wenger fuzhou tmk complaint

Transcription

Case 2:15-cv-01098 Document 1 Filed 06/10/15 Page 1 of 29
1 GARY R. GOODHEART, ESQ. (NV Bar #1203)
KARL L. NIELSON, ESQ. (NV Bar #5082)
2 FENNEMORE CRAIG, P.C.
300 S. Fourth Street, Suite 1400
3 Las Vegas, NV 89101
4 Telephone: (702) 692-8000
Facsimile: (702) 692-8099
5 Email: ggoodheart@fclaw.com
knielson@fclaw.com
6
RICHARD H. BROWN, ESQ.
7 (pro hac vice to be submitted)
8 DAVID I. GREENBAUM, ESQ.
(pro hac vice to be submitted)
9 DAY PITNEY LLP
7 Times Square, 20th Floor
10 New York, NY 10036
Telephone: (212) 297-5854
11
Facsimile: (973) 206-6129
12 Email: rbrown@daypitney.com
dgreenbaum@daypitney.com
13
Counsel for Plaintiff
14
UNITED STATES DISTRICT COURT
15
DISTRICT OF NEVADA
16
WENGER S.A,
17
Plaintiff
18
19
20
21
22
23
Case No.
v.
FUZHOU HUNTER PRODUCT IMPORT
AND EXPORT CO., LTD.; SWISSDIGITAL
USA CO., LTD.; KRUMMHOLZ
INTERNATIONAL INC.; SWISSGEAR
SARL; and ZHIJIAN “HUNTER” LI,
JURY TRIAL DEMANDED
Defendants.
24
25
26
COMPLAINT
Plaintiff Wenger S.A. (hereinafter “Plaintiff” or “Wenger”), a Switzerland société
27 anonyme with headquarters at Route de Bâle 63, Delémont, Switzerland, CH-2800, brings this
28 Complaint against: Fuzhou Hunter Product Import and Export Co., Ltd.; Swissdigital USA Co.,
1
1 Ltd. (formerly known as Swissgear USA Co., Ltd.); Krummholz International Inc. (formerly
2 known as Swissgear North America Co., Ltd); and Swissgear Sarl (collectively, the “Fuzhou
3 Hunter Entities”), and Mr. Zhijian (Hunter) Li, individually (hereinafter “Hunter Li”). The
4 Fuzhou Hunter Entities and Hunter Li are collectively referred to herein as the “Defendants.”
5 As set forth below, Defendants are infringing Wenger’s longstanding intellectual property
6 rights, and are also engaged in an improper effort to commandeer certain of Wenger’s
7 intellectual property rights.
THE PARTIES
8
9
1.
Plaintiff Wenger S.A. is a Switzerland société anonyme, with its principal place
10 of business at Route de Bâle 63, Delémont, Switzerland, CH-2800.
11
2.
On information and belief, Defendant Fuzhou Hunter Product Import and Export
12 Co. Ltd. ( “Fuzhou Hunter”) is a company organized and existing under the laws of People’s
13 Republic of China, with its principal place of business at 24/F Suite A Huankaifugui Office
14 Building No 36, Dongda Road, Fuzhou, Fujian, 350001 China. On information and belief,
15 Hunter Li has been and continues to be a legal representative and director of Fuzhou Hunter.
16
3.
On information and belief, Defendant Swissdigital USA Co., Ltd. (hereinafter
17 “Swissdigital”) is a company organized and existing under the laws of Delaware with its
18 principal place of business located at 7 Cortina Court, Richmond Hill, Ontario, Canada L4B
19 3G8. Upon further information and belief, Swissdigital USA was incorporated under the name
20 Swissgear USA Co., Ltd., until October 2014, when it changed its name to the current name.
21 On information and belief, Hunter Li is the president of Swissdigital.
22
4.
On information and belief, Defendant Krummholz International, Inc. (hereinafter
23 “Krummholz”) is a company organized and existing under the laws of Canada, with its principal
24 place of business at 7 Cortina Court, Richmond Hill, Ontario, Canada L4B 3G8. Upon further
25 information and belief, Krummholz was at one point named Swissgear North America Co., Ltd.
26 On information and belief, Hunter Li is the president and a director of Krummholz.
27
5.
On information and belief, Defendant Swissgear Sarl is a limited liability
28 company organized and existing under the laws of Switzerland with its principal place of
2
1 business located at Haldenstrasse 5, 6340 Baar, Switzerland. On information and belief, Hunter
2 Li is the President of the Management of Swissgear Sarl. Moreover, Swissgear (Group) S.A., a
3 company headquartered in the British Virgin Islands, is registered as a shareholder of Swissgear
4 Sarl.
5
6.
On information and belief, Defendant Hunter Li is a citizen of the People’s
6 Republic of China and has a mailing address of 43 Gorden Rowe Crescent, Richmond Hill,
7 Ontario L4C 8S1, Canada.
8
7.
On information and belief, the Fuzhou Hunter Entities are affiliated with each
9 other, in part because Hunter Li is either a director, principal or president of each of the entities,
10 and he directs the operations of those entities, including the infringing conduct discussed below.
11 In addition, some companies are directly linked to each other since some entities are founding
12 members or shareholders of other Fuzhou Hunter companies. Upon information and belief, the
13 misconduct of the Fuzhou Hunter Entities is being directed and supervised by Hunter Li, who
14 controls and has a financial interest in the Fuzhou Hunter Entities.
JURISDICTION AND VENUE
15
16
8.
This is an action for trademark counterfeiting, trademark infringement, trademark
17 dilution, unfair competition, false advertising, false designation of origin, and cancellation of a
18 registered trademark under the trademark laws of the United States (the “Lanham Act”), and
19 copyright infringement under the United States Copyright Act of 1976 (the “Copyright Act”).
20 This Court has original jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a),
21 and pursuant to 15 U.S.C. §§1114, 1116, 1117, 1119, 1120, 1121(a), and 1125 of the Lanham
22 Act, and 17 U.S.C. §101 et seq. and §501 et seq. of the Copyright Act. This Court has
23 supplemental jurisdiction over all other claims asserted herein under 28 U.S.C. § 1367(a).
24
9.
Defendants are subject to the personal jurisdiction of this Court because the
25 Defendants conducted infringing acts of advertising, displaying, and offering their products for
26 sale in the State of Nevada, within this District, giving rise to these causes of action.
27
10.
In particular, defendants Swissdigital and Krummholz have stated in a separate
28 civil action filed in the Western District of New York (Krummholz International, Inc. and
3
1 Swissdigital USA Co, Ltd. v. Wenger, S.A., Docket No. 15-0086, filed Jan. 29, 2015) (“the New
2 York Action”) that they have attended previous trade shows in Las Vegas, Nevada, where they
3 engaged in conduct that Wenger asserts constitutes infringement of its trademark and copyright
4 rights.
5
11.
In addition, defendants Swissdigital and Krummholz assert in the New York
6 Action that their “related companies” have engaged in similar conduct in Las Vegas, Nevada.
7 Upon information and belief, those “related companies” include Fuzhou Hunter and Swissgear
8 Sarl, and possibly others.
9
12.
Upon information and belief, some of the Fuzhou Hunter Entities attended the
10 TGA Trade Show in March 2014 (in Phoenix, Arizona), the Las Vegas Licensing Expo 2014
11 from June 17-19, 2014, and the 2015 International Consumer Electronics Trade Show in Las
12 Vegas, Nevada from January 6-9, 2015.
13
13.
Fuzhou Hunter is listed as an exhibitor for the Licensing Expo scheduled for June
14 9-11, 2015 in Las Vegas, Nevada.
15
14.
Upon information and belief, Hunter Li, in his capacity as director, principal
16 and/or president of each of the Fuzhou Hunter Entities, has attended trade shows in Las Vegas,
17 Nevada, and participated in and directed the conduct that Wenger asserts constitutes
18 infringement of its rights.
19
15.
Venue of this action is proper in the District of Nevada under 28 U.S.C. 1391(b)
20 and (c) because the Defendants have conducted business in Nevada, have committed acts of
21 infringement in Nevada, and are subject to personal jurisdiction in Nevada.
FACTS COMMON TO ALL COUNTS
22
23 A.
Plaintiff Wenger and its Intellectual Property Rights
24
16.
Wenger has been a premier global provider of many goods including, but not
25 limited to, knives, watches and other products.
Founded in 1908, Wenger has a global
26 reputation as the maker of SWISS ARMY brand knives and other high quality products. More
27 recently, Wenger, either directly or through its authorized licensees, has marketed and sold
28 high-quality goods, including watches, footwear, travel gear, backpacks, luggage, and computer
4
1 cases, in the United States.
2
17.
At least as early as 1991, Plaintiff adopted the distinctive logo of a cross on a
3 square with rounded corners, outlined by another square with rounded corners (hereinafter, the
4 “Wenger Emblem”), shown below:
5
6
7
8
9
18.
The Wenger Emblem is registered in the United States Patent and Trademark
10 Office under U.S. Trademark Reg. Nos. 4,024,369; 4,109,108; 3,820,133; 4,301,579; 3,291,272;
11 3,291,271; 3,291,266; and 3,405,840 (collectively, the “Wenger Emblem Registrations”),
12 covering a variety of goods across a number of International Classes, including Classes 8, 9, 11,
13 14, 16, 18, 20, 22, 25, and 28. Copies of the registration certificates for certain Wenger Emblem
14 Registrations are appended to this Complaint as Exhibit A.
15
19.
Plaintiff or its authorized licensees have been continuously using Wenger
16 Emblem in the U.S. in connection with goods in International Classes 8 and 14 since at least as
17 early as 1993; in connection with goods in International Classes 9, 11, 16, 18, 20 and 22; in
18 connection with goods in International Class 25 since at least as early as 2005; and in
19 connection with goods in International Class 28 since at least as early as 2006. A table listing
20 some of the registrations for the Wenger Emblem is below.
21
22
23
24
25
26
27
28
Mark
Reg. No.
3,820,133
Goods
Cutlery, in particular pocket knives, multi-purpose pocket
knives, multi-purpose knives, folding knives, and other
products, in Class 8; Camera cases; computer carrying cases,
mobile phone and cell phone cases and other products, in
Class 9; Appliances, namely, battery-operated lights for
camping; flashlight pointers, in Class 11; Watches of Swiss
origin, in Class 14; Leather passport holders and other
products, in Class 16; All-purpose carrying dry bags, luggage,
backpacks, daypacks, and other products, in Class 18;
Sleeping and nap mats, sleeping bags, and other products , in
Class 20; and Tents, and other products, in Class 22.
5
4,301,579
1
2
Clothing for men, women and children, namely, rainwear,
belts, socks, hosiery; footwear, and other products, in Class
25.
3
4
5
4,024,369
6
7
8
9
10
4,109,108
11
Cutlery, in particular pocket knives, multi-purpose pocket
knives, multi-purpose knives, folding knives, and other
products, in Class 8; Camera cases; computer carrying cases,
mobile phone and cell phone cases and other products, in
Class 9; Appliances, namely, battery-operated lights for
camping; flashlight pointers, in Class 11; Watches of Swiss
origin, in Class 14; Leather passport holders and other
products, in Class 16; All-purpose carrying dry bags, luggage,
Sleeping and nap mats, sleeping bags, and other products , in
Class 20; and Tents, and other products, in Class 22.
Footwear, in Class 25.
12
13
14
15
3,291,271
Camera cases, in Class 9; Binders, card files, binders and file
pockets, folios, in Class 16; and waistpacks, shopping bags,
bags worn on the body, business cases, shoe bags for travel,
travel bags, travel pouches, all-purpose personal care bags,
and other products, in Class 18.
3,405,840
Computer carrying cases, specialty holsters for carrying
personal digital assistants, in Class 9; Leather passport
holders, in Class 16; All-purpose dry bags, luggage,
Sleeping and nap mats, sleeping bags, and other products, in
Class 20; and tents, and other products, in Class 22
16
17
18
19
20
21
22
23
24
20.
At least as early as 2003, Wenger adopted the mark SWISSGEAR for use with
25 the travel gear, business gear, outdoor gear, and recreational and other products in the U.S.
26 Wenger has registrations for SWISSGEAR in the United States Patent and Trademark Office
27 (Reg. Nos. 3,769,824, 4,230,244, 3,291,272, and 3,291,266) (collectively, the “SWISSGEAR
28 Registrations”), covering a variety of goods across a number of International Classes, including
6
1 Classes 9, 11, 16, 18, 20, 22, 25, and 28.
2
21.
Copies of the registration certificates for certain of the SWISSGEAR
3 Registrations are appended to this Complaint as Exhibit B.
4
22.
Plaintiff or its authorized licensees have been continuously using SWISSGEAR
5 in the U.S. in connection with goods in International Class 9 since at least as early as 2004; in
6 connection with goods in International Class 11 since at least as early as 2003; in connection
7 with goods in International Class 16 since at least as early as 2006; in connection with goods in
8 International Class 18 since at least as early as 2003; in connection with goods in International
9 Class 20 since at least as early as 2003; in connection with goods in International Class 22 since
10 at least as early as 2003; in connection with goods in International Class 25 since at least as
11 early as 2011; and in connection with goods in International Class 28 since at least as early as
12 2003. A table showing some of the SWISSGEAR registrations (including some with the
13 Wenger Emblem) is below.
14
Mark
Reg. No.
Goods
15
16
SWISSGEAR
3,769,824
17
18
SWISSGEAR
4,230,244
19
20
3,291,272
21
22
23
24
25
26
27
28
3,291,266
Computer carrying cases, camera cases, and other products,
in Class 9; leather passport holders, in Class 16; All-purpose
dry bags, luggage, backpacks, daypacks, and other products,
in Class 18; Sleeping and nap mats, sleeping bags, and other
products, in Class 20; Tents, and other products, in Class 22.
Clothing, namely, footwear, shoes, boots, hats, socks, hosiery,
headwear, in Class 25.
in Class 9; Appliances, namely, battery operated lights for
camping, in Class 11; leather passport holders, in Class 16;
All-purpose dry bags, luggage, backpacks, daypacks, and
other products, in Class 18; Sleeping and nap mats, sleeping
bags, and other products, in Class 20; Tents, and other
products, in Class 22; Clothing, namely, security money belts,
in Class 25; and Air mattresses for recreational and home use,
in Class 9; Appliances, namely, battery operated lights for
camping, in Class 11; leather passport holders, in Class 16;
All-purpose dry bags, luggage, backpacks, daypacks, and
other products, in Class 18; Sleeping and nap mats, sleeping
bags, and other products, in Class 20; Tents, and other
products, in Class 22; Clothing, namely, security money belts,
in Class 25; and Air mattresses for recreational and home use,
7
1
2
23.
Plaintiff is the owner of U.S. Copyright Registration No. VA-1935912 covering a
3 design incorporating Wenger Emblem, seen below (hereinafter, the “Wenger Logo Design”):
4
5
6
7
8
9
10
24.
A copy of the registration certificate for the Wenger Logo Design is appended to
11 this Complaint as Exhibit C.
12
25.
Plaintiff is the owner of all right, title and interest in and to the Wenger Logo
13 Design.
14
26.
Plaintiff also owns common law trademark rights in the Wenger Logo Design.
15
27.
In 2004, Plaintiff, through its authorized licensee, commenced use of the Wenger
16 Logo Design in connection with goods sold in U.S. commerce, thereby conferring common-law
17 trademark rights in the Wenger Logo Design to Plaintiff. Plaintiff’s licensee has used the
18 Wenger Logo Design in commerce continuously from 2004 to the present.
19
28.
Plaintiff has expended considerable effort and expense in promoting its Wenger
20 Emblem marks, its SWISSGEAR marks, and the Wenger Logo Design, and goods sold
21 thereunder, with the result that the purchasing public has come to know, rely upon, and
22 recognize Wenger Emblem and SWISSGEAR, individually or in tandem, as indicators of a
23 single source of origin and symbol of quality for the goods sold by Plaintiff and its authorized
24 licensees under these trademarks (hereinafter, “Plaintiff’s Goods”).
25
29.
For many years, Wenger has expended millions of dollars annually in
26 advertising, promoting and marketing SWISSGEAR and the Wenger Emblem throughout the
27 United States and the world, through such varied media as the Internet and point-of-sale
28 displays. Wenger operates websites at <wengerna.com> and <http://eu.wenger.ch/en>. As a
8
1 result of use of Wenger’s products and the advertising seen by millions, Wenger has developed
2 substantial and valuable goodwill in the SWISSGEAR, Wenger Emblem, and the Wenger Logo
3 Design marks.
30.
4
The nature of the advertising by Wenger and its authorized licensees, including
5 its scope and geographical reach, has resulted in the Wenger Emblem, SWISSGEAR, and the
6 Wenger Logo Design becoming widely recognized by the general consuming public.
7 B.
Defendants' Conduct
8
31.
Defendants are engaged in a wrongful scheme to create confusion amongst
9 consumers between their goods and the high quality Plaintiff’s Goods. Defendants’ scheme has
10 included: a) the formation of companies with the name “Swissgear” (even though Wenger owns
11 the trademark SWISSGEAR, used since at least 2003, and subject to trademark registrations
12 thereof), and then prominently mentioning the Swissgear company names in marketing and
13 advertising; b) having Krummholz seek and ultimately obtain a trademark registration of the
14 Wenger Logo Design, notwithstanding that Wenger’s trademark and copyright rights in the
15 Wenger Logo Design antedate any use by Defendants; c) marketing products, including, but not
16 limited to, backpacks and watches, using the Wenger Logo Design, the Wenger Emblem, and
17 SWISSGEAR, thereby infringing Wenger’s intellectual property rights; and d) making false and
18 misleading statements that connote an affiliation between the Defendants and Wenger, where
19 none exists.
20
21
1.
Defendants' Use of the Swissgear Name
32.
One defendant (Swissgear Sarl) currently has “Swissgear” as part of its company
22 name. Two other defendants (Swissdigital and Krummholz) also used “Swissgear” as part of
23 their corporate names until recently, when they changed to their current names. Other entities
24 believed to be related to the Fuzhou Hunter Entities also have “Swissgear” as part of their
25 respective names.
26
33.
In addition, Defendant Swissgear Sarl adopted, registered, and used the
27 <swissgearsarl.com> domain name in or about 2014.
28
34.
The aforementioned defendants first adopted Swissgear as part of the company
9
1 name and/or domain names well after Wenger’s SWISSGEAR marks were first used, registered
2 and became famous.
3
4
2.
Krummholz Seeks Trademark Registration for the Wenger Logo Design.
35.
Wenger, through its authorized licensee, first began using the Wenger Logo
5 Design as a trademark no later than 2003. On information and belief, that usage was known to
6 Hunter Li and the Fuzhou Hunter Entities before Krummholz applied for a trademark
7 registration on a substantially similar logo on or about May 25, 2013. On January 7, 2014, the
8 PTO granted a registration to Krummholz (No. 4,462,487) on the logo show below (the
9 “Krummholz Registration”):
10
11
12
13
14
15
36.
The Krummholz Registration identifies the following goods: Calculators;
16 Carrying cases for cell phones; Computer bags; inter alia in Class 9; Backpacks; Daypacks;
17 inter alia, in Class 18, and Coats; Jackets; Pants; inter alia, in Class 25. (A copy of the
18 registration certificate for the Krummholz Registration is attached hereto as Exhibit D).
19
37.
The Krummholz Registration is for a logo that is substantially and confusingly
20 similar to the Wenger Logo Design, as illustrated below:
21
22
23
24
25
26
27
Wenger Logo Design
Krummholz Registration
28
10
38.
1
The Krummholz Registration is also confusingly similar to Wenger Emblem in
2 that the Krummholz Registration includes the entire Wenger Emblem, as illustrated below:
3
4
5
6
7
Wenger Emblem
8
39.
9
Krummholz Registration
The records at the U.S. Patent and Trademark Office show that in March 2014
10 (shortly after issuance of the Krummholz Registration), Krummholz changed its name to
11 Swissgear North America Co., Ltd., and recorded the name change in connection with the
12 Krummholz Registration on August 20, 2014.
40.
13
Upon information and belief, the application for what became the Krummholz
14 Registration was in the name of Krummholz International, Inc. (rather than Swissgear North
15 America) in an effort to conceal from Wenger that an application was being filed for a mark that
16 was virtually identical to the Wenger Logo Design. Had the application been filed in the name
17 of Swissgear North America Co., Ltd., there would have been a greater chance that Wenger
18 would have detected the filing before it matured into a registration. Once the registration issued,
19 the registrant’s corporate name was changed to Swissgear North America Co., Ltd. In late
20 January 2015, immediately before filing the New York Action, the company name was changed
21 back to Krummholz International, Inc.
41.
22
On January 15, 2015, Wenger filed a cancellation proceeding at the Trademark
23 Trial and Appeal Board of the United States Patent and Trademark Office against Swissgear
24 North America Co., Ltd. (at the time, the name of the registrant) to cancel the Krummholz
25 Registration, among other relief. The cancellation proceeding has since been stayed pending an
26 outcome in the New York Action.
27
28
3.
Defendants' Infringing Conduct and Other Misconduct
42.
The Fuzhou Hunter Entities are infringing Wenger’s rights by using SWISSGEAR,
11
1 the Wenger Emblem, and the Wenger Logo Design in connection with marketing and selling
2 their products.
Often, the Fuzhou Hunter Entities are combining various aspects of this
3 infringing conduct, with the central goal always being to confuse customers into believing that
4 Defendants’ goods are somehow authorized by, or affiliated with, Wenger.
43.
5
Upon information and belief, the Fuzhou Hunter Entities’ conduct is being
6 directed and supervised by Hunter Li, who controls and has a direct financial interest in the
7 Fuzhou Hunter Entities. Hunter Li has been involved in marketing these entities’ products in,
8 among other places, Las Vegas, Nevada. Examples of the infringing conduct are described
9 below.
10
11
a.
Infringement of Wenger’s Intellectual Property Rights at Trade Shows/Conventions
44.
In the New York Action, Krummholz and Swissdigital have stated that they,
12 along with their related companies, previously marketed products using the Krummholz
13 Registration in Las Vegas, Nevada.
Upon information and belief, such products include
14 backpacks and watches, which compete directly with Wenger's products.
15
45.
Upon information and belief, some of the Defendants have attended other trade
16 shows in Las Vegas, including the January 2015 Consumer Electronics Show, and marketed the
17 same goods at those shows.
18
46.
A photo of a booth used by at least certain of the Defendants at the 2015
19 Consumer Electronics Show in Las Vegas, Nevada appears below:
20 / / /
21 / / /
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
47.
The photos above depict use of the Krummholz Registration, which infringes
25 Wenger’s rights in the Wenger Emblem and the Wenger Logo Design.
In addition, the
26 prominent use of the phrase “BY SWISSGEAR SARL” constitutes infringement of Wenger’s
27 trademark rights in Swissgear, and falsely designates Defendants’ products.
28
48.
The Fuzhou Hunter Entities’ use of the Krummholz Registration on their goods
13
1 is likely to cause confusion with the Wenger Emblem and Wenger Logo Design in the eyes of
2 consumers, and injury to Wenger.
49.
3
Defendant Fuzhou Hunter is listed as an exhibitor at the June 9-11, 2015
4 Licensing Expo trade show being held in Las Vegas, Nevada, and Fuzhou Hunter’s website
5 indicates the same. It was not until the start of the Licensing Expo that Wenger learned that
6 Defendant Fuzhou Hunter is exhibiting products using a close and infringing copy of the
7 Wenger Logo Design.
8
9
b.
Marketing and Sales of Infringing Goods Through Certain of Defendants’ Websites
50.
Until recently, Defendant Fuzhou Hunter advertised itself as a “30-year licensee
10 of Swissgear (Group) SA.” That statement was false and misleading. First, the records indicate
11 that Swissgear (Group) SA, the British Virgin Islands entity, was formed in 2014. Second, the
12 statement is designed to suggest that Fuzhou Hunter has been a longstanding licensee of Wenger
13 (and/or potentially Wenger’s parent, Victorinox AG) in a transparent effort to trade off the
14 goodwill developed by Wenger. Such a suggestion is false and misleading, as Fuzhou Hunter
15 has never been a licensee of Wenger.
For a period of time, Group III International, an
16 authorized Wenger licensee, designated one of the Fuzhou Hunter Entities as a manufacturer of
17 backpacks and other products. That manufacturing relationship has ended, and none of the
18 Fuzhou Hunter Entities is manufacturing products for any of the Wenger’s licensees, nor are
19 they authorized to use Wenger’s trademarks and/or copyrights.
20
51.
In addition, Fuzhou Hunter prominently displays the Krummholz Registration
21 (which is virtually identical to the Wenger Logo Design) on its website, apparently as a
22 corporate logo. Fuzhou Hunter’s combined use of SWISSGEAR and the Wenger Logo Design
23 (and use of the Wenger Logo Design alone), and Fuzhou Hunter’s assertion that it was a
24 licensee of Swissgear (Group) SA, are likely to cause confusion with the Wenger’s protected
25 marks in the eyes of consumers, and suggest an association between Wenger and Fuzhou
26 Hunter, where none exists. Upon information and belief, Hunter Li had directed and/or caused
27 Fuzhou Hunter to make the foregoing statements.
28
52.
A
screen-shot
of
Fuzhou
Hunter’s
14
advertising
from
its
website
1 <hunterbags.manufacturer.globalsources.com>, as of March 2015, can be seen below:
2
3
4
5
6
7
8
9
10
11
12
53.
Until recently, Fuzhou Hunter maintained a “Q&A” page on its website
13 regarding alleged licensor Swissgear (Group) SA. The first question presented asks “1. How
14 does your offer work? Will it be the Wenger brand only or including the Swiss Army brand as
15 well?” The answer given states “Including Swiss Army brand and Swissgear brand as well, the
16 actual offer are Swiss Army Logo and by Swissgear (Group) SA brand.” (Emphasis Added).
17
54.
As noted above, Wenger S.A. has the global reputation as the maker of SWISS
18 ARMY brand products. The statement that Fuzhou Hunter’s products include the Wenger brand
19 is false and misleading and is likely to cause confusion with Wenger’s protected marks in the
20 eyes of consumers and lead to a belief that Fuzhou Hunter’s products are affiliated, sponsored,
21 or authorized by Wenger, causing damage to Wenger and the public. Upon information and
22 belief, Hunter Li had directed and/or caused Fuzhou Hunter to make the foregoing statements.
23
55.
As of May 28, 2015, the “Q&A” page regarding alleged licensor Swissgear
24 (Group) SA has been removed. However, the Fuzhou Hunter Website continues to advertise
25 products under the SWISSGEAR mark and using the Wenger Logo Design, as seen below.
26 Upon information and belief, Hunter Li had directed and/or caused Fuzhou Hunter to make the
27 foregoing statements.
28
15
1
2
3
4
5
6
7
8
9
10
11
12
4.
Defendants’ Bad Faith
56.
Upon information and belief, Defendants knew of Plaintiff’s use of
13 SWISSGEAR, the Wenger Emblem, and the Wenger Logo Design, and of the SWISSGEAR
14 Registrations and the Wenger Emblem Registrations, prior to their first use of their infringing
15 SWISSGEAR company names and mark, and their use of the Wenger Emblem and Wenger
16 Logo Design.
17
57.
In particular and upon information and belief, Hunter Li founded the various
18 corporate entities that have the SWISSGEAR name and use the Wenger Logo Design as their
19 corporate logo, despite his knowledge of Wenger’s prior longstanding use of the Wenger Logo
20 Design, and the marks protected by the SWISSGEAR Registrations, and the Wenger Emblem
21 Registrations. Such conduct evidences Hunter Li’s bad faith and willful intent to infringe.
22
58.
On information and belief, Hunter Li personally attended various trade shows in
23 the United States on behalf of various Fuzhou Hunter Entities in attendance, whose products
24 were offered under SWISSGEAR and the Wenger Logo Design. For example, on information
25 and belief, Mr. Li attended CES in Las Vegas, Nevada in January 2015, where Swissgear Sarl
26 (and possibly other Fuzhou Hunter Entities) offered product using the name SWISSGEAR and
27 the Wenger Logo Design.
In addition, Mr. Li attended the March 2014 Travel Goods
28 Association Trade Show in Phoenix, Arizona, and participated in and directed the infringement
16
1 by Fuzhou Hunter at that show.
2
59.
At a minimum, Defendants had constructive knowledge of Plaintiff’s use of
3 SWISSGEAR, the Wenger Emblem, and the Wenger Logo Design, and of the SWISSGEAR
4 Registrations and the Wenger Emblem Registrations, prior to their first use of their infringing
5 SWISSGEAR company names and mark, and first use of the Wenger Emblem and Wenger
6 Logo Design.
7
60.
Defendants nevertheless intentionally adopted SWISSGEAR, the Wenger
8 Emblem, and the Wenger Logo Design to take advantage of the tremendous reputation and
9 goodwill of Wenger’s famous marks, and continue to do so knowing of the irreparable harm that
10 they have caused and will continue to cause Wenger, its marks, and the public.
11
61.
Defendants knew or should have known that SWISSGEAR, company names
12 containing SWISSGEAR, and domain names containing SWISSGEAR infringe and/or dilute
13 Wenger’s rights in SWISSGEAR. Thus, the Defendants acted knowingly, willfully, and in bad
14 faith.
15
62.
Defendants’ use of SWISSGEAR, the Wenger Emblem, and the Wenger Logo
16 Design tarnishes and dilutes the distinctive quality of SWISSGEAR, the Wenger Emblem, and
17 the Wenger Logo Design.
18
63.
In addition to the conduct described above, Defendants are continuing their
19 attempt to hijack Wenger’s intellectual property rights. On information and belief, Swissdigital
20 has filed U.S. Application Nos. 86/374,177 and 86/374,1745 (hereinafter collectively, the
21 “Swissdigital Applications”) for slightly modified versions of Krummholz Registration, which
22 also embody and copy the Wenger Logo Design and incorporate the Wenger Emblem:
23
24
25
26
27
App. No. 86/374,177
App. No. 86/374,174
28
17
64.
1
On information and belief, Swissdigital and other Fuzhou Hunter Entities offer
2 goods that compete with Plaintiff's Goods in the U.S. using the designs sought to be covered by
3 the Swissdigital Applications.
65.
4
The Swissdigital Applications have been rejected by the U.S. Patent and
5 Trademark Office based on a likelihood of confusion with the trademarks subject of the Wenger
6 Emblem Registrations.
7
8
5.
Injury to Wenger and the Public
66.
Defendants’ misconduct, including their unauthorized use of SWISSGEAR in
9 company names and domain names, and their use of the Wenger Emblem and Wenger Logo
10 Design, are likely to cause confusion and deception as to the source or origin of the Fuzhou
11 Hunter Entities’ products and/or affiliation with Wenger, and are likely to falsely suggest a
12 connection or association between the Fuzhou Hunter Entities, their products, and/or their
13 commercial activities with Wenger, where no such connection or association exists.
14
67.
Defendants’ misconduct is likely to cause confusion, or to cause mistake, or to
15 deceive persons wishing to purchase Plaintiff’s Goods, causing injury to Wenger.
16
68.
Through their conduct, Defendants intend to convince consumers and others that
17 the Fuzhou Hunter Entities' products are the same as the authorized Wenger products.
18 Defendants market the products to the same classes of consumers as Wenger and through the
19 same trade channels.
20
69.
By way of example, Defendants have marketed their infringing products at
21 several trade shows in Las Vegas Nevada, including a Travel Goods Association trade show,
22 where Wenger, through its licensee, has exhibited, offered, and promoted products. In addition,
23 some of the Defendants infringed Wenger’s intellectual property rights at the January 2015 CES
24 in Las Vegas, Nevada.
25
70.
Defendants’ misconduct, including their unauthorized use of SWISSGEAR, the
26 Wenger Emblem, and the Wenger Logo Design, has damaged and irreparably injured Wenger.
27
71.
If permitted to continue, Defendants’ misconduct will irreparably injure and
28 damage Wenger and cause further dilution to Wenger’s marks, its logos, its company name, and
18
1 its domain names.
2
72.
Defendants’ misconduct has damaged and irreparably injured the public, and if
3 permitted to continue, will continue to damage and irreparably injure the public who have an
4 interest in being protected from confusion.
5
73.
Defendants’ actions described above have diluted and are likely to continue to
6 dilute and tarnish the distinctiveness and value and reputation of the famous SWISSGEAR
7 marks, the famous Wenger Emblem, and the Wenger Logo Design.
8
CLAIMS FOR RELIEF
9
FIRST CLAIM FOR RELIEF
Trademark Infringement under 15 U.S.C. § 1114(1) (against all Defendants)
10
11
74.
Plaintiff repeats the allegations in the foregoing paragraphs as if fully set forth
75.
Plaintiff owns and has several registrations for marks that incorporate
12 herein.
13
14 SWISSGEAR on the Principal Register of the United States Patent and Trademark Office, as
15 identified above.
16
76.
By virtue of their registration with the United States Patent and Trademark
17 Office, Plaintiff’s marks are entitled to protection under the Lanham Act, 15 U.S.C. §§ 1051, et.
18 seq.
19
77.
The Fuzhou Hunter Entities’ use of the identical SWISSGEAR mark is
20 confusingly similar to Plaintiff’s registered SWISSGEAR marks.
21
78.
The Fuzhou Hunter Entities are not authorized by Plaintiff to use Plaintiff’s
22 SWISSGEAR marks, or any confusingly similar variations thereof in any way.
23
79.
The Fuzhou Hunter Entities’ use of SWISSGEAR is likely to cause confusion
24 among consumers.
25
80.
Upon information and belief, Hunter Li, with knowledge of the Wenger’s
26 trademark rights in SWISSGEAR, has directed and/or caused the Fuzhou Hunter Entities to
27 infringe Plaintiff’s rights in SWISSGEAR.
28
81.
Defendants’ use of the term SWISSGEAR to sell their products constitutes
19
1 infringement of Plaintiff’s registered SWISSGEAR marks in violation of Section 32(1) of the
2 Lanham Act, 15 U.S.C § 1114(1).
3
82.
Upon information and belief, the aforesaid acts, by which Defendants are
4 profiting, were undertaken willfully and with the intention of causing customer confusion,
5 mistake, or deception as to the source, sponsorship by or affiliation with Plaintiff.
6
83.
By reason of Defendants’ infringing conduct, Plaintiff is suffering irreparable
7 harm and, unless Defendants are enjoined from continuing their infringing conduct, Plaintiff
8 will continue to suffer irreparable harm from Defendants’ conduct.
9
84.
In addition to injunctive relief, Plaintiff is entitled to profits, damages, and costs
10 as provided by law including treble damages and attorneys’ fees in an amount to be determined
11 at trial.
12
13
14
SECOND CLAIM FOR RELIEF
Trademark Infringement Under 15 U.S.C. § 1114(1) (against all Defendants)
85.
86.
Plaintiff owns and has registered several Wenger Emblem marks on the Principal
15 herein.
16
17 Register of the United States Patent and Trademark Office, as identified above.
18
87.
By virtue of their registrations with the United States Patent and Trademark
19 Office, Plaintiff’s marks are entitled to protection under the Lanham Act, 15 U.S.C. §§ 1051, et.
20 seq.
21
88.
The Fuzhou Hunter Entities’ use of the mark covered by the Krummholz
22 Registration is confusingly similar to Plaintiff’s registered Wenger Emblem marks in that
23 Krummholz Registration encompasses the entire Wenger Emblem.
24
89.
The Fuzhou Hunter Entities are not authorized by Plaintiff to use Plaintiff’s
25 Wenger Emblem marks, or any confusingly similar variations thereof in any way.
26
90.
Upon information and belief, Hunter Li, with knowledge of the Wenger’s
27 trademark rights in the Wenger Emblem, has directed and/or caused the Fuzhou Hunter Entities
28 to infringe Plaintiff’s rights in the Wenger Emblem.
20
1
91.
Defendants’ use of the Krummholz Registration constitutes infringement of
2 Plaintiff’s registered Wenger Emblem marks in violation of Section 32(1) of the Lanham Act,
3 15 U.S.C § 1114(1).
4
92.
Upon information and belief, the aforesaid acts, by which Defendants are
5 profiting, were undertaken willfully and with the intention of causing customer confusion,
6 mistake, or deception as to the source, sponsorship by or affiliation with Plaintiff.
7
93.
By reason of Defendants’ infringing conduct, Plaintiff is suffering and will
8 continue to suffer irreparable harm and, unless Defendants are enjoined from continuing their
9 infringing conduct, Plaintiff will continue to suffer irreparable harm from Defendants’ conduct.
10
94.
In addition to injunctive relief, Plaintiff is entitled to profits, damages, and costs
11 as provided by law including treble damages and attorneys’ fees in an amount to be determined
12 at trial.
THIRD CLAIM FOR RELIEF
Unfair Competition Under 15 U.S.C. § 1125(a) (against all Defendants)
13
14
15
95.
96.
Defendants’ use of the Krummholz Registration constitutes infringement of
16 herein.
17
18 Wenger’s trademark rights in the Wenger Logo Design.
19
97.
In addition to the conduct described in the foregoing paragraph, Defendants’
20 infringing conduct and false and misleading statements that suggest an association or connection
21 between Plaintiffs and the Fuzhou Hunter Entities where none exists, constitute unfair
22 competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
23
98.
Upon information and belief, the Defendants have acted with the intention of
24 causing confusion, mistake, and deception, and of misappropriating the goodwill associated
25 with Plaintiff’s marks to profit thereby to the detriment of Plaintiff.
26
99.
As a result of Defendants’ conduct, Plaintiff is suffering irreparable harm and,
27 unless the Defendants are enjoined from continuing these wrongful acts, Plaintiff will continue
28 to suffer irreparable harm.
21
1
100.
In addition to injunctive relief, Plaintiff is also entitled to profits, damages and
2 costs, as provided by law, including treble damages and attorneys’ fees, in an amount to be
3 determined at trial.
FOURTH CLAIM FOR RELIEF
Trademark Dilution under 15 U.S.C. § 1125(c) (against all Defendants)
4
5
6
101.
102.
Wenger Emblem and SWISSGEAR are famous marks within the meaning of the
7 herein.
8
9 Trademark Dilution Revision Act.
10
103.
Wenger Emblem and SWISSGEAR are inherently distinctive and have further
11 acquired a strong recognition in the general marketplace and in the consumer goods industry as
12 a result of extensive use, advertising and publicity.
13
104.
The Defendants’ unauthorized commercial use of Wenger Emblem and
14 SWISSGEAR after Plaintiff’s Wenger Emblem marks acquired nationwide fame, is likely to
15 dilute, tarnish, and blur the distinctive quality of Plaintiff’s marks, and is diminishing the
16 capacity of those marks to identify and distinguish Plaintiff’s Goods, in violation of 15 U.S.C. §
17 1125(c).
18
105.
By reason of the acts of the Defendants, Plaintiff is suffering irreparable harm,
19 and, unless the Defendants are enjoined from continuing these wrongful acts, Plaintiff will
20 continue to suffer irreparable harm.
21
106.
Defendants willfully intended to cause dilution of Plaintiff’s famous marks. In
22 addition to injunctive relief, in light of the intentional nature of the Defendants’ actions, Plaintiff
23 is also entitled to profits, damages and costs, as provided by law, including treble damages and
24 attorneys’ fees, in an amount to be determined at trial.
FIFTH CLAIM FOR RELIEF
Trademark Counterfeiting Under 15 U.S.C. § 1114
25
26
27
107.
28 herein.
22
1
108.
Defendants’ use of SWISSGEAR in connection with the marketing and sale of
2 goods is a spurious designation that is identical to SWISSGEAR on goods covered by Plaintiff’s
3 federal trademark registrations.
4
109.
Upon information and belief, Defendants, with knowledge that their use of
5 SWISSGEAR and the Wenger Emblem is counterfeit, have intentionally used those marks in
6 the United States, in connection with the advertisement, promotion, sale, offering for sale and
7 distribution of goods including, without limitation, at various trade shows in Las Vegas,
8 Nevada. Alternatively, Defendants have been willfully blind to the existence of Wenger’s
9 SWISSGEAR Marks.
10
110.
Defendants’ use of SWISSGEAR and the Wenger Emblem to advertise, promote,
11 offer for sale, distribute and sell their goods was at all times and is currently without Plaintiff’s
12 authorization, license, or consent.
13
111.
Defendants’ use of SWISSGEAR and the Wenger Emblem in connection with
14 the advertisement, promotion, sale, offering for sale, and distribution of goods on the Internet
15 and at trade shows constitutes a use of the mark in commerce.
16
112.
Defendants’ use of the Krummholz Registration is confusingly similar to Wenger
17 Emblem (in that the Krummholz Registration encompasses the entire Wenger Emblem), and is a
18 spurious designation that is indistinguishable from Plaintiff’s use of the Wenger Emblem on
19 goods covered by its trademark registrations.
20
113.
Defendants have intentionally used the Krummholz Registration, and thus the
21 Wenger Emblem, knowing it is counterfeit, in connection with the advertisement, promotion,
22 sale, offering for sale and distribution of goods including, without limitation, at various trade
23 shows in Las Vegas, Nevada.
24
114.
Defendants’ use of the Krummholz Registration, and thus the Wenger Emblem,
25 to advertise, promote, offer for sale, distribute and sell goods bearing counterfeit trademarks has
26 been and is currently without Plaintiff’s authorization, license, or consent.
27
115.
Defendants’ use of the Krummholz Registration, and thus the Wenger Emblem,
28 on and in connection with the advertisement, promotion, sale, offering for sale, and distribution
23
1 of goods on the Internet and at trade shows constitutes a use of the mark in commerce.
116.
2
Defendants’ conduct constitutes willful trademark counterfeiting in violation of
3 Section 32 of the Lanham Act, 15 U.S.C. § 1114.
117.
4
By reason of the foregoing, the Defendants are liable for: (a) statutory damages
5 in the amount of up to $2,000,000 for each mark counterfeited as provided by 15 U.S.C. §
6 1117(c), or at Plaintiff’s election, an amount representing three times Plaintiff’s damages and/or
7 the Defendants’ illicit profits; and (b) reasonable attorneys’ fees, investigative fees, and pre8 judgment interest pursuant to 15 U.S.C. § 1117(b).
118.
9
Plaintiff is also entitled to permanent injunctive relief, including an order
10 permitting the seizure of all “goods and counterfeit marks… the means of making such
11 [counterfeit] marks, and records documenting the manufacture, sale, or receipt of things
12 involved in such [counterfeiting] violations,” pursuant to 15 U.S.C. § 1116(d).
13
14
SIXTH CLAIM FOR RELIEF
State Law Trademark and Trade Name Infringement (against all Defendants)
15
119.
120.
Defendants’ conduct constitutes trademark and trade name infringement under
16 herein.
17
18 Nevada law.
19
121.
Upon information and belief, the Defendants have acted willfully, and with the
20 intention and the likely result of confusing, misleading, and deceiving consumers.
21
122.
Defendants’ conduct constitutes willful infringement of Plaintiff’s rights in
22 violation of Nevada law.
23
123.
By reason of the Defendants’ conduct, Plaintiff is suffering irreparable harm and,
24 unless the Defendants are enjoined from continuing these wrongful acts, Plaintiff will continue
25 to suffer irreparable harm.
26
124.
In addition to injunctive relief, Plaintiff is also entitled to profits, damages, and
27 costs, as provided by law.
28
24
SEVENTH CLAIM FOR RELIEF
Copyright Infringement under 17 U.S.C. § 501(a) (against all Defendants)
1
2
3
125.
126.
The Krummholz Registration is substantially similar to Plaintiff’s Wenger Logo
4 herein.
5
6 Design.
7
127.
Upon information and belief, Defendants had access to the Wenger Design Logo,
8 and copied constituent elements of the Wenger Logo Design in creating the logo that is the
9 subject of the Krummholz Registration.
10
128.
Defendants are not authorized by Plaintiff to use Plaintiff’s Wenger Logo
11 Design, or any substantially similar variations thereof in any way.
12
129. The Fuzhou Hunter Entities’ use and reproduction of the design subject to the
13 Krummholz Registration constitutes infringement of Plaintiff’s registered copyright, in violation
14 of the Copyright Act, 17 U.S.C § 501(a).
15
130.
Upon information and belief, Hunter Li, with knowledge of the Wenger Logo
16 Design, has induced and caused the Fuzhou Hunter Entities to infringe Plaintiff’s registered
17 copyright in violation of the Copyright Act, 17 U.S.C § 501(a).
18
131.
Upon information and belief, the aforesaid infringing conduct, by which
19 Defendants are profiting, was undertaken willfully and with the intention of causing customer
20 confusion, mistake or deception as to the source, sponsorship by or affiliation with Plaintiff.
21
132.
By reason of Defendants’ conduct, Plaintiff is suffering irreparable harm and,
22 unless Defendants are enjoined from continuing its wrongful acts, will continue to suffer
23 irreparable harm from Defendants’ copyright infringement.
24
133.
In addition to injunctive relief, Plaintiff seeks an order impounding Defendants’
25 articles that display the Krummholz Registration or otherwise violate Plaintiff’s copyright in the
27
134.
Plaintiff is also entitled to actual damages and profits, or statutory damages of up
28 to $150,000 for Defendants’ willful infringement of Plaintiff’s copyright-protected Wenger
25
1 Logo Design, and costs as provided by law including attorneys’ fees in an amount to be
2 determined at trial.
EIGHTH CLAIM FOR RELIEF
Common Law Unfair Competition (against all Defendants)
3
4
135.
7
136.
Defendants’ conduct constitutes unfair competition under Nevada law.
8
137.
By reason of such acts by the Defendants, Plaintiff is suffering irreparable harm
5
6 herein.
9 and, unless the Defendants are enjoined from continuing these wrongful acts, Plaintiff will
10 continue to suffer irreparable harm.
11
138.
In addition to injunctive relief, Plaintiff is also entitled to profits, damages and
12 costs, as provided by law.
NINTH CLAIM FOR RELIEF
Cancellation of Trademark Registration Under 15 U.S.C. § 1119
(against Krummholz International, Inc.)
13
14
15
139.
140.
Plaintiff seeks cancellation of U.S. Trademark Registration No. 4,462,487 (the
16 herein.
17
18 “Krummholz Registration”), as identified above.
19
141.
The Krummholz Registration does not qualify for registration under Lanham Act,
20 15 U.S.C. §1052(d).
21
142.
The logo that is the subject of the Krummholz Registration incorporates the
22 whole of Wenger Emblem. As such, the use of the Krummholz Registration in connection with
23 goods marketed and sold by Krummholz and the other Fuzhou Hunter entities is likely to cause
24 confusion, cause mistake, and/or deceive purchasers into the belief that such goods sold under
25 the Krummholz Registration emanate from the same source as, or are authorized, sponsored, or
26 endorsed by, Wenger S.A., in violation of Section 2(d) of the Lanham Act, 15 U.S.C. §1052(d),
27 causing injury to Plaintiff and the public.
28
143.
The goods marketed and sold by Defendants using the Krummholz Registration
26
1 have been, and are continued to be, advertised, promoted, and/or sold through the same or
2 similar channels of trade as Plaintiff’s Goods, as discussed above.
3
144.
The goods marketed and sold by Defendants using the Krummholz Registration
4 have been, and are continued to be, marketed to identical or similar groups of consumers as
5 Plaintiff’s Goods.
6
145.
Plaintiff is being damaged by the Krummholz Registration on the Principal
7 Register because such registration gives color of exclusive statutory rights to the mark covered
8 by the Krummholz Registration and wrongfully denies the same rights to Plaintiff in violation
9 and in degradation of Plaintiff’s prior and superior trademark rights in Wenger Emblem and the
11
146.
Plaintiff has been and will continue to be damaged by the continuance of the
12 Krummholz Registration covering the Krummholz Registration which uses, copies, and
13 replicates the trademark-protected Wenger Emblem, thereby causing a likelihood of confusion
14 between Wenger Emblem and the mark covered by the Krummholz Registration.
15
147.
Plaintiff is also being damaged by the Krummholz Registration because the
16 Krummholz Registration has a substantial similarity to, and uses, copies, and replicates, the
17 copyright-protected Wenger Logo Design.
18
148.
In applying for—and obtaining—the Krummholz Registration, Krummholz
19 falsely alleged ownership of the Wenger Logo Design, in violation of Section 1 of the Lanham
20 Act, 15 U.S.C. §1051(a)(3)(A).
21
149.
Krummholz also fraudulently obtained the Krummholz Registration in that it
22 knowingly made the false and material representation that it had a right to use and/or register the
23 Wenger Logo Design, created by a licensee of Plaintiff and owned by Plaintiff. Defendants’
24 prior relationship in the manufacture of goods for Plaintiff incorporating the Wenger Logo
25 Design provided Defendants with the knowledge that they did not own, or have any right to use
26 or register, the Wenger Logo Design. Krummholz filed an application for the Krummholz
27 Registration with full knowledge of Plaintiff’s rights in and to Wenger Emblem and the Wenger
28 Logo Design. By filing the application for the Krummholz Registration, Krummholz knowingly
27
1 made a false and material representation regarding its right to use the Wenger Logo Design with
2 an intent to deceive the U.S. Patent and Trademark Office.
RELIEF REQUESTED
3
4
WHEREFORE, Plaintiff prays for a judgment in its favor and against Defendants
5 ordering that:
6
a.
Defendants, and each of their officers, directors, agents, servants, employees and
7 representatives, and those persons in active concert or participation with them or any of them, be
8 preliminarily and permanently enjoined and restrained from:
1.
9
Using SWISSGEAR, or any substantially similar designations, in
10 advertising, promoting, or distributing any products or services;
2.
11
Using the Wenger Emblem Mark, or any substantially similar
12 designations, in advertising, promoting, or distributing any products or services;
3.
13
Using the Wenger Logo Design, or any substantially similar designations,
14 in advertising, promoting, or distributing any products or services;
15
b.
Defendants, and each of their officers, directors, agents, servants, employees and
16 representatives, and those persons in active concert or participation with them or any of them,
17 shall cause all of their products, packaging and materials in the United States that contain
18 SWISSGEAR, the Wenger Emblem Mark, the Wenger Logo Design, or any substantially
19 similar designations of such marks and which have not been sold to end user customer to be
20 destroyed or discarded;
21
c.
Defendants be directed to file with this Court and to serve upon Plaintiff within
22 thirty (30) days after service upon Defendants of this Court’s injunction issued in this action, a
23 written report by Defendants under oath setting forth in detail the manner in which Defendants
24 have complied with this injunction;
25
d.
Plaintiff recover its damages sustained as a result of Defendants’ trademark
26 infringement, dilution and tarnishment, unfair competition, and false designation of origin,
27 under federal and state law;
28
e.
Plaintiff recover statutory damages under 17 U.S.C § 504(c) for Defendants’
28
1 willful infringement of Plaintiff’s federal copyright right;
2
f.
Plaintiff recover its reasonable attorneys’ fees pursuant to 17 U.S.C. § 505;
3
g.
The United States Patent and Trademark Office cancel U.S. Trademark
4 Registration No. 4,462,487;
5
h.
Plaintiff recover treble damages under 15 U.S.C. § 1117 by reason of the willful
6 and deliberate acts of federal trademark dilution by Defendant;
7
i.
Plaintiff recover its reasonable attorneys’ fees pursuant to 15 U.S.C. § 1117;
8
j.
Plaintiff recover its taxable costs and disbursements herein; and
9
k.
Plaintiff be awarded other relief as the Court may deem just and proper.
10
JURY TRIAL DEMAND
11
PLAINTIFF HEREBY DEMANDS A TRIAL BY JURY.
12
Dated this 10th day of June, 2015.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
By:
/s/ Gary R. Goodheart
GARY R. GOODHEART, ESQ. (NV Bar #1203)
KARL L. NIELSON, ESQ. (NV Bar #5082)
FENNEMORE CRAIG, P.C.
300 S. Fourth Street, Suite 1400
Las Vegas, NV 89101
Telephone: (702) 692-8000
Facsimile: (702) 692-8099
Email: ggoodheart@fclaw.com
knielson@fclaw.com
RICHARD H. BROWN, ESQ.
DAVID I. GREENBAUM, ESQ.
DAY PITNEY LLP
7 Times Square, 20th Floor
New York, NY 10036
Telephone: (212) 297-5854
Facsimile: (973) 206-6129
Email: rbrown@daypitney.com
dgreenbaum@daypitney.com
Counsel for Plaintiff
28
29
Case 2:15-cv-01098 Document 1-1 Filed 06/10/15 Page 1 of 5
EXHIBIT A
EXHIBIT B
.
EXHIBIT C
.
Registration Number
VA 1-935-912
Effective date of
registration:
December 23, 2014
Title
Title of Work: Graphic Design
Completion/Publication
Year of Completion: 2003
Date of 1st Publication: March 31, 2004
Nation of 1st Publication: United States
Author
Author: Group III International, Ltd.
Author Created: 3-D artwork
Work made for hire: Yes
Domiciled in: United States
Copyright claimant
Copyright Claimant: Wenger S.A.
Route de Bale 63, Delemont, 2800, Switzerland
Transfer Statement: By written agreement
Limitation of copyright claim
Material excluded from this claim: Registered cross design trademark owned by Claimant
New material included in claim: Artwork incorporating registered cross design trademark owned by Claimant
Rights and Permissions
Organization Name: Day Pitney LLP
Name: David I. Greenbaum
Email: dgreenbaum@daypitney.com
Telephone:
212-297-5812
Address: 7 Times Square
20th Floor
New York, NY 10036 United States
Certification
Page 1 of 2
Name: David I. Greenbaum
Date: December 23, 2014
Applicant's Tracking Number: 782646-000080
Page 2 of 2
IPN#:
Registration #: VA0001935912
Service Request #: 1-1982284221
Day Pitney LLP
David I. Greenbaum
7 Times Square
20th Floor
New York, NY 10036 United States
Case 2:15-cv-01098
Document 1-4
Filed 06/10/15
EXHIBIT D
Page
1 of 3
Case 2:15-cv-01098
Document 1-4
Filed 06/10/15
:s)tate5 of
raint
Page
2 of 3
ame,
liniteb *tato Patent anb Trabetnarh Office
i
g
IKJV
Reg. No. 4,462, 487
Registered Jan. 7, 2014
Int. Cls.:
9, 18 and 25
KRUMMHOLZ INTERNATIONAL INC
(CANADA CORPORATION)
7 CORTINA CRT
RICHMOND
HILT., ONTARIO,
CANADA I 4B3G8
FOR: CALCULATORS; CARRYING CASES FOR CELL PHONES; CASES FOR PHOTOGRAPHIC APPARATUS; CELL PHONE CASES; CHARGERS FOR ELECTRIC BATTERIES; COMPUTER BAGS; COMPUTER CARRYING CASES; COMPUTER MEMORY HARDWARE;
COMPUTER MOUSE; PROTECTIVE HELMETS FOR SPORTS; SUN GLASSES, IN CLASS
TRADEMARK
9
(U.S.
CLS.
21, 23, 26, 36 AND 38).
PRINCIPAL REGISTER
FIRST USE
3-6-2011; IN COMMERCE 3-6-2011.
FOR: ANIMAL
SKINS; ANIMAL SKINS AND HIDES; ANIMAL WRAPS AND COVERS;
FUR; ATTACHE CASES; BABY BACKPACKS; BABY CARRYING BAGS;
BACKPACKS; BACKPACKS WITH ROLLING WHEELS; BAGS FOR CLIMBERS IN THE
NATURE OF ALL-PURPOSE CARRYING BAGS; BEACHBAGS; BOOK BAGS; BRIEFBAGS;
BRIEFCASES; BUM BAGS; BUSINESS CASES; CANVAS SHOPPING BAGS; DAYPACKS;
ARTIFICIAL
DIAPER BAGS; GYM BAGS; I IANDBAGS; I LIKING RUCKSACKS; KIT BAGS; KNAPSACKS;
LEATHER AND IMITATION LEATHER SPORT BAGS ANL) GENERAL PURPOSE TROLLEY
14'
.4..)-;:;.:,
1+1.14IVT FA"
OF
BAGS; LEATHER BAGS AND WALLETS; LEATHER HANDBAGS; LEATHER SHOULDER
BELTS; LUGGAGE; MESSENGER BAGS; MILITARY DUFFLE BAGS, GARMENT BAGS
FOR TRAVEL, TOTE BAGS, SHOULDER BAGS AND BACKPACKS; PURSES AND WALLETS; RUCKSACKS; SADDLE BELTS; SCHOOL SATCHELS; SCHOOLBAGS; SCHOOLCHILDREN'S BACKPACKS; SHOULDER BAGS; SPORTS BAGS; SPORTS PACKS; SUITCASES; TOOL BAGS SOLD EMPTY; TOOL POUCIIES, SOLD EMPTY; TRAVEL BAGGAGE;
TRAVEL CASES; TRAVELLING TRUNKS; UMBRELLAS; WALLETS; WASH BAGS FOR
CARRYING TOILETRIES; WHEELED SHOPPING BAGS; WRISTLET BAGS, IN CIA SS 18
(U.S. CLS. 1, 2, 3, 22 AND 41).
FIRST USE
3-6-2011, IN COMMERCE 3-6-2011.
FOR: BELTS; BOOTS FOR SPORE COATS; GLOVES AS
e_e_z.,_J
CLOTHING; HATS; JACKETS;
PANTS; RAIN COATS; SCARVES; SHIRIS; SHOES; SKIRTS; SLEEPWEAR; SOCKS; SPORTS
SHOES; T-SLERTS; TIES; TOPS; UNDERWEAR;
(U.S. CLS. 22 AND 39).
IN CLASS 25
Commissioner for Trademarks of the
United States Patent and Trademark Office
FIRST IJSE 3-6-2011: IN COMMERCE 3-6-2011.
WATERPROOF JACKETS AND
PANTS;
Case 2:15-cv-01098
Reg.
No.
4,462, 487
Document 1-4
Filed 06/10/15
Page
3 of 3
THE MARK CONSISTS OF A "T" SHAPE WITH TWO CIRCLES ON LEFT AND RIGHT TOP
CORNERS,
AND A "N"
LINE,
TWO ROUND CORNER
THREE BARS INSIDE.
SER. NO.
85-942,673, FILED 5-25-2013.
DAVID I, EXAMINING ATTORNEY
Page:
2
RN 4
4, 462, 487
SQUARES,
A
CROSS,
A
X. AND
CIVIL COVER SHEET
@I // %HTe) ,-*,-&
JWT @I // RXeX[RêTa bWTTc P]S cWT X]Uâ\ PcX^]R^]cPX]TS WTaTX]]TXcWTa aT_[PRT ]â bd __[T\ T]c cWT UX[X]V P]S bTaeXRT Û _[TPSX]V b â ^cWTa _P_Tab Pb aT`d XaTS Qh [Pf ' TgRT_c Pb
_aêXSTS Qh [^RP[ad [Tb Û R^d ac) JWXb Uâ\ ' P__aêTS Qh cWT @d SXRXP[8^]UTaT]RT Û cWT K ]XcTS IcPcTb X]IT_cT\ QTa ,42/' Xb aT`d XaTS Uâ cWT d bT Û cWT 8[TaZ Û 8^d ac Uâ cWT
_d a_^bT Û X]XcXPcX]V cWT RXeX[ S^RZ Tc bWTTc) (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
W engerS.A.
FuzhouHunterProductImportandExportCo.,Ltd.,etal
.
Del
emont,Swi
tzerl
and
(b) 8^d ]ch Û HTbXST]RT Û <Xabc BXbcTS F[PX]cXUU
8^d ]ch Û HTbXST]RT Û <Xabc BXbcTS 9TUT]SP]c
(EXCEPT IN U.S. PLAINTIFF CASES)
DEJ; 5
(c) 6 ccâ]Thb (Firm Name, Address, and Telephone Number)
GaryR.Goodheart(#1203)/KarlL.Ni
el
son(#5082)
FennemoreCrai
g,P.C.
300S.4thSt.,#1400,LasVegas,NV 89101/PH (702)692-8000
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
" ,
K )I) = êTa]\ T]c
F[PX]cXUU
" .
<TSTaP[G d TbcX^]
(U.S. Government Not a Party)
" -
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9TUT]SP]c
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9XeTabXch
(Indicate Citizenship of Parties in Item III)
Fuzhou,Fuj
i
an,Chi
na
(IN U.S. PLAINTIFF CASES ONLY)
?D B6 D9 8ED9; C D6 J?ED 86 I; I' K I; J>; BE86 J?ED E<
J>; JH6 8J E< B6 D9 ?DLEBL; 9)
6 ccâ]Thb (If Known)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only)
PTF
8XcXiT]Û JWXb IcPcT
" ,
DEF
" ,
and One Box for Defendant)
PTF
DEF
?]Râ_âPcTS or FaX]RX_P[F[PRT
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IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT
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TORTS
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REAL PROPERTY
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PERSONAL INJURY
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I[P]STa
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?]Yd ah
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CIVIL RIGHTS
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FORFEITURE/PENALTY
PERSONAL INJURY
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PRISONER PETITIONS
Habeas Corpus:
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PROPERTY RIGHTS
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LABOR
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SOCIAL SECURITY
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31. 9?M 8*9?M M %/+ 0%V &&
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FEDERAL TAX SUITS
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OTHER STATUTES
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V. ORIGIN (Place an “X” in One Box Only)
" , EaXV X]P[
Fa^RTTSX]V
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IcPcT 8^d ac
"
.
HT\ P]STS Ua^\
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(specify)
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BXcXV PcX^]
8XcT cWT K )I) 8XeX[IcPcd cT d ]STa f WXRW h^d PaT UX[X]V (Do not cite jurisdictional statutes unless diversity)5
15USC §1114(1);15USC §1125(a);15USC §1125(c);17USC §501(a);15USC §1119
VI. CAUSE OF ACTION 7aXTU STbRaX_cX^]Û RPd bT5
Trademark/copyri
ghti
nfri
ngement
" 8>; 8A ?< J>?I ?I 6 CLASS ACTION
VII. REQUESTED IN
K D9; H HK B; -.' <)H)8e)F)
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
@K 9= ;
96 J;
DEMAND $
8>; 8A O; I ^][h XU ST\ P]STS X]R^\ _[PX]c5
" OTb
" D^
JURY DEMAND:
9E8A ; J DK C 7; H
I?= D6 JK H; E< 6 JJEHD; O E< H; 8EH9
/s/GaryR.Goodheart
06/10/2015
FOR OFFICE USE ONLY
H; 8; ?FJ #
6 C EK DJ
6 FFBO?D= ?<F
@K 9= ;
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AO 440 (Rev. 06/12) Summons in a Civil Action
for the
District
of Nevada
__________
District
of __________
WENGER S.A.
Plaintiff(s)
v.
FUZHOU HUNTER PRODUCT IMPORT AND
EXPORT CO., LTD.; SWISSDIGITAL USA CO., LTD.;
KRUMMHOLZ INTERNATIONAL INC.; SWISSGEAR
SARL; and ZHIJIAN “HUNTER” LI
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address)
FUZHOU HUNTER PRODUCT IMPORT AND EXPORT CO., LTD.
24/F Suite A Huankaifugui Office Building No 36,
Dongda Road, Fuzhou, Fujian, 350001 China
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are:
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any)
was received by me on (date)
.
" I personally served the summons on the individual at (place)
on (date)
; or
" I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date)
, and mailed a copy to the individual’s last known address; or
" I served the summons on (name of individual)
, who is
designated by law to accept service of process on behalf of (name of organization)
on (date)
; or
" I returned the summons unexecuted because
; or
" Other (specify):
.
My fees are $
for travel and $
for services, for a total of $
I declare under penalty of perjury that this information is true.
Date:
Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
0.00
.
for the
District
of Nevada
__________
District
of __________
WENGER S.A.
Plaintiff(s)
v.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
SWISSDIGITAL USA CO., LTD.
7 Cortina Court, Richmond Hill, Ontario,
Canada L4B 3G8
CLERK OF COURT
Date:
Civil Action No.
PROOF OF SERVICE
.
on (date)
; or
on (date)
, who is
on (date)
; or
; or
" Other (specify):
.
My fees are $
for travel and $
Date:
Server’s address
0.00
.
for the
District
of Nevada
__________
District
of __________
WENGER S.A.
Plaintiff(s)
v.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
KRUMMHOLZ INTERNATIONAL INC.
7 Cortina Court, Richmond Hill, Ontario,
Canada L4B 3G8
CLERK OF COURT
Date:
Civil Action No.
PROOF OF SERVICE
.
on (date)
; or
on (date)
, who is
on (date)
; or
; or
" Other (specify):
.
My fees are $
for travel and $
Date:
Server’s address
0.00
.
for the
District
of Nevada
__________
District
of __________
WENGER S.A.
Plaintiff(s)
v.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
SWISSGEAR SARL
Haldenstrasse 5, 6340 Baar,
Switzerland
CLERK OF COURT
Date:
Civil Action No.
PROOF OF SERVICE
.
on (date)
; or
on (date)
, who is
on (date)
; or
; or
" Other (specify):
.
My fees are $
for travel and $
Date:
Server’s address
0.00
.
for the
District
of Nevada
__________
District
of __________
WENGER S.A.
Plaintiff(s)
v.
Defendant(s)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
ZHIJIAN “HUNTER” LI
43 Gorden Rowe Crescent,
Richmond Hill, Ontario L4C 8S1,
Canada
CLERK OF COURT
Date:
Civil Action No.
PROOF OF SERVICE
.
on (date)
; or
on (date)
, who is
on (date)
; or
; or
" Other (specify):
.
My fees are $
for travel and $
Date:
Server’s address
0.00
.

wenger fuzhou tmk complaint

Transcription

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