Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA408810
`ESTTA Tracking number:
`05/12/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92053278
`Defendant
`Fitness Anywhere, Inc.
`OMID A MANTASHI
`360 GRAND AVENUE, SUITE 90
`OAKLAND, CA 94610
`UNITED STATES
`omid@ipfoundry.com
`Other Motions/Papers
`Omid A. Mantashi
`omid@ipfoundry.com
`/oam208226/
`05/12/2011
`20110512_FA_Notice of Errata RE Motion to Suspend.pdf ( 130 pages
`)(4053963 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`Cancellation No. 92053278
`
`NOTICE OF ERRATA RE
`STIPULATED MOTION TO
`SUSPEND PENDING
`DISPOSITION OF CIVIL
`LITIGATION
`
`37 CFR § 2.117(a)
`
` LIFELINE INTERNATIONAL, INC.,
`
`
`
`Petitioner,
`
`vs.
`
` FITNESS ANYWHERE, INC.,
`
`
`
`Registrant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Registrant Fitness Anywhere, Inc. (“Fitness Anywhere” or “Registrant”)
`
`respectfully submits this Notice of Errata RE Stipulated Motion to Suspend Pending
`
`Disposition of Civil Litigation, which motion was filed with the Board on May 1, 2011.
`
`Regrettably, as a result of undersigned counsel’s error, said Stipulated
`
`Motion of May 1, 2011, referred to Exhibit A and B, but the service and filing copies lacked
`
`the referenced exhibits. Exhibits A and B to the parties’ Stipulated Motion to Suspend
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`Pending Disposition of Civil Litigation is attached hereto.
`
`Counsel apologizes to the Board and counsel of record for this inadvertent
`
`error and any inconvenience caused thereby.
`
`///
`
`
`
`Opp. No. 92053278
`Stipulated Motion to Suspend
`
`
`
`Page 1
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`

`
`Respectfully submitted by:
`
`Attorney for Registrant
`FITNESS ANYWHERE, INC.
`
`;
`
`(
`
`Omid A. Mantashi
`
`Attorney at Law
`360 Grand Ave. Ste. 90
`
`Oakland, CA 94610
`(510) 593-9442. (Voice)
`(510) 868-8310 (Fax)
`omid@ipfoundry.com
`
`S(g2,( '>.o\\
`
`Date
`
`CERTIFICATE OF SERVICE BY USPS MAIL
`
`I hereby certify on May LE, 2011, a true and complete copy ofthe foregoing NOTICE OF ERRATA RE
`MOTION TO SUSPEND PENDING DISPOSITION OF CIVIL LITIGATION has been served on Craig
`Fieschko, counsel of record for Petitioner, via Internet email addressed to cf@dewittross.net in accordance
`with the parties’ service convention applicable to this Proceeding, with a confirmation copy provided via UPS
`delivery with postage thereon fully prepaid addressed to C ‘aig Fiesc
`o, DeWitt Ross & Stevens, 2 E. Mifflin
`St., 6th Floor, Madison, WI 53703.
`
` Executed on May \7« , 2011,
`
`
`Omid A. Mantashi
`
`Opp. No. 92053278
`Stipulated Motion to Suspend
`
`Page 2
`
`

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`EXHIBIT A
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`

`
`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 1 of 21
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Norfolk Division
`
`C.A. No. 2:11-cv-00156-RBS-DEM
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`))
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`))
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`)
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`))
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`FITNESS ANYWHERE, INC.,
`
`Plaintiff,
`
`v.
`
`LIFELINE INTERNATIONAL, INC.
`
`Defendant.
`
`FIRST AMENDED COMPLAINT
`
`Fitness Anywhere, Inc. (“Fitness Anywhere” or “Plaintiff”), through counsel, states as
`
`follows for its Complaint against Lifeline International, Inc. (“Lifeline” or “Defendant”):
`
`1.
`
`This is an action for patent infringement under Title 35 of the United States Code;
`
`for trademark infringement under Title 17 of the United States Code; and for substantially related
`
`state law claims. Because Lifeline’s infringement is ongoing and Fitness Anywhere has been,
`
`and is likely to continue to be, harmed by such infringement, Fitness Anywhere seeks, among
`
`other things, preliminary and permanent injunctive relief.
`
`Parties
`
`2.
`
`Plaintiff Fitness Anywhere, Inc., is a California corporation with its principal
`
`offices located in San Francisco, California.
`
`3.
`
`On information and belief, Defendant Lifeline is a Wisconsin corporation with
`
`offices located in Madison, Wisconsin. On further information and belief, Defendant regularly
`
`conducts business within the Commonwealth of Virginia, including without limitation in this
`
`district.
`
`Jurisdiction, Controlling Law, and Venue
`
`4.
`
`This Court has jurisdiction over the subject matter of this action pursuant to 15
`
`

`
`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 2 of 21
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`U.S.C. § 1121(a), 28 U.S.C. §§ 1331, 1338(a), (b), and 1367(a), because this is a civil action for
`
`patent and trademark infringement arising under the laws of the United States, and for
`
`substantially related claims under the laws of the State of California.
`
`5.
`
`This Court has personal jurisdiction over Lifeline because Lifeline regularly
`
`conducts business within the Commonwealth of Virginia, including without limitation in this
`
`district; and because Lifeline has committed, and continues to commit, acts of infringement
`
`within the Commonwealth of Virginia, including without limitation in this district.
`
`6.
`
`Venue is proper in this district pursuant to 28 U.S.C. §§ 1391(b) and 1400(b)
`
`because Lifeline has committed, and continues to commit, acts of infringement by offering for
`
`sale, selling, and using infringing products within the Commonwealth of Virginia, including
`
`without limitation in this district.
`
`Allegations as to All Counts
`Fitness Anywhere’s Patented TRX Suspension Trainer
`
`7.
`
`Fitness Anywhere is a high-growth consumer products company in the physical
`
`wellness market. Fitness Anywhere delivers world-class physical training products of premium
`
`quality construction, in addition to exercise programs, for a wide variety of consumers, ranging
`
`from casual fitness enthusiasts and serious athletes, to fitness professionals, first responders, and
`
`the US military. Fitness Anywhere’s bodyweight resistance exercise equipment and programs
`
`are changing the way people engage in physical exercise, amateur and professional athletes train
`
`for sport, soldiers train for combat, and trainers and exercise instructors train their clients.
`
`8.
`
`Randy Hetrick is the founder of Fitness Anywhere and the inventor of US Patent
`
`Nos. 7,806,814 (“’814 Patent”) and 7,044,896 (“’896 Patent”). A true and accurate copy of the
`
`’814 Patent is attached hereto as Exhibit A. A true and accurate copy of the ’896 Patent is
`
`attached hereto as Exhibit B.
`
`
`
`2
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`

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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 3 of 21
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`9.
`
`Hetrick developed the TRX Suspension Trainer (“TRX”) as a way to stay in peak
`
`condition without using traditional gym equipment. When mounted to an anchoring point, such
`
`as a door, a rail, a tree branch or the like, the TRX can be manually operated by a user to perform
`
`a variety of exercise routines using the user’s own body weight as resistive force. A true and
`
`accurate photograph of the TRX is attached hereto as Exhibit C. Fitness Anywhere additionally
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`supports the TRX by designing and offering a unique array of body weight exercise routines
`
`suitable for use with the TRX as well as other body weight resistance exercise devices.
`
`10.
`
`Because of Fitness Anywhere’s significant promotional efforts, the breadth of
`
`bodyweight resistance exercises has quickly grown, and the TRX device and programs have
`
`become the leading field-training system available on the market.
`
`Fitness Anywhere’s SUSPENSION TRAINING Marks
`
`11.
`
`Fitness Anywhere owns the mark SUSPENSION TRAINING for its proprietary
`
`exercise devices and related services. The SUSPENSION TRAINING mark registered on June
`
`26, 2007, on the Principal Register maintained by the United States Patent and Trademark Office
`
`(“USPTO”), Registration Number 3,255,160 (“’160 Registration), for “manually-operated
`
`exercise equipment,” with dates of first use, and first use in interstate commerce, of at least as
`
`early as December 1, 2005. The ’160 Registration is currently valid and subsisting. A true and
`
`accurate copy of the Certificate of Registration No. 3,255,160 is attached hereto as Exhibit D.
`
`12.
`
`Plaintiff also owns a federal registration for the mark SUSPENSION TRAINING
`
`for use in connection with “physical education services; physical fitness consultation; physical
`
`fitness instruction,” USPTO Registration No. 3,255,161 (“’161 Registration”), which issued on
`
`June 26, 2007 on the Principal Register, with dates of first use and first use in interstate
`
`commerce of at least as early as December 1, 2005. The ’161 Registration is currently valid and
`
`3
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`

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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 4 of 21
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`subsisting. A true and accurate copy of the Certificate of Registration No. 3,255,161 is attached
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`hereto as Exhibit E. The ’160 Registration and the ’161 Registration, along with all of Fitness
`
`Anywhere’s common law rights in its SUSPENSION TRAINING marks, are collectively
`
`referred to herein as the “SUSPENSION TRAINING Marks.”
`
`13.
`
`At all times relevant to this complaint, Fitness Anywhere has used, and continues
`
`to use, the SUSPENSION TRAINING Marks in connection with the goods and services recited
`
`in the ’160 and ’161 Registrations, including without limitation to advertise, market, offer to sell,
`
`and sell such goods and services in interstate commerce.
`
`14.
`
`Continuously since the dates of first use set forth in the ’160 and ’161
`
`Registrations, Fitness Anywhere has used its registered SUSPENSION TRAINING Marks in
`
`connection with and to identify its manually operated exercise equipment, as well as the
`
`instructional material, exercise programs, and services related thereto, and to distinguish said
`
`products and services from similar offerings by other companies.
`
`15.
`
`Fitness Anywhere prominently displays the SUSPENSION TRAINING Marks on
`
`its exercise products, on the packaging and instructional materials for said products, and in
`
`advertising and promotional materials distributed throughout the United States.
`
`16.
`
`Fitness Anywhere has devoted considerable time, effort, and money to designing,
`
`developing, manufacturing, advertising, marketing, and selling various exercise products,
`
`exercise programs, and related services under the SUSPENSION TRAINING Marks throughout
`
`the United States. As a consequence of its efforts, Fitness Anywhere has developed a large and
`
`diverse customer base and a prominent position as the market leader in the sale of these products
`
`and services.
`
`17.
`
`As of the date of the filing of this Complaint, Fitness Anywhere is actively
`
`4
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`

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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 5 of 21
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`expanding its use of the SUSPENSION TRAINING Marks in connection with the advertising,
`
`marketing, sale, and offer to sell of these products and services throughout the United States.
`
`18.
`
`The SUSPENSION TRAINING Marks, when used in connection with exercise
`
`products and related services indicate to members of the purchasing public that the goods and
`
`services being offered originate from and are provided by Fitness Anywhere only, and no other
`
`person or entity.
`
`19.
`
`Fitness Anywhere has extensively used the SUSPENSION TRAINING Marks to
`
`identify and distinguish its goods and services from those of its competitors, such that the
`
`SUSPENSION TRAINING Marks now represent and possess significant goodwill which is of
`
`great monetary and reputational value to Fitness Anywhere.
`
`20.
`
`Because of Fitness Anywhere’s significant expenditure of time, effort, and money
`
`in the marketing, advertising, and promotion of the SUSPENSION TRAINING Marks, these
`
`Marks have also developed and now possess strong secondary meaning to consumers of exercise
`
`equipment, instructional media, exercise programs, and related services, such that the consuming
`
`public identifies the SUSPENSION TRAINING Marks as indicating famous products of
`
`distinctively high quality originating only from Fitness Anywhere.
`
`Lifeline’s Pattern of Infringing Conduct
`
`21.
`
`Lifeline is a direct competitor of Fitness Anywhere in the exercise industry. On
`
`information and belief, Lifeline has invested significant resources in competing with Fitness
`
`Anywhere’s products and services.
`
`22.
`
`Lifeline has recently begun to advertise, offer for sale, and sell its products under
`
`Fitness Anywhere’s SUSPENSION TRAINING Marks.
`
`23.
`
`On information and belief, Lifeline uses “Suspension Training,” and confusingly
`
`5
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`

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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 6 of 21
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`similar variants thereof, with full knowledge of Fitness Anywhere’s prior and currently existing
`
`federal registrations for its SUSPENSION TRAINING Marks.
`
`24.
`
`An example of Lifeline’s infringing use of Fitness Anywhere’s SUSPENSON
`
`TRAINING Marks in a national fitness magazine advertisement is attached hereto as Exhibit F,
`
`which is a true and accurate copy of the magazine advertisement.
`
`25.
`
`On October 28, 2010, Fitness Anywhere informed Lifeline of its infringement of
`
`the SUSPENSION TRAINING Marks in a demand letter, which specifically identified Fitness
`
`Anywhere’s ownership of the federal registrations for its SUSPENSION TRAINING Marks. A
`
`true and accurate copy of this letter is attached hereto as Exhibit G.
`
`26.
`
`On information and belief, Lifeline knew of Fitness Anywhere’s rights in and to
`
`the federal registrations for the SUSPENSION TRAINING Marks when Lifeline commenced,
`
`and later continued, its use of “Suspension Training” in connection with the sale of Lifeline’s
`
`products.
`
`27.
`
`Lifeline has used Fitness Anywhere’s SUSPENSION TRAINING Marks in
`
`connection with the sale of Lifeline’s goods and services within the State of California.
`
`28.
`
`Lifeline has used Fitness Anywhere’s SUSPENSION TRAINING Marks, inter
`
`alia, both in print and Internet advertisements, on product packaging for manually operated
`
`exercise equipment, in instructional media, and as a point of sale display at industry trade shows.
`
`A true and accurate photograph of Defendant’s point of sale display at the Club Industry Trade
`
`Show, held in Chicago, Illinois, on or about October of 2010, is attached as Exhibit H hereto.
`
`29.
`
`Lifeline has further induced and encouraged various distributors of Fitness
`
`Anywhere products to promote the sale of Lifeline’s goods using Fitness Anywhere’s
`
`SUSPENSION TRAINING Marks on a point-of-sale display. A true and accurate photograph of
`
`6
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`

`
`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 7 of 21
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`a Lifeline point-of-sale display utilized at the booth of a distributor of Fitness Anywhere’s
`
`products at the Club Industry Trade Show held in Chicago, Illinois on or about October of 2010,
`
`is attached as Exhibit I hereto.
`
`30.
`
`These latest acts follow a pattern of infringement by Lifeline targeting the same
`
`customers served by Fitness Anywhere through the same sales and distribution networks in the
`
`same market and retail channels.
`
`31.
`
`Lifeline has hired Joe Knipp, a former Fitness Anywhere sales employee who has
`
`in-depth knowledge of Fitness Anywhere’s sales and marketing efforts,
`
`in order to, on
`
`information and belief, promote sales of Lifeline’s bodyweight resistance exercise devices to the
`
`same consumers served by Fitness Anywhere.
`
`32.
`
`Joe Knipp was hired and employed by Fitness Anywhere within the State of
`
`California.
`
`33.
`
`On information and belief, at all times relevant to the allegations herein, Joe
`
`Knipp was and is a resident of the State of California.
`
`34.
`
`Fitness Anywhere terminated Mr. Knipp on or about June 2010 for, inter alia,
`
`breach of confidentiality and misappropriation of trade secret information, including in part
`
`because Mr. Knipp accessed and copied Fitness Anywhere’s highly confidential and proprietary
`
`sales and marketing data, without authorization.
`
` Mr. Knipp was notified that Fitness
`
`Anywhere’s proprietary information (and all copies thereof) should be immediately destroyed,
`
`and protected from disclosure to or use by any third party, and Mr. Knipp acknowledged receipt
`
`of said notification.
`
`35.
`
`On information and belief, Lifeline has access to and possession of Fitness
`
`Anywhere’s confidential, proprietary, and trade secret information, and has in fact used said
`
`7
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`

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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 8 of 21
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`information to expand its commerce to Fitness Anywhere’s current customers through the same
`
`sales and distribution networks within the same markets and retail channels utilized by Fitness
`
`Anywhere.
`
`36.
`
`As a result of Lifeline’s conduct, Fitness Anywhere has suffered irreparable harm
`
`in addition to monetary damages.
`
`COUNT I
`(Infringement of US Patent No. 7,806,814)
`
`37.
`
`Plaintiff repeats and realleges, as if fully set forth herein, each and every
`
`allegation contained in the foregoing paragraphs.
`
`38.
`
`Fitness Anywhere is the exclusive owner by assignment of all right, title, and
`
`interest in and to the ’814 Patent, titled “COMBINATION GRIP FOR AN EXERCISE DRIVE,”
`
`which was duly and legally issued on October 5, 2010.
`
`39.
`
`Lifeline advertises, sells, manufactures, and/or offers for sale in this district and
`
`throughout the United States one or more bodyweight resistance exercise device products that
`
`are covered by one or more claims of the ’814 Patent, including without limitation products sold
`
`under the names “Jungle Gym XT” and “Jungle Gym Tactical” (collectively, the “Infringing
`
`Products”), all of which products directly compete with products offered by Fitness Anywhere.
`
`40.
`
`Fitness Anywhere has not provided Lifeline with consent or permission to
`
`practice any claim of the ’814 Patent.
`
`41.
`
`Lifeline’s advertisement, manufacture, sale, and/or offering for sale of the
`
`Infringing Products constitutes direct infringement of the ’814 Patent under 35 U.S.C. § 271.
`
`42.
`
`Lifeline’s conduct further constitutes contributory and/or induced infringement of
`
`the ’814 Patent under 35 U.S.C. § 271. Lifeline sells the Infringing Products to customers whose
`
`use of the Infringing Products constitutes direct infringement. On information and belief,
`
`8
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`

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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 9 of 21
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`Lifeline has actively and knowingly induced infringement and continues to actively and
`
`knowingly induce infringement of the ’814 Patent by its customers via, for example, the
`
`instructional materials it provides to customers who purchase the Infringing Products. On
`
`information and belief, Lifeline provides such materials with the intent to encourage
`
`infringement of the ’814 Patent. In addition, Lifeline has provided and continues to provide the
`
`Infringing Products with one or more components that can be combined in an infringing manner
`
`and that lack substantial non-infringing uses. On information and belief, Lifeline has provided
`
`such components with the knowledge that these components can be combined in an infringing
`
`manner and lack substantial non-infringing uses.
`
`43.
`
`44.
`
`Lifeline will continue to infringe the ’814 Patent unless enjoined by this Court.
`
`As a result of Lifeline’s infringement of the ’814 Patent, Fitness Anywhere has
`
`been damaged by the loss of royalties, licensing revenues, profits, or other monetary amounts,
`
`and will continue to be damaged in an amount to be determined at trial.
`
`45.
`
`In addition, any damages Fitness Anywhere could recover would not be an
`
`adequate or complete remedy for Lifeline’s infringement. As a result of Lifeline’s ongoing
`
`infringement, Fitness Anywhere has suffered and will continue to suffer irreparable harm and is
`
`without an adequate remedy at law.
`
`COUNT II
`(Patent Infringement of US Patent No. 7,044,896)
`
`46.
`
`Plaintiff repeats and realleges, as if fully set forth herein, each and every
`
`allegation contained in the foregoing paragraphs.
`
`47.
`
`Fitness Anywhere is the exclusive owner by assignment of all right, title, and
`
`interest in and to the ’896 Patent, titled “EXERCISE DEVICE INCLUDING ADJUSTABLE,
`
`INELASTIC STRAPS,” which was duly and legally issued on May 16, 2006.
`
`9
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`

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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 10 of 21
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`48.
`
`Lifeline advertises, sells, manufactures, and/or offers for sale in this district and
`
`throughout the United States one or more bodyweight resistance exercise device products that
`
`are covered by one or more claims of the ’896 Patent, including without limitation products sold
`
`under the names “Jungle Gym XT” and “Jungle Gym Tactical” (collectively, the “Infringing
`
`Products”), all of which products directly compete with products offered by Fitness Anywhere.
`
`49.
`
`Fitness Anywhere has not provided Lifeline with consent or permission to
`
`practice any claim of the ’896 Patent.
`
`50.
`
`Lifeline’s advertisement, manufacture, sale, and/or offering for sale of the
`
`Infringing Products constitutes direct infringement of the’896 Patent under 35 U.S.C. § 271.
`
`51.
`
`Lifeline’s conduct further constitutes contributory and/or induced infringement of
`
`the ’896 Patent under 35 U.S.C. § 271. Lifeline sells the Infringing Products to customers whose
`
`use of the Infringing Products constitutes direct infringement. On information and belief,
`
`Lifeline has actively and knowingly induced infringement and continues to actively and
`
`knowingly induce infringement of the ’896 Patent by its customers via, for example, the
`
`instructional materials it provides to customers who purchase the Infringing Products. On
`
`information and belief, Lifeline provides such materials with the intent to encourage
`
`infringement of the ’896 Patent. In addition, Lifeline has provided and continues to provide the
`
`Infringing Products with one or more components that can be combined in an infringing manner
`
`and that lack substantial non-infringing uses. On information and belief, Lifeline has provided
`
`such components with the knowledge that these components can be combined in an infringing
`
`manner and lack substantial non-infringing uses.
`
`52.
`
`53.
`
`Lifeline will continue to infringe the’896 Patent unless enjoined by this Court.
`
`As a result of Lifeline’s infringement of the ’896 Patent, Fitness Anywhere has
`
`10
`
`

`
`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 11 of 21
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`been damaged by the loss of royalties, licensing revenues, profits, or other monetary amounts,
`
`and will continue to be damaged in an amount to be determined at trial.
`
`54.
`
`In addition, any damages Fitness Anywhere could recover would not be an
`
`adequate or complete remedy for Lifeline’s infringement. As a result of Lifeline’s ongoing
`
`infringement, Fitness Anywhere has suffered and will continue to suffer irreparable harm and is
`
`without an adequate remedy at law.
`
`COUNT III
`(Trademark Infringement under 15 U.S.C. § 1114 and State and Common Law)
`
`55.
`
`Plaintiff repeats and realleges, as if fully set forth herein, each and every
`
`allegation contained in the foregoing paragraphs.
`
`56.
`
`This claim arises under 15 U.S.C. § 1114 for willful and deliberate infringement
`
`of the SUSPENSION TRAINING Marks.
`
`57.
`
`This claim also arises under California state and common law for willful and
`
`deliberate infringement of the SUSPENSION TRAINING Marks.
`
`58.
`
`The SUSPENSION TRAINING Marks are valid, protectable, and enforceable
`
`marks.
`
`59.
`
`Fitness Anywhere has continuously and exclusively used the federally registered
`
`SUSPENSION TRAINING Marks since at least as early as December of 2005 in connection
`
`with manually operated exercise equipment, physical education services, physical fitness
`
`consultations, and physical fitness instruction, since prior to Lifeline’s use of the identical
`
`“Suspension Training” designation in connection with similar, related, and/or identical goods
`
`and services.
`
`60.
`
`By reason of Fitness Anywhere’s continuous and exclusive use and promotion of
`
`the SUSPENSION TRAINING Marks, as well as the distinctiveness of those Marks, consumers
`
`11
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`

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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 12 of 21
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`associate the SUSPENSION TRAINING Marks with Fitness Anywhere as the single source of
`
`the goods and services provided under the Marks.
`
`61.
`
`Lifeline is using “Suspension Training” to promote the sale of, and in fact sell,
`
`goods and services that are virtually identical to those offered by Fitness Anywhere in
`
`connection with its SUSPENSION TRAINING Marks, including without limitation through the
`
`operation of an Internet website displaying, advertising, marketing, offering for sale, and selling
`
`exercise equipment and related products and services.
`
`62.
`
`On information and belief, Lifeline has used Fitness Anywhere’s SUSPENSION
`
`TRAINING Marks in connection with the sale of Lifeline’s goods and services within the State
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`of California.
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`63.
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`Fitness Anywhere has not given Lifeline consent, permission, or license to use the
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`SUSPENSION TRAINING Marks.
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`64.
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`Lifeline’s use of “Suspension Training” creates a likelihood of confusion,
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`mistake, or deception among consumers between Lifeline’s goods and services and those offered
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`by Fitness Anywhere in connection with the SUSPENSION TRAINING Marks.
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`65.
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`Lifeline knew, or should have known by the exercise of reasonable care, that its
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`use of the SUSPENSION TRAINING Marks in connection with manually operated exercise
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`equipment, in addition to related goods and services, would cause confusion, mistake, or
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`deception among consumers of those services.
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`66.
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`On information and belief, Lifeline knew of Fitness Anywhere’s prior use of its
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`federally registered SUSPENSION TRAINING Marks, and intended to induce and did induce,
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`and intends to induce and will induce, consumers to purchase Lifeline’s goods and services by
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`trading off the extensive goodwill built up by Fitness Anywhere in the SUSPENSION
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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 13 of 21
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`TRAINING Marks.
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`67.
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`To date, Lifeline has not ceased using “Suspension Training” in violation of
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`Fitness Anywhere’s rights to the exclusive use of its SUSPENSION TRAINING Marks.
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`68.
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`Lifeline’s wrongful acts alleged herein violate Fitness Anywhere’s rights under
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`section 32(a) of the Lanham Act, 15 U.S.C. § 1114(a), and, on information and belief, have been
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`deliberate, willful, and in disregard of Fitness Anywhere’s rights.
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`69.
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`Lifeline’s wrongful acts alleged herein violate Fitness Anywhere’s rights
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`protected by California state and common law.
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`70.
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`Lifeline’s wrongful acts alleged herein have permitted and/or will permit Lifeline
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`to earn substantial revenues and profits on the strength of Fitness Anywhere’s extensive
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`advertising, consumer recognition, and goodwill associated with its SUSPENSION TRAINING
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`Marks.
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`71.
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`By reason of Lifeline’s wrongful acts alleged herein, Fitness Anywhere has
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`suffered and is continuing to suffer damage to its business, trade, reputation, and goodwill as a
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`result of the erroneous perception that the goods and services of Lifeline are affiliated with,
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`sponsored by, approved by, or originate from Fitness Anywhere.
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`72.
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`As a result of Lifeline’s wrongful acts alleged herein, Fitness Anywhere has
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`suffered and is continuing to suffer irreparable injury. Fitness Anywhere cannot be adequately
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`compensated for these injuries by damages alone, and Fitness Anywhere has no adequate remedy
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`at law for Lifeline’s infringement of its rights. Fitness Anywhere is entitled to preliminary and
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`permanent injunctive relief, as well as attorneys’ fees.
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`COUNT IV
`(Federal Unfair Competition under 15 U.S.C. § 1125)
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`73.
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`Plaintiff repeats and realleges, as if fully set forth herein, each and every
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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 14 of 21
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`allegation contained in the foregoing paragraphs.
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`74.
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`This claim arises under 15 U.S.C. § 1125(a) for willful and deliberate unfair
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`competition, including false designation of origin and palming off.
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`75.
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`Having constructive, if not actual, knowledge of Fitness Anywhere’s prior use of
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`the SUSPENSION TRAINING Marks, Lifeline commenced, and continues its infringing use of
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`the SUSPENSION TRAINING Marks in interstate commerce in connection with goods and
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`services that are similar, related, and/or identical to those offered by Fitness Anywhere, which
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`use by Lifeline tends to falsely describe and represent a false designation of origin with Fitness
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`Anywhere, and which tends to palm off Lifeline’s goods and services as affiliated with,
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`sponsored by, approved by, or originating from Fitness Anywhere.
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`76.
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`The SUSPENSION TRAINING Marks are valid and enforceable, and have
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`attained secondary meaning such that consumers identify them as originating from Fitness
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`Anywhere.
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`77.
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`Lifeline’s use of the SUSPENSION TRAINING Marks creates a likelihood of
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`confusion in the minds of consumers with Fitness Anywhere’s SUSPENSION TRAINING
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`Marks.
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`78.
`
`Lifeline’s use of the SUSPENSION TRAINING Marks demonstrates Lifeline’s
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`intent both to palm off its goods and services as affiliated with, sponsored by, approved by, or
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`originating from Fitness Anywhere, and to trade off the goodwill that Fitness Anywhere has
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`established in the use of its marks in connection with its goods and services.
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`79.
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`Lifeline’s wrongful acts alleged herein constitute unfair competition under 17
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`U.S.C. § 1125(a), and Fitness Anywhere has been and will continue to be damaged by such
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`unfair competition, suffering injury to its business, trade, reputation, and goodwill.
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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 15 of 21
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`80.
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`Lifeline’s unfair competition, false designation of origin, and palming off have
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`been willful, deliberate, and intentional, and will no doubt continue unless enjoined by this
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`Court.
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`COUNT V
`(California Business and Professions Code § 17200)
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`81.
`
`Plaintiff repeats and realleges, as if fully set forth herein, each and every
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`allegation contained in the foregoing paragraphs.
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`82.
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`This claim arises under California law, including Cal. Bus. & Prof. Code section
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`17000 et seq., and the common law.
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`83.
`
`On information and belief, Lifeline has used Fitness Anywhere’s SUSPENSION
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`TRAINING Marks in connection with the sale of Lifeline’s goods and services within the State
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`of California.
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`84.
`
`Lifeline’s use of
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`the SUSPENSION TRAINING Marks, and Lifeline’s
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`misappropriation of Fitness Anywhere’s trade secrets as set forth below, constitute per se
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`unlawful and unfair business practices under California Business & Professions Code section
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`17200.
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`85.
`
`Lifeline’s violations of California law have been willful, deliberate, and
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`intentional, and will no doubt continue unless enjoined by this Court.
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`COUNT VI
`(California Misappropriation of Trade Secrets)
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`86.
`
`Plaintiff repeats and realleges, as if fully set forth herein, each and every
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`allegation contained in the foregoing paragraphs.
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`87.
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`At all times alleged herein, Plaintiff is and has been the owner of proprietary and
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`confidential sales and marketing information, including without limitation yearly sales targets
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`Case 2:11-cv-00156-RBS -DEM Document 18 Filed 04/15/11 Page 16 of 21
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`and strategies, action reports, and various customer contracts, including proposed, pending, and
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`executed contracts with the United States military (“Fitness Anywhere Confidential
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`Information”).
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`88.
`
`The Fitness Anywhere Confidential Information is proprietary to Fitness
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`Anywhere and derives its independent economic value to Fitness Anywhere from not being
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`generally known to the public, or to others (such as Lifeline) who can derive economic value and
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`benefit from its disclosure or use.
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`89.
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`The Fitness Anywhere Confidential Information was the subject of reasonable
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`efforts by Fitness Anywhere to maintain its secrecy, and was specifically identified to Joe Knipp
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`as being confidential trade secret information proprietary to Fitness Anywhere pursuant to
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`California Civil Code § 3426 et seq. Mr. Knipp acknowledged his receipt and knowledge of the
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`Fitness Anywhere Confidential Information.
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`90.
`
`Joe Knipp was hired and employed by Fitness Anywhere within the State of
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`California.
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`91.
`
`On information and belief, at all times relevant to the allegations herein, Joe
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`Knipp was and is a resident of the State of California.
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`92.
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`The Fitness Anywhere Confidential Information constitutes trade secrets owned
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`by Fitness Anywhere.
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`93.
`
`On information and belief, at all times alleged herein, Lifeline knew, possessed,
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`or utilized Fitness Anywhere’s trade secrets, all to Fitness Anywhere’s detriment, to expand and
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`enhance its infringement of Fitness Anywhere’s intellectual property, and to exte