Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1049326
`
`Filing date:
`
`04/15/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92065939
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`Sportspower Limited
`
`CLEMENT CHENG
`NEWHOPE LAW PC
`4522 KATELLA AVE SUITE 200
`LOS ALAMITOS, CA 90720
`UNITED STATES
`law@clemcheng.com
`714-825-0555
`
`Motion to Suspend for Civil Action
`
`Clement Cheng
`
`law@clemcheng.com
`
`/Clement Cheng/
`
`04/15/2020
`
`92065939 Status Report.pdf(193314 bytes )
`Exhibit A Answer To 2nd Amended Complaint.pdf(612716 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Cancellation No. 92065939
`
`Registration No. 5,152,625
`
`
`
`
`v.
`
`Petitioner,
`
`Registrant.
`
`
`In the matter of Trademark Registration No. 5,152,625
`
`International Class: 28
`
`Registrant: Li-Ju Hsiang
`
`Trademark: JP JUMP POWER
`
`Registered: February 28, 2017
`
`SPORTSPOWER LIMITED
`
`
`
`
`
`LI-JU HSIANG
`
`
`
`
`
`
`
`STATUS REPORT ON CIVIL ACTION
`The civil action in the United States District Court for the Eastern District of Texas
`Civil Action No. 4:19-CV-00066 is ongoing with no trial date set yet.
`The registrant just filed an answer to the second amended complaint (attached as
`Exhibit A herein). Petitioner added additional allegations of trademark infringement and
`unfair competition now conglomerated with the issues in this proceeding, so Petitioner
`respectfully requests that this proceeding continue to be suspended.
`
`DATED: April 15, 2020
`
`NEWHOPE LAW, PC
`
`/Clement Cheng/___________________
`Clement Cheng, Esq.
`4522 Katella Ave 200
`Los Alamitos, CA 90720
`
`
`
`
`
`
`1
`
`

`

`CERTIFICATE OF SERVICE
`
`
`
`The undersigned hereby certifies that a true and correct copy of the forgoing
`document has been emailed to: mailroom@mg-ip.com
`
`
`
`
`/Clement Cheng/___________________
`
`
`
`
`
`
`
`2
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 1 of 42 PageID #: 1472
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`
`
`
`SPORTSPOWER LTD.,
`
`Plaintiff/Counterclaim Defendant,
`
`
`
`
`
`v.
`
`CROWNTEC FITNESS MFG. LTD., et al.
`
`Defendants/Counterclaimants.
`
`
`
`
`
`
`
`
`
`
`
`Case No. 4:19-cv-66-ALM
`
`Jury Trial Demanded
`
`
`ANSWER TO SECOND AMENDED COMPLAINT,
`SEPARATE DEFENSES & COUNTERCLAIMS
`
`Defendants, Crowntec Fitness Mfg. Ltd. (“Crowntec”) and Li-Ju “Julie” Hsiang,
`
`answer the averments in Plaintiff’s Second Amended Complaint as follows:
`
`I. PARTIES
`
`1.
`Sportspower is a company formed under the laws of Hong Kong with a
`principal place of business in Hong Kong at: 20/F, Parkview Centre, 7 Lau Li Street
`Causeway Bay, Hong Kong. Samuel Chen is the CEO of Sportspower.
`
`ANSWER: Defendants lack sufficient knowledge or information to form a belief
`
`as to the truth of the allegations in this paragraph and, on that basis, deny them.
`
`2.
`Defendant Crowntec is a Taiwanese company with a principal place of
`business in Taiwan at: Crowntec Fitness Mfg. Ltd.; 8th Floor, No. 592, Tong An Street;
`Taoyuan City, Taiwan; Tel: +886 3261980/ 3261981. Hua-Lu Hsiang is the Managing
`Director of Crowntec, and Li-Ju Hsiang is the General Manager of Crowntec.
`
`ANSWER: Defendants admit the allegations in the first sentence of this paragraph
`
`and deny the allegations in the second sentence of this paragraph.
`
`3.
`Defendant Li-Ju Hsiang, is the General Manager of Crowntec and is the
`actual owner of record for the trademark JP JUMP POWER (U.S. Reg. Number
`
`
`
`
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 2 of 42 PageID #: 1473
`
`5,152,625), Li-Ju Hsiang is a citizen of Taiwan, residing at: 9F., NO. 592, Tong’an St.,
`Taoyuan Dist., Taoyuan City, 330 Taiwan.
`
`ANSWER: Defendants deny that Li-Ju Hsiang is the General Manager of
`
`Crowntec. Defendants admit the remaining allegations in this paragraph.
`
`II. JURISDICTION AND VENUE
`
`4.
`This is an action for patent infringement arising under the Patent Act, 35
`U.S.C. § 1 et seq., and for trademark infringement and unfair competition under the
`Lanham Act, 15 U.S.C. §§ 1114, 1125, as well as trademark infringement, unfair
`competition, and unjust enrichment under Texas law.
`
`ANSWER: Defendants admit that this paragraph accurately summarizes the
`
`subject matter of Sportspower’s Complaint but deny that they have infringed any valid
`
`patent or trademark, engaged in unfair competition, or been unjustly enriched.
`
`5.
`This Court has original jurisdiction over the subject matter of the Patent Act
`and Lanham Act claims pursuant to 28 U.S.C. §§ 1331 and 1338(a). This Court has
`subject-matter jurisdiction over the Texas state-law claims in this action under 28 U.S.C.
`§ 1367 because these claims arise out of the same transactions and occurrences giving
`rise to the federal Lanham Act claims.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants admit that this Court has
`
`subject-matter jurisdiction over the causes of action Sportspower purports to state in its
`
`Complaint but deny that Sportspower is entitled to any relief on any of its causes of
`
`action.
`
`6.
`The Court has personal jurisdiction over Crowntec because the acts that are
`the subject of Sportspower’s claims, including trademark infringement and patent
`infringement, were committed by Crowntec, in part, in the State of Texas in this Judicial
`District. Crowntec conducts business through retailers, such as Dick’s Sporting Goods,
`Walmart, and Wayfair, who offer or offered for sale the Accused Products through their
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 2
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 3 of 42 PageID #: 1474
`
`websites. See Exhibits 3-6.1 These websites make/made use of the infringing JUMP
`POWER trademark as well as in the case of Walmart and Wayfair, offered for sale and
`sold the Patent Infringing Product, defined below. The Dick’s Sporting Goods site2 and
`on information and belief, the Walmart and Wayfair sites, are active websites allowing
`consumers to place orders directly through the sites.3 Texas residents residing in this
`Judicial District are/were able to purchase products directly through these websites.
`Therefore, Crowntec is doing business in this Judicial District and committing acts of
`infringement, unfair competition, and other wrongs in this Judicial District. As a
`consequence, Crowntec has purposefully availed itself of the laws of the State of Texas,
`and therefore, exercising personal jurisdiction over it is fair and proper. Crowntec has
`appeared in this action and is not challenging personal jurisdiction.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants admit that Crowntec is subject
`
`to the personal jurisdiction of this Court with respect to the causes of action Sportspower
`
`purports to state in its Complaint against Crowntec but deny that Crowntec has
`
`committed trademark infringement, patent infringement, or any other acts entitling
`
`Sportspower to relief on its asserted causes of action. Defendants admit the allegations in
`
`the second and last sentences of this paragraph. Defendants lack sufficient knowledge or
`
`information to form a belief as to the truth of the allegations in the fourth, fifth, and sixth
`
`sentences of this paragraph and footnotes 2 and 3 and, on that basis, deny them.
`
`
`1 The previously filed exhibits are hereby incorporated by reference.
`
`2 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 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.
`
`3 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.
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 3
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 4 of 42 PageID #: 1475
`
`Defendants further state that Exhibits 3–6 speak for themselves and that Defendants lack
`
`sufficient knowledge or information to form a belief as to the truth or accuracy of
`
`Sportspower’s description of them. Defendants deny all remaining allegations in this
`
`paragraph.
`
`7.
`The Court has personal jurisdiction over Li-Ju Hsiang because, as an officer
`of Crowntec, she most likely applied for the registration of the JP JUMP POWER
`trademark on behalf of Crowntec, but since she did so under her own name, she is a
`necessary party. She also registered
`the
`infringing mark with knowledge of
`Sportspower’s rights to that mark and, upon information and belief, participated in the
`acts of Crowntec specifically aimed at the forum state to trade off the goodwill associated
`with Sportspower’s use of the JUMP POWER trademark. She has appeared in this action
`and is not challenging personal jurisdiction.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants admit the allegations in the last
`
`sentence of this paragraph and deny the remaining allegations in this paragraph.
`
`8.
`Under 28 U.S.C. § 1391(b)(2), venue is proper in this judicial district
`because a substantial part of the events giving rise to the claims of this action occurred in
`this Judicial District. Venue is also proper under 28 U.S.C. § 1391(c)(3) because none of
`the Defendants are residents of the U.S. As set forth in more detail below and
`incorporated herein, Crowntec has sold, offered for sale, and marketed the Accused
`Products to citizens of this State and in particular, citizens of this Judicial District through
`brick and mortar retail stores as well as active websites through which the Accused
`Products are offered for sale. Also, under 28 U.S.C. § 1391(d), venue is proper in this
`Judicial District because an alien may be sued in any district.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants admit that venue is proper in
`
`this District and deny the remaining allegations in this paragraph.
`
`
`
`
`
`
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 4
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 5 of 42 PageID #: 1476
`
`III. FACTUAL BACKGROUND
`
`A. Sportspower’s business and intellectual property ownership.
`
`9.
`Sportspower has sold backyard play equipment, including trampolines,
`the SPORTSPOWER®
`trademark since at
`least as early as 2005.
`under
`SPORTSPOWER® is a well-known brand of trampolines that is sold at major retailers in
`the United States such as Walmart, Sam’s Club, Academy, and Amazon.com.
`SPORTSPOWER® trampolines were also previously sold at major retailers such as Sears
`K-Mart, Toys “R” Us, The Sports Authority, and Sports Chalet. SPORTSPOWER®--
`branded trampolines are further sold at trampoline specialty stores such as Trampoline
`USA, which has both online and physical retail sales. In the United States, Sportspower
`primarily sells SPORTSPOWER®-branded backyard play equipment such as swing sets,
`inflatable play structures, and trampolines. Sportspower also sells SPORTSPOWER®-
`branded game tables including table tennis and billiards. Sportspower further sells other
`types of play equipment such as bubble soccer, water spray mats, and tents.
`
`ANSWER: Defendants lack sufficient knowledge or information to form a belief
`
`as to the truth of the allegations in this paragraph and, on that basis, deny them.
`
`10.
`Since approximately 2006, Sportspower has used the name JUMP POWER
`HARDWARE LTD., and JUMP POWER, to refer to the source of its trampolines and
`other products when selling to its retail customers in the U.S. such as Wal-Mart.
`Sportspower had a functioning administrative office stationed in the Crowntec factory
`building in Dongguan China and the name that Sportspower used for the in-factory office
`was JUMP POWER. Major U.S. retail customers would visit Sportspower’s JUMP
`POWER administrative office for inspection of products or reviewing of samples in the
`Crowntec factory building. Thus, both Crowntec and U.S. retail customers used JUMP
`POWER and SPORTSPOWER synonymously.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny that Crowntec and U.S.
`
`retail customers used JUMP POWER and SPORTSPOWER synonymously. Defendants
`
`admit that Mr. Hsiang provided office space at the Crowntec-operated Dongguan factory
`
`for Sportspower employees and representatives to use. Defendants lack sufficient
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 5
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 6 of 42 PageID #: 1477
`
`knowledge or information to form a belief as to the truth of the remaining allegations in
`
`this paragraph and, on that basis, deny them.
`
`11.
`Sportspower owns a variety of trademark registrations including U.S.
`Trademark Registration No. 3,689,452 for SPORTSPOWER in Class 28, which was
`registered on September 29, 2009, and is now incontestable, in connection with Sporting
`goods, namely, trampolines, game tables and weightlifting machines. See Exhibit 2.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants state that U.S. Trademark
`
`Registration No. 3,689,452 and Exhibit 2 speak for themselves. Defendants lack
`
`sufficient knowledge or information to form a belief as to the truth of the remaining
`
`allegations in this paragraph and, on that basis, deny them.
`
`12.
`Sportspower also owns U.S. Trademark Registration No. 5,151,272 for
`SPORTSPOWER in Class 35, which was registered February 28, 2017, in connection
`with “[w]holesale distributorships featuring sports equipment and sports equipment parts;
`Wholesale ordering services in the field of sports equipment and sports equipment parts;
`Wholesale services by direct solicitation by sales agents in the field of sports equipment
`and sports equipment parts; Wholesale store services featuring sports equipment and
`sports equipment parts; On-line wholesale and retail store services featuring sports
`equipment and sports equipment parts.”
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants state that U.S. Trademark
`
`Registration No. 5,151,272 speaks for itself. Defendants lack sufficient knowledge or
`
`information to form a belief as to the truth of the remaining allegations in this paragraph
`
`and, on that basis, deny them.
`
`13.
`SPORTSPOWER® was used as a trade name and service mark for sports
`equipment trade agency services since as early as 1996. Sportspower later promoted its
`SPORTSPOWER® and derivative trademarks in the United States for use on sports
`equipment since at least as early as 2005. Over the years, Sportspower’s marks have
`become well known worldwide. As a result, Sportspower has attained valuable rights and
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 6
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 7 of 42 PageID #: 1478
`
`goodwill in the mark SPORTSPOWER® and its derivative marks. As discussed below,
`these rights predate Crowntec’s rights.
`
`ANSWER: Defendants lack sufficient knowledge or information to form a belief
`
`as to the truth of the allegations in this paragraph and, on that basis, deny them.
`
`14.
`Sportspower also owns U.S. Trademark Registration No. 5,842,153 for
`STEELFLEX PRO® and U.S. Trademark Registration No. 4667641 for STLFLX® in
`Class 28 for trampolines. Sportspower also has common law trademark rights to the mark
`STEEL FLEX as it has used that mark since at least as early as 2012. Together, these
`mark [sic] form a family of “Steel Flex” trademarks.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny that Sportspower owns a
`
`U.S. trademark registration for STLFLX® and further state that U.S. Trademark
`
`Registration Nos. 5,842,153 and 4,667,641 speak for themselves. Defendants lack
`
`sufficient knowledge or information to form a belief as to the truth of the remaining
`
`allegations in this paragraph and, on that basis, deny them.
`
`15.
`Sportspower also owns U.S. Trademark Registration No. 5,842,153 for
`HIGH JUMP in Class 28 for trampolines.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny that Sportspower owns
`
`U.S. Trademark Registration No. 5,842,153 for HIGH JUMP in Class 28 for trampolines.
`
`16.
`Sportspower also owns U.S. Trademark Registration No. 3,448,852 for MY
`FIRST TRAMPOLINE and U.S. Trademark Registration No. 3,996,849 for the MY 1ST
`TRAMPOLINE design mark in Class 28 for trampolines.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants state that U.S. Trademark
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 7
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 8 of 42 PageID #: 1479
`
`Registration Nos. 3,448,852 and 3,996,849 speak for themselves. Defendants deny all
`
`remaining allegations in this paragraph.
`
`17.
`In addition to the SPORTSPOWER® registrations, Sportspower owns
`common law rights to its JUMP POWER trademark in connection with trampoline
`products because it has used the words “JUMP POWER” to identify the source of its
`goods.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny the allegations in this
`
`paragraph.
`
`18. According to Walmart’s records, Sportspower first used the JUMP POWER
`name at Walmart around 2006. Walmart considers
`JUMP POWER and
`SPORTSPOWER® to be basically synonymous.
`
`ANSWER: Defendants deny the allegations in this paragraph.
`
`19. U.S. retail customers referred to JUMP POWER and SPORTSPOWER
`synonymously. Being the OEM supplier for Sportspower, Crowntec knew of the trade
`name usage yet adopted “Jump Power” anyway.
`
`ANSWER: Defendants lack sufficient knowledge or information to form a belief
`
`as to the truth of the allegations in the first sentence of this paragraph and, on that basis,
`
`deny them. Defendants deny the remaining allegations in this paragraph.
`
`20.
`Sportspower is also the exclusive licensee of U.S. Patent No. D653,299 (the
`’299 Patent). The patent is directed to an ornamental design for a hexagonal trampoline.
`As shown in detail below, in addition to infringing Sportspower’s Marks, Crowntec has
`infringed the ’299 Patent.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants state that U.S. Patent
`
`No. D653,299 speaks for itself. Defendants lack sufficient knowledge or information to
`
`form a belief as to the truth of the allegation that Sportspower is the exclusive licensee of
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 8
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 9 of 42 PageID #: 1480
`
`the ’299 Patent and, on that basis, deny it. Defendants deny the remaining allegations in
`
`this paragraph.
`
`B. Defendants’ infringing activities and unfair competition.
`
`21. Crowntec advertised its own brand of trampolines during the time that it
`was an OEM manufacturer for Sportspower, but changed to JUMP POWER after it
`stopped making OEM product for Sportspower. Now, Crowntec manufactures and sells
`trampolines in competition with Sportspower using the mark JUMP POWER that is
`confusingly similar to Sportspower’s JUMP POWER mark—a mark which has long been
`associated with Sportspower. As seen
`in Exhibit 5,
`the screenshot of
`the
`dickssportinggoods.com website shows that a Jump Power 14’ Round Trampoline is
`being sold for $199.98 (marked down from $299.99). The advertisement prominently
`features the JUMP POWER mark. Exhibit 6 shows that the packaging for the 14’
`trampoline also features the JUMP POWER mark and further contains an image of the
`Patent Infringing Product.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny the allegations in this
`
`paragraph. Defendants further state that Exhibits 5–6 speak for themselves.
`
`The JUMP POWER mark used by Crowntec—even with the “JP” logo—is
`22.
`so similar in sight, sound, and meaning to the JUMP POWER mark used by Sportspower,
`that there is a likelihood of confusion.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny the allegations in this
`
`paragraph.
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 9
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 10 of 42 PageID #: 1481
`
`23. Additionally, because of the long association in the marketplace caused by
`Sportspower’s use of the two trademarks in relation to each other for over a decade, there
`is a likelihood of confusion between SPORTSPOWER® on the one hand and Crowntec’s
`use of JUMP Power on the other.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny the allegations in this
`
`paragraph.
`
`24. Use of JUMP POWER by Crowntec has led to actual confusion with
`Sportspower. By way of example, Nicholas Taylor, a manager at Academy,
`headquartered in Katy, Texas, was actually confused when he blamed Sportspower for
`Crowntec missing the Amazon Standard Identification Number (ASIN) on a “JUMP
`POWER” product that was being sold by Crowntec. An email from Nicholas Taylor to
`Sportspower shows that there was actual confusion in Texas when he thought that
`Sportspower was affiliated with or related to the JUMP POWER product.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny that there is actual
`
`trademark confusion and deny the remaining allegations in this paragraph.
`
`25. Another example of actual confusion is when Menards’ buyer blamed
`Sportspower for trademark infringement of the Tencate Permatron name regarding
`Crowntec’s JUMP POWER product. A SPORTSPOWER®-branded product was
`replaced by Crowntec’s “JUMP POWER” product, but the Menards’ buyer thought that
`the two companies were related or affiliated and working together. Thus, the buyer had
`difficulty believing Sportspower’s explanation that it was not the SPORTSPOWER®-
`branded product that had a trademark problem with TenCate Permatron
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants deny that there is actual
`
`trademark confusion and deny the remaining allegations in this paragraph.
`
`Li-Ju Hsiang knew about Sportspower’s use of the JUMP POWER name
`26.
`which was well known to Sportspower’s customers because Sportspower had been using
`the JUMP POWER name since 2006. Due to the large volume of OEM production,
`Sportspower had a functioning administrative office stationed in the Crowntec factory
`
`ANSWER TO SECOND AMENDED COMPLAINT, SEPARATE DEFENSES & COUNTERCLAIMS
`
`
`Page 10
`
`

`

`Case 4:19-cv-00066-ALM Document 52 Filed 03/31/20 Page 11 of 42 PageID #: 1482
`
`building in DongGuan China and the name that Sportspower used for the in-factory
`office was JUMP POWER. Major US retail customers would visit Sportspower’s JUMP
`POWER administrative office for inspection of products or reviewing of samples in the
`Crowntec factory building.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants admit that Mr. Hsiang provided
`
`office space at the Crowntec-operated Dongguan factory for Sportspower employees and
`
`representatives to use. Defendants deny the remaining allegations in this paragraph.
`
`27.
`In spite of the actual knowledge that Sportspower owned and used the
`trademark JUMP POWER, Crowntec’s General Manager, Li-Ju Hsiang registered a
`stylized “JUMP POWER” design mark with the literal element of the mark consisting of
`“JP JUMP POWER.” Although this registration was likely applied for on behalf of
`Crowntec, it was registered in the name of Li-Ju Hsiang and there is no record of its
`assignment filed with the U.S.P.T.O.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
`
`required. To the extent a response is required, Defendants admit that Li-Ju Hsiang is the
`
`registrant of U.S. Trademark Registration No. 5,152,625 for the JP JUMP POWER
`
`design mark and that there is no record of its assignment filed with the U.S. Patent and
`
`Trademark Office. Defendants state that the JP JUMP POWER® mark and U.S.
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`Trademark Registration No. 5,152,625 speak for themselves. Defendants deny the
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`remaining allegations in this paragraph.
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`28.
`Li-Ju Hsiang, registered the JP JUMP POWER logo as U.S. Trademark
`Registration No. 5,152,625 on February 28, 2017, which lists “[s]wings; Modular play
`centers consisting of panels, decks, platforms, handrails, slides, and steps all sold
`separately or in selected combinations; Seesaws; parlor games; Horizontal bars; Manually
`operated exercise equipment for physical fitness purposes; trampolines; Exercise
`treadmills; Bags specially adapted for sports equipment; Play balls.”
`
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`ANSWER: To the extent this paragraph states legal conclusions, no response is
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`required. To the extent a response is required, Defendants admit that Li-Ju Hsiang is the
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`registrant of U.S. Trademark Registration No. 5,152,625 and state that U.S. Trademark
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`Registration No. 5,152,625 speaks for itself.
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`29. While the literal element of the mark registered by Li-Ju Hsiang is “JP
`JUMP POWER,” the mark is a design mark with the overall impression of being for the
`words “Jump Power” below a JP logo:
`
`
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`ANSWER: To the extent this paragraph states legal conclusions, no response is
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`required. To the extent a response is required, Defendants state that the JP JUMP
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`POWER® mark and U.S. Trademark Registration No. 5,152,625 speak for themselves.
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`Defendants deny the remaining allegations in this paragraph.
`
`30.
`Sportspower used the JUMPPOWER trademark as a trade [sic] long before
`Crowntec’s or Li-Ju Hsiang’s alleged use of the JP JUMP POWER mark in commerce.
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`ANSWER: To the extent this paragraph states legal conclusions, no response is
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`required. To the extent a response is required, Defendants deny the allegations in this
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`paragraph.
`
`31.
`Sportspower has also promoted its SPORTSPOWER branded products in
`the United States since at least as early as 1996 and identified the source of its goods
`using JUMP POWER since as early as 2006. Sportspower’s marks are also well-known
`worldwide. As a result, Sportspower has attained rights to the JUMP POSWER [sic]
`mark that are superior to Crowntec’s or Li-Ju Hsiang’s use and registration.
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`32. ANSWER: To the extent this paragraph states legal conclusions, no
`response is required. To the extent a response is required, Defendants deny the
`allegations in this paragraph The marks are similar, have similar customers and similar
`goods, which raise a likelihood of confusion. As a result, the continued existence of U.S.
`Reg. Number 5,152,625 is causing harm to Sportspower.
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`ANSWER: To the extent this paragraph states legal conclusions, no response is
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`required. To the extent a response is required, Defendants deny the allegations in this
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`paragraph.
`
`33.
`In her application for registration, Li-Ju Hsiang declared under penalty of
`perjury that “the applicant is the owner of the trademark/service mark sought to be
`registered; the applicant is using the mark in commerce on or in connection with the
`goods/services in the application.”
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
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`required. To the extent a response is required, Defendants state that the application for
`
`U.S. Trademark Registration No. 5,152,625 speaks for itself.
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`34. On information and belief, Li-Ju Hsiang has never used the trademark on
`any products of her own.
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`ANSWER: To the extent this paragraph states legal conclusions, no response is
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`required. To the extent a response is required, Defendants lack sufficient information to
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`form a belief as to the truth of the allegations in this paragraph because “the trademark”
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`referenced in this paragraph is not specified and, on that basis, deny them.
`
`35.
`Sportspower filed a petition to cancel U.S. Trademark Registration
`No. 5,152,625 with the United States Trademark Trial and Appeal Board on April 17,
`2017. This cancellation proceeding is currently pending as Cancellation Number
`92065939 and is based on priority of use, actual confusion, and likelihood of confusion,
`but has been suspended pending the final determination of this suit.
`
`ANSWER: Defendants admit the allegations in the first sentence of this
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`paragraph. Defendants admit that the cancellation proceeding is currently pending as
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`Cancellation Number 92065939 and has been suspended pending the final determination
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`of this suit, and state that the record in that proceeding speaks for itself. Defendants
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`expressly deny any remaining allegations in this paragraph
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`36. Crowntec also imports trampolines into the U.S. bearing the STEEL FLEX
`mark and has imported over 1200 trampolines described as “12 FOOT TRAMPOLINE
`WITH STEEL FLEX ENCLOSURE.”
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
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`required. To the extent a response is required, Defendants deny the allegations in this
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`paragraph.
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`37. According to customs importation documents, Crowntec, through one of its
`manufacturers, shipped 314 units on March 12, 2018; 323 units on March 29, 2018; 315
`units on June 16, 2018; and 314 units on September 5, 2018. All of these shipments were
`imported from Shanghai, China to ports in either Los Angeles, California, or Savana
`[sic], Georgia.
`
`ANSWER: Defendants state that the customs importation documents referenced
`
`in this paragraph speak for themselves.
`
`38.
`Those shipments were imported to XDP Recreation, LLC, a Georgia
`company that sells the trampolines with the infringing STEELFLEX mark throughout the
`U.S. via Walmart, Amazon, and other retailers.
`
`ANSWER: To the extent this paragraph states legal conclusions, no response is
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`required. To the extent a response is required, Defendants state that the customs
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`importation documents referenced in paragraph 37 speak for themselves. Defendants lack
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`sufficient information to form a belief as to the truth of the allegations in this paragraph
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`regarding XDP Recreation, LLC and, on that basis, deny them. Defendants deny the
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`remaining allegations in this paragraph, specifically denying that they have infringed any
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`valid, enforceable trademark rights of Sportspower.
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