the
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`Soundcore mobile app which lists various consumer electronics for sale, including audio wearables
`
`and ear buds, featuring Anker’s hearing personalization technology offered under the HEARID
`
`trademark. (See Exhibit A).
`
`16.
`
`Upon information and belief, Power Mobile Life is a wholly owned subsidiary of
`
`Anker Innovations.
`
`17.
`
`Upon information and belief, AnkerDirect’s and Power Mobile Life’s activities
`
`were under the control and direction of its parent, Anker Innovations.
`
`18.
`
`Upon information and belief, AnkerDirect and Power Mobile Life market, import,
`
`distribute, and/or sell products and technologies in the United States.
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`QB\167330.00023\64161916.1
`COMPLAINT - 3
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`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 4 of 15
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`19.
`
`Upon information and belief, AnkerDirect and Power Mobile Life market, import,
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`distribute, and/or sell products and technologies from and on behalf of Anker Innovations.
`
`20.
`
`Upon information and belief, Anker Innovations exercises substantial control over
`
`its subsidiaries’ functions, employees, and decision-making processes. Anker Innovations
`
`directed, controlled and/or encouraged its subsidiaries to engage in infringing conduct addressed
`
`herein.
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`JURISDICTION AND VENUE
`
`21.
`
`This Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C.
`
`§§ 1331 and 1338(a) because it arises under the Lanham Act, 15 U.S.C. §§ 1051, et seq. This
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`Court has supplemental subject-matter jurisdiction over the Washington State claims under 28
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`U.S.C. § 1367(a).
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`22.
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`This Court has personal jurisdiction over Power Mobile Life because it is organized
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`under the laws of the State of Washington and its principal place of business is within this State
`
`and judicial district.
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`23.
`
`Alternatively, this Court has personal jurisdiction over Power Mobile Life because,
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`on information and belief, Power Mobile Life is providing, advertising, promoting, offering to sell,
`
`and/or selling products using the infringing mark from this District and/or to consumers within
`
`this District.
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`24.
`
`This Court has personal jurisdiction over AnkerDirect because, on information and
`
`belief, AnkerDirect is providing, advertising, promoting, offering to sell, and/or selling products
`
`using the infringing mark to consumers within this State and judicial district.
`
`25.
`
`This Court has personal jurisdiction over Anker Innovations because, as a foreign
`
`corporation, it is subject to personal jurisdiction in the State and judicial district in which its wholly
`
`owned and controlled subsidiary, Power Mobile Life, sits.
`
`26.
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`Alternatively, this Court has personal jurisdiction over Anker Innovations because,
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`on information and belief, Anker Innovations, directly or indirectly, is providing, advertising,
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`QB\167330.00023\64161916.1
`COMPLAINT - 4
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`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 5 of 15
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`promoting, offering to sell, and selling products using the infringing mark from this district and to
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`consumers within this judicial district.
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`27.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because a substantial
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`part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district and because
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`Defendants are subject to personal jurisdiction in this district with respect to the claims at issue.
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`STATEMENT OF FACTS
`
`NUHEARA’S BUSINESS AND TRADEMARK
`
`28.
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`Nuheara Ltd. was founded in 2016 and has established a strong reputation and
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`significant goodwill with consumers and with the trade as a manufacturer and supplier of high-
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`quality audio wearables, including wireless earbuds and headphones (“audio wearables”), which
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`feature intelligent hearing technology that augments a person’s hearing and facilitates cable free
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`connections with smart devices. The intelligent hearing technology works through a mobile
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`application in conjunction with Nuheara Ltd.’s audio wearables.
`
`29.
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`Nuheara Ltd.’s
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`intelligent hearing
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`technology
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`is a clinically validated
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`personalization tool used to evaluate a person’s hearing profile and automatically adjust sound
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`settings in Nuheara Ltd.’s audio wearables to better increase quality of sound. The personalization
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`system is based on the Australian National Acoustics Laboratories NAL-NL2 audiological
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`prescription fitting software to maximize speech intelligibility.
`
`30.
`
`Nuheara Ltd.’s intelligent hearing technology included in its audio wearables has
`
`been marketed and sold by Nuheara Ltd. under the EAR ID trademark.
`
`31.
`
`Nuheara Ltd.’s audio wearables featuring the intelligent hearing technology under
`
`the EAR ID trademark are sold to consumers who want a better quality sound experience.
`
`32.
`
`In its advertising, marketing, and other materials, Nuheara Ltd. commonly displays
`
`its EAR ID trademark as “Ear ID.”
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`33.
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`Nuheara Ltd. sells a variety of audio wearables featuring the EAR ID trademark
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`throughout the United States and in a large number of foreign countries, including but not limited
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`QB\167330.00023\64161916.1
`COMPLAINT - 5
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`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 6 of 15
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`to Australia, New Zealand, Canada, and Singapore.
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`34.
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`Since as early as January 2018, Nuheara Ltd.’s audio wearables with the EAR ID
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`trademark have been promoted, advertised, marketed, offered, and/or sold by Nuheara Ltd. to
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`consumers
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`in
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`the United States
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`through websites such as www.amazon.com, and
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`www.walgreens.com, and through brick and mortar stores that sell audio wearables.
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`35.
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`In addition to such websites and stores, Nuheara Ltd. has also promoted, advertised,
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`and marketed Nuheara Ltd.’s audio wearables with the EAR ID trademark extensively through its
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`own website (https://www.nuheara.com/how-it-helps/hearing/) social media, online advertising,
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`and other forms of advertisement.
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`36.
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`Nuheara Ltd. has invested substantial money and other resources in promoting its
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`audio wearables and the EAR ID trademarks.
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`37.
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`Nuheara IP is also the owner of valid and subsisting United States Trademark
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`Registration No. 5,659,253 (“the ‘253 Registration”) for the EAR ID trademark, for use in
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`connection with “apparatus for recording, transmission or reproduction of sound or images; audio
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`equipment and instruments, namely speakers; headphones; earphones other than hearing aids for
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`the deaf; computer software for controlling the operation of audio devices; computer application
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`software for controlling the operation of audio devices” in International Class 09 (the “EAR ID
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`Goods”). A copy of the ‘253 Registration, which was issued by the United States Patent and
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`Trademark Office (“USPTO”) on January 22, 2019, is attached as Exhibit B.
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`38.
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`Nuheara IP exclusively licenses the rights under the ‘253 Registration to Nuheara
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`Ltd.
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`39.
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`Nuheara IP’s ‘253 Registration constitutes prima facie evidence of the validity of
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`the EAR ID trademark, of Nuheara IP’s ownership of the mark, and of Nuheara Ltd.’s exclusive
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`right to use the mark in commerce in connection with the EAR ID Goods.
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`40.
`
`As a result of its widespread, continuous, and exclusive use of the EAR ID
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`trademark to identify the EAR ID Goods offered by Nuheara Ltd., Plaintiffs Nuheara IP and
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`QB\167330.00023\64161916.1
`COMPLAINT - 6
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`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 7 of 15
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`Nuheara Ltd. own valid and subsisting federal statutory and common law rights in the EAR ID
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`trademark.
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`41.
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`Nuheara’s EAR ID trademark is distinctive to both the consuming public and
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`Nuheara Ltd.’s trade.
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`DEFENDANTS’ UNLAWFUL CONDUCT
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`42.
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`Upon information and belief, Anker, directly and indirectly, is engaged in the
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`business of offering various smart devices for entertainment, travel, and smart homes, including
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`but not limited to audio wearables.
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`43.
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`Upon information and belief, Anker has begun selling intelligent hearing
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`technology to accompany its audio wearables under the HEARID trademark.
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`44.
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`Anker’s intelligent hearing technology offered in connection with the HEARID
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`trademark purportedly analyzes a person’s hearing profile to increase the quality of sound
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`perceived by users. Like Nuheara Ltd.’s Ear ID technology, the HearID technology works through
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`a mobile application in conjunction with Anker’s audio wearables.
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`45.
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`Anker’s audio wearables featuring the claimed intelligent hearing technology under
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`the HEARID trademark are sold to consumers looking for a better quality sound experience.
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`46.
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`Upon information and belief, Anker commonly displays its HEARID trademark as
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`“HearID” in its advertising, marketing, and other materials. (See Exhibit C).
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`47.
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`Anker’s audio wearables with the HEARID trademark have been promoted,
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`advertised, marketed, offered, and sold by Anker to consumers in the United States through
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`websites such as www.amazon.com and www.bestbuy.com, and through brick and mortar stores
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`that sell audio wearables.
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`48.
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`In addition to such websites and stores, Anker has also promoted, advertised, and
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`marketed Anker’s audio wearables with the HEARID trademark extensively through its own
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`websites
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`(https://www.anker.com/store,
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`https://www.soundcore.com/hearid,
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`and
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`https://www.soundcore.com/products/), social media, online advertising, mobile apps, and other
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`QB\167330.00023\64161916.1
`COMPLAINT - 7
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`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 8 of 15
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`forms of advertisement.
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`49.
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`Upon information and belief, Anker began promoting, advertising, marketing,
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`distributing, offering, and selling its audio wearables with the HEARID trademark in the U.S. after
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`Nuheara Ltd. began advertising, marketing, distributing, offering, and selling its audio wearables
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`with its EAR ID trademark.
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`50.
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`Nuheara’s rights in its EAR ID trademark are superior to any rights of Anker in its
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`HEARID trademark.
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`51.
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`Anker’s audio wearables with the HEARID trademark are promoted, advertised,
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`marketed, distributed, offered, and sold to the same U.S. consumers as Nuheara’s audio wearables
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`featuring the EAR ID mark.
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`52.
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`Anker’s HEARID trademark is confusingly similar to Nuheara’s EAR ID
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`trademark.
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`53.
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`Anker’s HEARID trademark is similar to Nuheara’s EAR ID trademark in
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`appearance, sound, meaning, and commercial impression.
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`54.
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`These similarities are especially prominent given the common way the respective
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`marks are displayed and used in commerce, as “HearID” and “Ear ID.”
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`55.
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`Anker’s goods and services offered under the HEARID trademark are identical to
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`the goods and services offered in connection with Nuheara’s EAR ID trademark.
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`56.
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`Anker’s goods and services offered under the HEARID trademark travel in the
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`same channels of trade as the goods and services offered in connection with Nuheara’s EAR ID
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`trademark.
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`57.
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`Anker’s goods and services offered under the HEARID trademark are sold to the
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`same type of consumers as the goods and services offered in connection with Nuheara’s EAR ID
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`trademark.
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`58.
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`Anker’s use of the HEARID trademark creates a likelihood of confusion in the
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`minds of consumers and the trade as to whether Nuheara is the source, origin, affiliated with, or
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`QB\167330.00023\64161916.1
`COMPLAINT - 8
`
`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 9 of 15
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`sponsors Anker’s products and technologies.
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`59.
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`Anker’s use of the HEARID trademark creates in the minds of consumers and the
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`trade a false impression and belief that the audio wearables with intelligent hearing technology
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`offered in association with Anker’s HEARID trademark originate with, are affiliated with, or are
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`sponsored by Nuheara.
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`60.
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`Anker’s use of the HEARID trademark infringes on Nuheara IP’s and Nuheara
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`Ltd.’s rights in its EAR ID trademark.
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`61.
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`Anker’s use of the HEARID trademark is an unlawful attempt to pass off the
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`intelligent hearing technology as coming from or being affiliated with Nuheara.
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`62.
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`Anker’s use of the HEARID trademark constitutes unfair competition with
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`Nuheara.
`
`FIRST CAUSE OF ACTION
`
`Federal Trademark Infringement
`(15 U.S.C. § 1114)
`
`63.
`
`Plaintiffs re-allege and incorporate the preceding allegations in paragraphs 1-62 as
`
`if set forth herein.
`
`64.
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`The use of HEARID by Anker constitutes infringement of the EAR ID trademark
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`in violation of Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1).
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`65.
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`Nuheara’s rights in the EAR ID trademark are superior to any rights of Defendants
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`to HEARID.
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`66.
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`Anker’s HEARID trademark is confusingly similar to Nuheara’s EAR ID
`
`trademark.
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`67.
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`Anker Innovations’ unauthorized use, directly or indirectly through AnkerDirect
`
`and/or Power Mobile Life, in commerce of HEARID as alleged herein is likely to deceive
`
`consumers as to the origin, source, sponsorship, or affiliation of Anker’s goods and services, and
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`likely to cause consumers to believe, contrary to fact, that Anker’s goods are sold, authorized,
`
`endorsed, or sponsored by Nuheara, or that Anker is in some way affiliated with or sponsored by
`
`QB\167330.00023\64161916.1
`COMPLAINT - 9
`
`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
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`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 10 of 15
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`Nuheara.
`
`68.
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`Anker Innovations’ conduct, directly or indirectly through AnkerDirect and/or
`
`Power Mobile Life, is causing immediate and irreparable harm and injury to Nuheara, and to its
`
`goodwill and reputation.
`
`69.
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`Nuheara is entitled to, among other relief, injunctive relief and an award of actual
`
`damages, Defendants’ profits, enhanced damages and profits, reasonable attorneys’ fees, and costs
`
`of the action under Sections 34 and 35 of the Lanham Act, 15 U.S.C. §§ 1116, 117, together with
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`prejudgment and post-judgment interest.
`
`SECOND CAUSE OF ACTION
`
`Unfair Competition and False Designation of Origin in Violation of Federal Law
`(15 U.S.C. § 1125(a))
`
`70.
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`Plaintiffs re-allege and incorporate the preceding allegations in paragraphs 1-69 as
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`if set forth herein.
`
`71.
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`Nuheara Ltd. owns and enjoys common law trademark rights in its EAR ID
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`trademark and also licenses U.S. Reg. 5,659,253, which is exclusively owned by Nuheara IP.
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`72.
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`Nuheara’s rights in the EAR ID trademark are superior to any rights of Anker to
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`HEARID.
`
`73.
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`Anker Innovations’ unauthorized use, directly or indirectly through AnkerDirect
`
`and/or Power Mobile Life, in commerce of HEARID as alleged herein is likely to deceive
`
`consumers as to the origin, source, sponsorship, or affiliation of Anker’s goods and services, and
`
`likely to cause consumers to believe, contrary to fact, that Anker’s goods are sold, authorized,
`
`endorsed, or sponsored by Nuheara, or that Anker is in some way affiliated with or sponsored by
`
`Nuheara.
`
`74.
`
`Anker Innovations’ unauthorized use, directly or indirectly through AnkerDirect
`
`and/or Power Mobile Life, in commerce of the HEARID trademark as alleged herein constitutes
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`use of a false designation of origin, passing off, misappropriation, palming off and/or a misleading
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`description or representation of fact that is likely to cause mistake, confusion, and/or deception as
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`QB\167330.00023\64161916.1
`COMPLAINT - 10
`
`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 11 of 15
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`to the origin, sponsorship, authorization, creation, or approval of Anker’s products as those from
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`Nuheara, in violation of 15 U.S.C. § 1125(a).
`
`75.
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`Anker Innovations’ unauthorized use, directly or indirectly through AnkerDirect
`
`and/or Power Mobile Life, in commerce of the HEARID trademark as alleged herein constitutes
`
`unfair completion in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
`
`76.
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`Anker Innovations’ conduct, directly or indirectly through AnkerDirect and/or
`
`Power Mobile Life, is causing immediate and irreparable harm and injury to Nuheara, and to its
`
`goodwill and reputation.
`
`77.
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`Nuheara is entitled to, among other relief, injunctive relief and an award of actual
`
`damages, Defendants’ profits, enhanced damages and profits, reasonable attorneys’ fees, and costs
`
`of the action under Sections 34 and 35 of the Lanham Act, 15 U.S.C. §§ 1116, 117, together with
`
`prejudgment and post-judgment interest.
`
`THIRD CAUSE OF ACTION
`
`Trademark Infringement and Unfair Competition Under Washington Common Law
`
`78.
`
`Plaintiffs’ re-allege and incorporate the preceding allegations in paragraphs 1-77 as
`
`if set forth herein.
`
`79.
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`Anker Innovations’ unauthorized use, directly or indirectly through AnkerDirect
`
`and/or Power Mobile Life, of the HEARID trademark as alleged herein is likely to cause confusion,
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`mistake, and deception among the consuming public to the affiliation, connection, or association
`
`of Anker with Nuheara.
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`80.
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`Nuheara’s right in the EAR ID trademark is superior to any rights of Anker to
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`HEARID.
`
`81.
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`Anker Innovations’ conduct, directly or indirectly through AnkerDirect and/or
`
`Power Mobile Life, as alleged herein is causing immediate and irreparable harm and injury to
`
`Nuheara, and to its goodwill and reputation, and will continue to both damage Nuheara and confuse
`
`the public.
`
`QB\167330.00023\64161916.1
`COMPLAINT - 11
`
`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
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`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 12 of 15
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`82.
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`Nuheara is entitled to, among other relief, injunctive relief and an award of actual
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`damages, Defendants’ profits, and costs of the action under the common law of Washington,
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`together with prejudgment and post-judgment interest.
`
`FOURTH CAUSE OF ACTION
`Violation of the Washington Consumer Protection Act, RCW 19.86.010 et seq.
`
`83.
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`Plaintiffs re-allege and incorporate the preceding allegations in paragraphs 1-82 as
`
`if set forth herein.
`
`84.
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`Anker Innovations’ unauthorized use, directly or indirectly through AnkerDirect
`
`and/or Power Mobile Life, of the HEARID trademark as alleged herein constitutes unfair and
`
`deceptive acts and practices.
`
`85.
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`86.
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`Anker’s unfair and deceptive acts and practices occurred in trade or commerce.
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`Anker’s unfair and deceptive acts and practices affected the public interest because,
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`among other reasons, they are likely to confuse and deceive consumers and induce them to make
`
`purchases they would not otherwise make.
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`87.
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`Anker’s unfair and deceptive acts and practices directly and proximately caused
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`injury to Nuheara’s business and its property rights, including among other things, its property
`
`interests in the EAR ID trademark.
`
`88.
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`Anker Innovations’ conduct, directly or indirectly through AnkerDirect and/or
`
`Power Mobile Life, constitutes an unfair method of competition and an unfair or deceptive act or
`
`practice in the conduct of trade or commerce in violation of RCW 19.86.20 that has injured
`
`Nuheara in its business or property.
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`89.
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`Nuheara is entitled to, among other things, an order temporarily and permanently
`
`enjoining Defendants from advertising, marketing, distributing, offering, and selling products for
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`audio wearables under the HEARID trademark, and for all of its damages in an amount to be
`
`proved at trial and together with costs and attorneys’ fees.
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`QB\167330.00023\64161916.1
`COMPLAINT - 12
`
`Davis Wright Tremaine LLP
`LAW O F FI C E S
`920 Fifth Avenue, Suite 3300
`Seattle, WA 98104-1610
`206.622.3150 main · 206.757.7700 fax
`
`

`

`Case 2:20-cv-01161 Document 1 Filed 07/29/20 Page 13 of 15
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiffs pray for relief against Defendants as follows:
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`1.
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`Entry of preliminary and permanent injunctions enjoining Defendants and its
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`officers, agents, servants, partners, affiliates, subsidiaries, employees, successors, and assigns, and
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`all persons acting in concert and participation with them, from:
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`a. using in any manner the trademark HEARID or any other trademark
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`confusingly similar to the EAR ID trademark;
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`b. selling, marketing, advertising, promoting, or authorizing any third party to
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`provide, sell, market, advertise, or promote any goods or services bearing the HEARID
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`trademark, or any mark that is a copy, confusingly similar variation, or colorable imitation of
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`Plaintiffs’ EAR ID trademark;
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`c. engaging in any activity that infringes on Plaintiffs’ rights in the EAR ID
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`trademark;
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`d. engaging in any activity constituting unfair competition with Nuheara Ltd.;
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`e. making or di