Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA952838
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`Filing date:
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`02/07/2019
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`92065939
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`Party
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`Correspondence
`Address
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Attachments
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`Plaintiff
`Sportspower Limited
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`CLEMENT CHENG
`NEWHOPE LAW PC
`4522 KATELLA AVE SUITE 200
`LOS ALAMITOS, CA 90720
`UNITED STATES
`law@clemcheng.com
`714-825-0555
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`Motion to Suspend for Civil Action
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`Clement Cheng
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`law@clemcheng.com
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`/Clement Cheng/
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`02/07/2019
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`Motion for Suspension Pending Outcome of Another Proceeding.pdf(13629
`bytes )
`A Plaintiff Original Complaint.pdf(389275 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`In the matter of Trademark Registration No. 5,152,625
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`International Class: 28
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`Registrant: Li-Ju Hsiang
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`Trademark: JP JUMP POWER
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`Registered: February 28, 2017
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`SPORTSPOWER LIMITED
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`LI-JU HSIANG
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`Petitioner,
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`Cancellation No. 92065939
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`Registration No. 5,152,625
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`v.
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`Registrant.
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`MOTION FOR SUSPENSION
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`PENDING OUTCOME OF ANOTHER PROCEEDING
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`Sportspower Ltd. ("Petitioner"), petitioned to cancel the JP JUMP POWER and
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`design mark on April 17, 2017. Since the original filing of the petition to cancel, the dispute
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`has grown beyond the bounds of the subject matter jurisdiction of the Trademark Trial And
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`Appeal Board to a larger controversy involving multiple intellectual property issues.
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`The petitioner filed a lawsuit in the United States District Court for the Eastern
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`District of Texas alleging patent infringement, trademark infringement and unfair
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`competition on January 30, 2019 as case Civil Action No. 4:19-CV-00066. The complaint is
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`attached as Exhibit A to this Motion. Plaintiff Sportspower Ltd. (“Sportspower”) asserts
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`claims against Defendant Crowntec Fitness Mfg. Ltd. (“Crowntec”) for trademark
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`infringement in violation of 15 U.S.C. § 1114 (Section 32 of the Lanham Act), unfair
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`competition in violation of 15 U.S.C. § 1125(a)(1)(A) (Section 43(a)(1)(A) of the Lanham
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`1
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`Act), patent infringement under 35 U.S.C. § 1 et seq. as well as trademark infringement,
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`unfair competition, and unjust enrichment under Texas law.
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`Although the petitioner also requests cancellation of Trademark Registration No.
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`5,152,625 in the District Court complaint, the cancellation of the registration is only a small
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`part of the entire case and controversy. In the interest of judicial economy, the present
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`proceeding should be suspended until the disposition of the federal court case. The federal
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`court case involves the mark at issue in this case, namely the JP JUMP POWER logo, but
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`also involves the various uses of JUMP POWER beyond the scope of this present proceeding
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`before the Trademark Trial And Appeal Board.
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`TBMP 510.02(a) states:
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`"Whenever it comes to the attention of the Board that a party or parties to a
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`case pending before it are involved in a civil action that may have a bearing on
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`the Board case, proceedings before the Board may be suspended until final
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`determination of the civil action. [ Note 1.]
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`Most commonly, a request to suspend pending the outcome of another
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`proceeding seeks suspension because of a civil action pending between the
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`parties in a federal district court. Although the Supreme Court held that issue
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`preclusion can be based on a decision by the Board in a case in which the
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`ordinary elements of issue preclusion are met, the Board’s policy to suspend in
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`favor of a civil action has not changed. A civil action may involve other
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`matters outside Board jurisdiction and may consider broader issues beyond
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`right to registration and, therefore, judicial economy is usually served by
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`suspension. [ Note 2.]
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`Further, pursuant to 37 C.F.R. § 2.117(a), the Board may also, in its discretion,
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`suspend a proceeding pending the final determination of another Board
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`proceeding in which the parties are involved [ Note 3.], or a civil action
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`pending between the parties in a state court [ Note 4.], or a foreign action
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`between the parties, wherein one party challenges the validity of a foreign
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`registration upon which the other party’s subject application is based [ Note 5.],
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`2
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`or an arbitration pending between the parties [ Note 6.], or even another
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`proceeding in which only one of the parties is involved. [ Note 7.]
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`Unless there are unusual circumstances, the Board will suspend proceedings in
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`the case before it if the final determination of the other proceeding may have a
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`bearing on the issues before the Board. [ Note 8.]"
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`Because the petitioner filed the lawsuit in United States District Court seeking
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`injunctive relief, and raising a number of various related issues, it would also be more cost-
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`effective for the Board to suspend this action to avoid a duplication of litigation in separate
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`forums. Even though there would be issue preclusion based on a decision by the Board, such
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`issue preclusion would be so narrow that it would not materially affect the overall dispute
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`between the parties.
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`Li-Ju Hsiang (Registrant) is a principal and officer of Crowntec. Petitioner
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`Sportspower believes that Crowntec is the real party in interest in this TTAB case because
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`Crowntec used the mark and continues to use the mark. Registrant Li-Ju Hsiang, a natural
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`person, produced a person most knowledgeable namely Jeff Daprizio their sales
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`representative in the US in response to Sportspower’s notice of deposition in this case. Thus,
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`Crowntec Fitness Mfg. Ltd. agrees they are the real party in interest in this case.
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`A suspension would not unfairly prejudice the registrant, and would not materially
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`affect the procedure of this matter. A suspension would save both the Petitioner and
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`Registrant time and attorneys fees in addition to providing attorneys fees. It would be more
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`unfair to allow multiple simultaneous actions against the registrant. If the board cannot
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`suspend this proceeding, the petitioner alternatively requests that the Board dismiss the
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`petition without prejudice so as to avoid duplication of litigation and its related costs and fees.
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`Thus, Petitioner respectfully requests that the proceeding be suspended.
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`DATED: February 7th, 2019
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`NEWHOPE LAW, PC
`
`/Clement Cheng/___________________
`Clement Cheng, Esq.
`4522 Katella Ave 200
`Los Alamitos, CA 90720
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`3
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the forgoing
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`document has been emailed to: mailroom@mg-ip.com
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`/Clement Cheng/___________________
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`4
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`Exhibit A
`Exhibit A
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`

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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 1 of 17 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`
`SPORTSPOWER LTD., a Hong Kong
`Limited Company,
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`
`
`Plaintiff,
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`V.
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`CROWNTEC FITNESS MFG. LTD., a
`China Limited Company,
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`Defendant.
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`CIVIL ACTION NO. 4:19-CV-00066
`
`JURY DEMANDED
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`
`
`In this Complaint, Plaintiff Sportspower Ltd. (“Sportspower”) asserts claims against
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`Defendant Crowntec Fitness Mfg. Ltd. (“Crowntec”) for trademark infringement in violation of 15
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`U.S.C. § 1114 (Section 32 of the Lanham Act), unfair competition in violation of 15 U.S.C. §
`
`1125(a)(1)(A) (Section 43(a)(1)(A) of the Lanham Act), patent infringement under 35 U.S.C. § 1 et
`
`seq. as well as trademark infringement, unfair competition, and unjust enrichment under Texas law.
`
`Sportspower seeks (1) actual, treble, and exemplary damages from Crowntec; (2) actual damages
`
`caused by Crowntec’s infringement of U.S. Patent No. D653,299 (“the ’299 Patent”); (3) an order
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`canceling Crowntec’s trademark registration for JP JUMP POWER (U.S. Reg. Number 5,152,625);
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`(4) a permanent injunction; and (5) Sportspower’s attorneys’ fees and costs of court.
`
`I. PARTIES
`
`1.
`
`Sportspower is a company formed under the laws of Hong Kong with a principal
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`place of business in Hong Kong at: 20/F, Parkview Centre, 7 Lau Li Street Causeway Bay, Hong
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`Kong. Samuel Chen is the CEO of Sportspower.
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`
`
`Page 1
`
`

`

`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 2 of 17 PageID #: 2
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`2.
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`Crowntec is a Taiwanese company with principal place of business in Taiwan at:
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`Crowntec Fitness Mfg. Ltd.; 8th Floor, No. 592, Tong An Street; Taoyuan City, Taiwan; Tel: +886
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`3261980/ 3261981. Li-Ju Hsiang is an officer of Crowntec.
`
`II. JURISDICTION AND VENUE
`
`3.
`
`This is an action for patent infringement arising under the Patent Act, 35 U.S.C. §
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`1 et seq., and for trademark infringement and unfair competition under the Lanham Act, 15 U.S.C.
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`§§ 1114, 1125, as well as trademark infringement, unfair competition, and unjust enrichment
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`under Texas law.
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`4.
`
`This Court has original jurisdiction over the subject matter of the Patent Act and
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`Lanham Act claims pursuant to 28 U.S.C. §§ 1331 and 1338(a). The Court has subject-matter
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`jurisdiction over the Texas state-law claims in this action under 28 U.S.C. § 1367 because these
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`claims arise out of the same transactions and occurrences giving rise to the federal Lanham Act
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`claims.
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`5.
`
`The Court has personal jurisdiction over Crowntec because the acts that are the
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`subject of Sportspower’s claims, including trademark infringement and patent infringement, were
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`committed by Crowntec, in part, in the State of Texas in this Judicial District. Crowntec conducts
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`business through retailers, such as Dick’s Sporting Goods, Walmart, and Wayfair, who offer or
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`offered for sale the Accused Products through their websites. See Exhibits 3-6. These websites
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`make/made use of the infringing JUMP POWER trademark as well as in the case of Walmart and
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`Wayfair, offered for sale and sold the Patent Infringing Product, defined below. The Dick’s
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`Sporting Goods site 1 and on information and belief, the Walmart and Wayfair sites, are active
`
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`1 Customers in the Judicial District can purchase Crowntec’s “Jump Power 14’ Round Trampoline with
`Safety Enclosure Net” online through the Dick’s Sporting Goods website for in-store pick up, and
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`
`
`Page 2
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`

`

`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 3 of 17 PageID #: 3
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`websites allowing consumers to place orders directly through the sites.2 Texas residents residing in
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`this Judicial District are/were able to purchase products directly through these websites. Therefore,
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`Crowntec is doing business in this Judicial District and committing acts of infringement, unfair
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`competition, and other wrongs in this Judicial District. As a consequence, Crowntec has
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`purposefully availed itself of the laws of the State of Texas, and therefore, exercising personal
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`jurisdiction over it is fair and proper.
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`6.
`
`Under 28 U.S.C. § 1391(b)(2), venue is proper in this judicial district because a
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`substantial part of the events giving rise to the claims of this action occurred in this Judicial District.
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`Venue is also proper under 28 U.S.C. § 1391(c)(3) because on information and belief, Crowntec is
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`not a resident of the U.S. As set forth in more detail below and incorporated herein, Crowntec
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`has sold, offered for sale, and marketed the Accused Products to citizens of this State and in
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`particular, citizens of this Judicial District through brick and mortar retail stores as well as active
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`websites through which the Accused Products are offered for sale. Also, under 28 U.S.C. § 1391(d),
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`venue is proper in this Judicial District because an alien may be sued in any district.
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`III. FACTUAL BACKGROUND
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`A.
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`Sportspower’s business and intellectual property ownership.
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`
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`7.
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`Sportspower has sold backyard play equipment, including trampolines, under the
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`SPORTSPOWER® trademark since at least as early as 2005. SPORTSPOWER® is a well-known
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`customers wishing to return trampolines purchased through the Dick’s Sporting Goods website or wishing
`to purchase the Accused Products in person may do so at a Dick’s Sporting Goods store, such as the Allen,
`Texas location within this Judicial District.
`
` 2
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` The Trampoline 6.62’ Hexagon with Safety Enclosure was out of stock and no longer available for
`purchase as of the time of the Original Complaint’s filing. However, each site contains at least one product
`review.
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`PLAINTIFF’S ORIGINAL COMPLAINT
`
`
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`Page 3
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`

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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 4 of 17 PageID #: 4
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`brand of trampolines that is sold at major retailers in the United States such as Walmart, Sam’s
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`Club, Academy, and Amazon.com. SPORTSPOWER® trampolines were also previously sold at
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`major retailers such as Sears K-Mart, Toys “R” Us, The Sports Authority, and Sports Chalet.
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`SPORTSPOWER®--branded trampolines are further sold at trampoline specialty stores such as
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`Trampoline USA, which has both online and physical retail sales. In the United States, Sportspower
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`primarily sells SPORTSPOWER®-branded backyard play equipment such as swing sets, inflatable
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`play structures, and trampolines. Sportspower also sells SPORTSPOWER®-branded game tables
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`including table tennis and billiards. Sportspower further sells other types of play equipment such as
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`bubble soccer, water spray mats, and tents.
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`8.
`
`Sportspower owns a variety of trademark registrations including U.S. Trademark
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`Registration No. 3,689,452 for SPORTSPOWER in Class 28, which was registered on September
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`29, 2009, and is now incontestable, in connection with Sporting goods, namely, trampolines, game
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`tables and weight lifting machines. (“Sportspower’s Registered Mark”). See Exhibit 2. Sportspower
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`also owns U.S. Trademark Registration No. 5,151,272 for SPORTSPOWER in Class 35, which was
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`registered February 28, 2017, in connection with “[w]holesale distributorships featuring sports
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`equipment and sports equipment parts; Wholesale ordering services in the field of sports equipment
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`and sports equipment parts; Wholesale services by direct solicitation by sales agents in the field of
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`sports equipment and sports equipment parts; Wholesale store services featuring sports equipment
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`and sports equipment parts; On-line wholesale and retail store services featuring sports equipment
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`and sports equipment parts.”
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`9.
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`SPORTSPOWER® was used as a trade name and service mark for sports equipment
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`trade agency services since as early as 1996. Sportspower later promoted its SPORTSPOWER® and
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`
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`Page 4
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`

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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 5 of 17 PageID #: 5
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`derivative trademarks in the United States for use on sports equipment since at least as early as 2005.
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`Over the years, Sportspower’s marks have become well known worldwide. As a result, Sportspower
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`has attained valuable rights and goodwill in the mark SPORTSPOWER® and its derivative marks.
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`As discussed below, these rights predate Crowntec’s rights.
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`10.
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`In addition to use with trampoline products, Sportspower also used the mark
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`JUMPPOWER as the name of a subsidiary in 2009 in discussions with United States retail customers
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`before Crowntec’s alleged first use in commerce of its mark. By prior use with U.S. retail customers,
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`the JUMPPOWER name used with the subsidiary was associated with Sportspower since before the
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`date that Crowntec began using JUMP POWER to compete with Sportspower. The U.S. retail
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`customers referred to JUMPPOWER and SPORTSPOWER synonymously. Being the OEM
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`supplier for Sportspower, Crowntec knew of the trade name usage and adopted “Jump Power”
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`anyway. In an email of Tina Hsiang of Crowntec to Joanna Chen of Sportspower, Ms. Hsiang has
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`a comparison chart between YJ, a competitor trampoline manufacturer, and Jump Power,
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`demonstrating Crowntec’s early knowledge of the use of the JUMPPOWER mark by Sportspower.
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`Thus, both Crowntec and U.S. retail customers used JUMP POWER and SPORTSPOWER
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`synonymously.
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`11.
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`In addition to the SPORTSPOWER® registrations, Sportspower owns common law
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`rights to its JUMPPOWER trademark in connection with trampoline products. JUMPPOWER
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`was described to retailers such as Walmart and Academy Sports + Outdoors (“Academy”) as being
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`synonymous with SPORTSPOWER. Academy is headquartered in Katy, Texas.
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`12.
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`In addition to the aforementioned trademarks, Sportspower is the exclusive licensee
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`of U.S. Patent No. D653,299 (the ’299 Patent). Exhibit 1 is true and correct copy of the ’299
`
`PLAINTIFF’S ORIGINAL COMPLAINT
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`Page 5
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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 6 of 17 PageID #: 6
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`Patent. The patent is directed to an ornamental design for a hexagonal trampoline. As shown in
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`detail below, in addition to infringing Sportspower’s Marks, Crowntec has infringed the ’299
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`Patent.
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`B.
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`Crowntec’s infringing activities.
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`13.
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`Crowntec advertised its own brand of trampolines during the time that it was an
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`OEM manufacturer for Sportspower, but only changed to JUMP POWER after it stopped making
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`OEM product for Sportspower. Now, Crowntec manufactures and sells trampolines in
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`competition with Sportspower using the mark JUMP POWER that is confusingly similar to
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`Sportspower’s SPORTSPOWER® and JUMPPOWER marks. As seen in Exhibit 5, the screenshot
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`of the dickssportinggoods.com website shows that a Jump Power 14' Round Trampoline is being
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`sold for $199.98 (marked down from $299.99). The advertisement prominently features the JUMP
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`POWER mark. Exhibit 6 shows that the packaging for the 14’ trampoline also features the JUMP
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`POWER mark and further contains an image of the Patent Infringing Product.
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`14.
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`Crowntec registered the JP JUMP POWER logo as U.S. Trademark Registration
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`No. 5,152,625 on February 28, 2017, which lists “[s]wings; Modular play centers consisting of
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`panels, decks, platforms, handrails, slides, and steps all sold separately or in selected combinations;
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`Seesaws; parlor games; Horizontal bars; Manually operated exercise equipment for physical fitness
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`purposes; trampolines; Exercise treadmills; Bags specially adapted for sports equipment; Play balls.”
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`On information and belief, Crowntec has either not used or has abandoned use of the trademark
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`on a variety of the products listed.
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`15.
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`The SPORTSPOWER® and JUMPPOWER marks, on one hand, and the JUMP
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`POWER mark used by Crowntec, on the other hand, are similar in sight, sound, and meaning;
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Page 6
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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 7 of 17 PageID #: 7
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`have similar customers and are used on similar goods; and are offered in similar channels of trade,
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`all of which cause a likelihood of confusion. As a result, the continued sales and use of the
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`SPORTSPOWER® and JUMPPOWER marks as well as its registration of U.S. Trademark
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`Registration No. 5,152,625 is causing harm to Sportspower.
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`16. Use of JUMP POWER by Crowntec has also led to actual confusion with
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`Sportspower. By way of example, Nicholas Taylor, a manager at Academy, headquartered in Katy,
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`Texas, was actually confused when he blamed Sportspower for Crowntec missing the Amazon
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`Standard Identification Number (ASIN) on a “JUMP POWER” product that was being sold by
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`Crowntec. An email from Nicholas Taylor to Sportspower shows that there was actual confusion
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`in Texas when he thought that Sportspower was affiliated with or related to the JUMP POWER
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`product.
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`17.
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`Another example of actual confusion is when Menards’ buyer blamed Sportspower
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`for trademark infringement of the Tencate Permatron name regarding Crowntec’s JUMP POWER
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`product. A SPORTSPOWER®-branded product was replaced by JUMP POWER product, but the
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`Menards’ buyer thought that the two companies were related or affiliated and working together.
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`Thus, the buyer had difficulty believing Sportspower’s explanation that it was not the
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`SPORTSPOWER®-branded product that had a trademark problem with Tencate Permatron
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`18.
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`Sportspower filed a petition to cancel U.S. Trademark Registration No. 5,152,625
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`with the United States Trademark Trial and Appeal Board on April 17, 2017. This cancellation
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`proceeding is currently pending as Cancellation Number 92065939 and is based on priority of use,
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`actual confusion, and likelihood of confusion.
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Page 7
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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 8 of 17 PageID #: 8
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`C.
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`Unless Crowntec is enjoined, Sportspower will suffer irreparable harm for which it has
`no remedy at law.
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`19. Unless enjoined, Crowntec will continue to trade on the goodwill Sportspower has
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`built in its marks and profit unfairly from its trademark infringement, unfair competition, and other
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`wrongs. Crowntec will also continue committing acts of patent infringement. Moreover,
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`Sportspower has no ability to control the quality of the goods provided by Crowntec in conjunction
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`with its infringing JUMP POWER mark, and therefore, is at extreme risk of irreparable harm for
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`which there is no remedy at law and for which money damages cannot repair.
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`20.
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`By way of example only, if end users or retailer customers of Crowntec receive an
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`inferior product, they may mistakenly attribute that bad experience to Sportspower due to
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`Crowntec’s adoption of the same and confusingly similar mark. This is heightened by the fact that
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`Crowntec and Sportspower are direct competitors selling competing products.
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`21.
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`This is a case of a company (Crowntec) intentionally adopting the exact same and
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`similar trademarks and trade name of its competitor (Sportspower). On information and belief,
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`Crowntec is intentionally trading off the goodwill Sportspower has built.
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`IV. CLAIMS
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`A.
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`COUNT I — TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 1114 (SECTION 32 OF THE
`LANHAM ACT)
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`22.
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`Sportspower repeats and realleges the factual allegations contained in the foregoing
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`paragraphs as if fully set forth at length herein.
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`23.
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`Crowntec’s aforesaid acts committed in interstate commerce constitute trademark
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`infringement in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114, of Sportspower’s
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`Registered Mark. As established by the registration for this mark, Sportspower’s Registered Mark is
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`Page 8
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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 9 of 17 PageID #: 9
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`protectable and enforceable against Crowntec, Sportspower is the owner of the mark, and
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`Sportspower is the senior user of the mark. Moreover, Crowntec’s actions have caused a likelihood
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`of confusion and damage to Sportspower.
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`24.
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`In accordance with Section 34 of the Lanham Act, 15 U.S.C. § 1116, Crowntec
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`should be permanently enjoined from using “Jump Power” or any confusingly similar variation
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`thereof, alone or in combination with other words, as a trademark, service mark, corporate name,
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`trade name component, domain name or domain name component, or in advertising, in meta tag
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`data, or otherwise, to market, advertise, or identify Crowntec or its competing product.
`
`
`
`25. Under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), Sportspower is entitled
`
`to recover from Crowntec: (i) Crowntec’s profits, (ii) the damages sustained by Sportspower, and (iii)
`
`the costs of this action. Due to the knowing, intentional, and purposeful nature of Crowntec’s
`
`conduct, Sportspower seeks treble the amount of its actual damages. Due to the exceptional nature
`
`of this case, Sportspower also seeks its reasonable attorneys’ fees.
`
`B.
`
`
`
`
`COUNT II — UNFAIR COMPETITION UNDER 15 U.S.C. § 1125(A) (SECTION 43(A) OF THE
`LANHAM ACT)
`
`26.
`
`Sportspower repeats and realleges the factual allegations contained in the foregoing
`
`paragraphs as if fully set forth at length herein.
`
`
`
`27.
`
`Crowntec’s aforesaid acts,
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`including but not
`
`limited
`
`to
`
`infringing
`
`the
`
`SPORTSPOWER® and JUMPPOWER marks (collectively, “Sportspower Marks”), committed in the
`
`course of interstate commerce constitute material false and misleading representations of fact with
`
`respect to the origin of Crowntec’s products, and the affiliation, sponsorship, and approval of
`
`Crowntec’s products in violation of Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. §
`
`1125(a)(1)(A). Sportspower has been damaged by Crowntec’s actions. Crowntec’s aforesaid acts are
`
`PLAINTIFF’S ORIGINAL COMPLAINT
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`
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`Page 9
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`

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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 10 of 17 PageID #: 10
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`likely to cause confusion or mistake as to the origin of Crowntec’s products and the affiliation,
`
`sponsorship, and approval of Crowntec’s products.
`
`
`
`28.
`
`In accordance with Section 34 of the Lanham Act, 15 U.S.C. § 1116, Crowntec
`
`should be permanently enjoined from using “Jump Power” or any confusingly similar variation
`
`thereof, alone or in combination with other words, as a trademark, service mark, corporate name,
`
`trade name component, domain name or domain name component, or in advertising, in meta tag
`
`data, or otherwise, to market, advertise, or identify Crowntec or its competing product.
`
`
`
`29. Under Section 35 of the Lanham Act, 15 U.S.C. § 1117(a), Sportspower is entitled
`
`to recover from Crowntec: (i) Crowntec’s profits, (ii) the damages sustained by Sportspower, and (iii)
`
`the costs of this action. Due to the knowing, intentional, and purposeful nature of Crowntec’s
`
`conduct, Sportspower seeks treble the amount of its actual damages. Due to the exceptional nature
`
`of this case, Sportspower also seeks its reasonable attorneys’ fees.
`
`C.
`
`COUNT III — TRADEMARK INFRINGEMENT IN VIOLATION OF TEXAS LAW
`
`
`
`30.
`
`Sportspower repeats and realleges the factual allegations contained in the foregoing
`
`paragraphs as if fully set forth at length herein.
`
`
`
`31.
`
`As established above, Sportspower is the senior user of the Sportspower Marks and
`
`enjoys priority over Crowntec. Sportspower’s use of these marks in commerce has resulted in the
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`marks being protectable and enforceable. Crowntec’s use of the JUMP POWER mark in commerce
`
`in connection with competing products constitutes infringement of Sportspower’s common-law
`
`rights to its marks. Crowntec’s use of the mark is likely to cause confusion or mistake as to the
`
`source of Crowntec’s products.
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`
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`Page 10
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`

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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 11 of 17 PageID #: 11
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`
`
`32.
`
`In accordance with Texas law, Crowntec should be permanently enjoined from using
`
`“Jump Power” or any confusingly similar variation thereof, alone or in combination with other
`
`words, as a trademark, service mark, corporate name, trade name component, domain name or
`
`domain name component, or in advertising, in meta tag data, or otherwise, to market, advertise, or
`
`identify Crowntec or its competing product.
`
`
`
`33.
`
`Sportspower has been damaged by Crowntec’s actions. According to Texas law,
`
`Sportspower is entitled to recover its actual damages caused by Crowntec’s trademark infringement
`
`and exemplary damages due to the knowing, willful, and intentional nature of Crowntec’s actions.
`
`D.
`
`COUNT IV — UNFAIR COMPETITION UNDER TEXAS LAW
`
`
`
`34.
`
`Sportspower repeats and realleges the factual allegations contained in the foregoing
`
`paragraphs as if fully set forth at length herein.
`
`
`
`35.
`
`Crowntec has engaged in commerce in the State of Texas and this Judicial District
`
`by marketing, offering to sell, and selling Crowntec’s competing products under the misleading
`
`“JUMP POWER” name and mark. Crowntec has advertised its products through retailers selling
`
`its products as well as on the products and related packaging. Crowntec has competed unfairly in
`
`violation of Texas law by misrepresenting or leading the public to believe that its products are
`
`sponsored by, approved by, affiliated with, associated with, or originated by Sportspower.
`
`
`
`36.
`
`In accordance with Texas law, Crowntec should be permanently enjoined from using
`
`“Jump Power” or any confusingly similar variation thereof, alone or in combination with other
`
`words, as a trademark, service mark, corporate name, trade name component, domain name or
`
`domain name component, or in advertising, in meta tag data, or otherwise, to market, advertise, or
`
`identify Crowntec or its competing product.
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`
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`Page 11
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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 12 of 17 PageID #: 12
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`
`
`37.
`
`Sportspower has been damaged by Crowntec’s actions. According to Texas law,
`
`Sportspower is entitled to recover its actual damages caused by Crowntec’s unfair competition and
`
`exemplary damages due to the knowing, willful, and intentional nature of Crowntec’s actions.
`
`E.
`
`COUNT V — UNJUST ENRICHMENT UNDER TEXAS LAW
`
`
`
`38.
`
`Sportspower repeats and realleges the factual allegations contained in the foregoing
`
`paragraphs as if fully set forth at length herein.
`
`
`
`39.
`
`As set forth above, Crowntec has used the Sportspower Marks and confusingly
`
`similar variations thereof and goodwill as an integral step of Crowntec’s sales of its products.
`
`Crowntec has received a direct pecuniary benefit from these unlawful acts. Crowntec is therefore
`
`unjustly enriched to Sportspower’s detriment. As a result, Sportspower is entitled to recover its
`
`actual damages caused by Crowntec’s unjust enrichment.
`
`COUNT VI — PATENT INFRINGEMENT
`
`F.
`
`
`40.
`
`Sportspower repeats and realleges the factual allegations contained in the foregoing
`
`paragraphs as if fully set forth at length herein.
`
`41.
`
`Crowntec has offered for sale, sold, made, imported, used, and/or distributed the
`
`Trampoline 6.62' Hexagon with Safety Enclosure (“Patent Infringing Product”). As seen in Exhibit
`
`3, a screenshot of the Wayfair.com website, the Patent Infringing Product is shown as available for
`
`sale or at least offered for sale. Exhibit 4 includes a screenshot from the walmart.com website
`
`showing the Patent Infringing Product as available for sale and having received a review.
`
`42.
`
`The Patent Infringing Product embodies the ’299 Patent, which include all of the
`
`components of the claimed hexagonal trampoline.
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`PLAINTIFF’S ORIGINAL COMPLAINT
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`
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`Page 12
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`

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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 13 of 17 PageID #: 13
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`43.
`
`The Patent Infringing Product is substantially similar to Sportspower’s unique
`
`product design.
`
`44.
`
`A side-by-side comparison between the Patent Infringing Product and the ’299
`
`Patent design reveals that Crowntec has infringed Sportspower’s patented design.
`
`’299 Patent Design
`
`Trampoline 6.62' Hexagon with Safety
`Enclosure
`
`
`
`45.
`
`An ordinary observer would find that the Patent Infringing Product is substantially
`
`similar to the ’299 Patent and that Crowntec infringes the ’299 Patent.
`
`46.
`
`Crowntec has infringed and/or continues to infringe the ’299 Patent by making,
`
`using, selling, and/or offering to sell in the United States the Patent Infringing Product, which
`
`embodies the design covered by the ’299 Patent.
`
`
`
`
`
`PLAINTIFF’S ORIGINAL COMPLAINT
`
`
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`Page 13
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`

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`Case 4:19-cv-00066-ALM Document 1 Filed 01/30/19 Page 14 of 17 PageID #: 14
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`V. PERMANENT INJUNCTION
`
`47.
`
`Sportspower repeats and realleges the factual allegations contained in the foregoing
`
`paragraphs as if fully set forth at length herein.
`
`
`
`48. On information and belief, Crowntec, unless enjoined, will continue to misrepresent
`
`to or mislead the public into believing that its products are sponsored by, approved by, affiliated
`
`with, associated with, or originated by Sportspower and infringe the Sportspower Marks by using
`
`the JUMP POWER mark or confusingly similar variations thereof to identify Crowntec’s competing
`
`products. Further, unless enjoined, Crowntec will continue to make, use, offer for sale, and sell the
`
`Patent Infringing Product that infringes the ’299 Patent. These actions violate the Patent Act, the
`
`Lanham Act,