Skechers et. al. v. Shoe Confession et. al.
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Transcript of Skechers et. al. v. Shoe Confession et. al.
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_____________________________________________________1_______________________________________________________
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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Marshall A. Lerner (State Bar No. 55,224)[email protected] & LERNER, LLP1875 Century Park East, Suite 1150Los Angeles, California 90067-2501
Telephone: (310) 557-1511Facsimile: (310) 557-1540
Attorney for Plaintiffs Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II
UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
Plaintiffs Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II (collectively Skechers) for their
complaint against defendants Shoe Confession, LLC, Perry Ellis International, Inc., PEI Licensing Inc.
and Does 1-10 (collectively defendants), allege as follows:
NATURE OF THE ACTION
1. This is an action for design patent infringement, trade dress infringement, and unfaircompetition.
2. Skechers is a billion-dollar global leader in the lifestyle footwear industry. Skechers isalso a high-performance footwear brand and a world leader in designing cutting-edge footwear. It has
SKECHERS U.S.A., INC., a DelawareCorporation, and SKECHERS U.S.A.,
INC. II, a Delaware CorporationPlaintiffs,
v.SHOE CONFESSION, LLC., a New YorkCorporation, PERRY ELLISINTERNATIONAL, INC., a FloridaCorporation, PEI LICENSING, INC., aDelaware Corporation and Does 1 10inclusive,
Defendants.
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Case No.:
COMPLAINT FOR DAMAGES AND INJUNCTIVERELIEF FOR:
(1) PATENT INFRINGEMENT [35 U.S.C. 271];
(2) FEDERAL UNFAIR COMPETITIONAND TRADE DRESS INFRINGEMENT[15 U.S.C. 1125(a)];
(3) COMMON LAW UNFAIRCOMPETITION
DEMAND FOR JURY TRIAL
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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invested and spent hundreds of millions of dollars creating and promoting its new shoe designs. One
such new design is an ornamental sole bottom and outsole periphery, an example of which is embodied
in its SKECHERS GO RUN shoe. The SKECHERS GO RUN shoe, its sole bottom and its outsole
periphery have been heavily advertised on TV, in magazines, and the Internet. In approximately the last
year alone, Skechers spent more than $10 million promoting, marketing and advertising its SKECHERS
GO RUN shoe. The shoe has been featured in several widely aired television commercials and has
been the subject of a number of magazine articles. The innovative design of the SKECHERS GO RUN
shoe has also received several awards. See Exhibit 1. The fame and popularity of the SKECHERS GO
RUN shoe and its sole bottom and outsole periphery can be measured by the fact that hundreds of
thousands of pairs of SKECHERS GO RUN shoes have been sold since the shoe has been on the
market.
3. In order to identify certain of its shoes, including the SKECHERS GO RUN shoe, asemanating from a single source, Skechers created a new and unique trade dress embodied in the sole
bottom and a new and unique trade dress embodied in the outsole periphery of the SKECHERS GO
RUN shoe.
4. An example of this sole bottom trade dress is shown in the following photographindicated by the red circle:
SKECHERS GO RUN Sole Bottom Trade Dress
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_____________________________________________________3_______________________________________________________
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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5. This sole bottom trade dress has an ornamental configuration that uniquely identifies theshoe as emanating from a single source, Skechers. As can be seen in the following photograph, the
distinctive ornamental feature of the SKECHERS GO RUN sole bottom trade dress is (1) the pattern
of nubs where large nubs (indicated by wide red arrows) form the shape of an X (indicated by the red
line); (2) the large X-patterned nubs are surrounded by mid-size and smaller sized nubs (indicated by
narrow blue arrows); and (3) the repeating pattern of cleats and nubs where cleats that have a relatively
straight periphery surface (indicated by wide yellow arrows) alternate with nubs that have a curved
periphery surface (indicated by wide green arrows):
SKECHERS GO RUN Sole Bottom Trade Dress
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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6. An example of this outsole periphery trade dress is indicated by the red outline in thefollowing photograph:
SKECHERS GO RUN Outsole Periphery Trade Dress Indicated by Red Outline
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_____________________________________________________5_______________________________________________________
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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7. As can be seen in the following photograph, the distinctive ornamental feature of theSKECHERS GO RUN outsole periphery trade dress is the repeating pattern of cleats and nubs where
cleats that have a relatively straight periphery surface (indicated by wide yellow arrows) alternate with
nubs that have a curved periphery surface (indicated by wide green arrows):
SKECHERS GO RUN Outsole Periphery Trade Dress Indicated by Green and Yellow Arrows
8. Skechers has acquired four U.S. design patents, D651,788 S (Exhibit 2), D652,613 S(Exhibit 3), D652,614 S (Exhibit 4), and D650,980 S (Exhibit 5) which each cover different ornamental
features of the SKECHERS GO RUN sole bottom and outsole periphery.
9. The unique ornamental appearance of the SKECHERS GO RUN sole bottom trade dressand the SKECHERS GO RUN
outsole periphery, combined with Skechers extensive advertising,
promotion, and sales, has resulted in the SKECHERS GO RUN sole bottom trade dress and
SKECHERS GO RUN outsole periphery trade dress acquiring distinctiveness among shoe buyers. In
the mind of the typical shoe buyer, the SKECHERS GO RUN sole bottom trade dress and the
SKECHERS GO RUN outsole periphery trade dress is believed to emanate from a single source,
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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namely, Skechers. This acquired distinctiveness is protectable, proprietary trade dress owned
exclusively by Skechers.
10. Rather than undertake the hard work and financial risks involved in developing their ownsole bottom trade dress, defendants simply copied Skechers SKECHERS GO RUN sole bottom trade
dress. The sole bottom of defendants Pro Player Phaze 2M. shoe in this regard is shown below.
Pro Player Phaze 2M Shoe Sole Bottom by Shoe Confession, LLC, Perry Ellis International, Inc.,
and PEI Licensing, Inc.
11. As can be seen in the photograph above, the sole bottom of defendants Pro Player Phaze2M shoe bears the same repeating nub pattern used by Skechers as its SKECHERS GO RUN sole
bottom trade dress, i.e., the nubs are arranged in a distinctive ornamental pattern where large nubs
(indicated by wide red arrows) form the shape of an X (indicated by the red line), the large X-patterned
nubs are surrounded by mid-size and smaller sized nubs (indicated by narrow blue arrows), and the
repeating pattern of cleats and nubs where cleats that have a relatively straight periphery surface
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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(indicated by wide yellow arrows) alternate with nubs that have a curved periphery surface (indicated by
wide green arrows).
12. As can be seen in the photograph below, the outsole periphery of defendants Pro PlayerPhaze 2M shoe bears the same repeating cleat and nub pattern used by Skechers as its SKECHERS GO
RUN outsole periphery trade dress, i.e. the cleats that have a relatively straight periphery surface
(indicated by wide yellow arrows) alternate with nubs that have a curved periphery surface (indicated by
wide green arrows).
Pro Player Phaze 2M Shoe Outsole Periphery by Shoe Confession, LLC, Perry Ellis International, Inc.,
and PEI Licensing, Inc.
13. By using Skechers SKECHERS GO RUN sole bottom trade dress and outsoleperiphery trade dress on defendants shoes, defendants deceive consumers into buying defendants shoes
in the mistaken belief that defendants shoes emanate from Skechers and are genuine Skechers shoes.
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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PARTIES
14. Plaintiff Skechers U.S.A., Inc. is a corporation duly organized and existing under thelaws of the State of Delaware with a principal place of business located at 228 Manhattan Beach Blvd.,
Manhattan Beach, California 90266.
15. Plaintiff Skechers U.S.A., Inc. II is a corporation duly organized and existing under thelaws of the State of Delaware with a principal place of business located at 228 Manhattan Beach Blvd.,
Manhattan Beach, California 90266. Skechers U.S.A., Inc. II is a wholly-owned subsidiary of Skechers
U.S.A., Inc.
16. Defendant Shoe Confession, LLC is a New York corporation having an office and placeof business at 1 W 34th Street #703, New York, NY 10001.
17. Defendant Perry Ellis International, Inc. is a Florida corporation having an office andplace of business at 3000 N.W. 107th Avenue, Miami, Florida 33172.
18. Defendant PEI Licensing, Inc. is a Delaware corporation having an office and place ofbusiness at 3000 N.W. 107th Avenue, Miami, Florida 33172. PEI Licensing, Inc. is a wholly-owned
subsidiary of Perry Ellis International, Inc.
19. Defendants Does 1 10, inclusive, are sued herein under fictitious names. Their truenames and capacities are unknown to Skechers. When their true names and capacities are ascertained,
Skechers will amend this complaint by inserting their true names and capacities. Skechers is informed
and believes and thereon alleges, that Does 1 10, and each of them are responsible in some manner for
the occurrences alleged herein and that Skechers damages were proximately caused by such defendants.
JURISDICTION AND VENUE
20. Jurisdiction in this Court arises under the patent laws of the United States, 35 U.S.C.271 and 289 and the provisions of 15 U.S.C. 1121 and 1125. This complaint also alleges violations
of state law and common law. This Court has jurisdiction over these claims pursuant to 28 U.S.C.
1338(a) and (b), 1367(a), and 1400(b).
21. This Court has personal jurisdiction over defendants because they have committed one ormore of the infringing acts complained of herein in California and in this district, they have multiple
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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sales outlets in California and in this district, and they do regular business in California and in this
district.
22. Venue in this Court is proper under the provisions of 28 U.S.C. 1391(b) and (c)because a substantial part of the claims arose in this district.
SKECHERS SKECHERS GO RUN SOLE BOTTOM AND OUTSOLE PERIPHERY
DESIGN PATENTS
23. The United States Patent and Trademark Office has acknowledged the novel, non-obvious, and ornamental appearance of the sole bottom and outsole periphery of the SKECHERS GO
RUN shoe by issuing U.S. Patent, No. D651,788 S (Exhibit 2, the '788 patent) therefor to Skechers.
Defendants infringement of the '788 patent can be seen in the comparison below which shows a sample
figure of the sole bottom from the '788 patent next to defendants Pro Player Phaze 2M shoe sole
bottom.
SKECHERS U.S.
DESIGN PATENT
D651,788 S
SHOE BOTTOM
PRO PLAYER
PHAZE 2M
(SHOE
CONFESSION,
LLC, PERRY ELLIS
INTERNATIONAL,
INC., AND PEILICENSING, INC.)
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_____________________________________________________10_______________________________________________________
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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Defendants infringement of the '788 patent can also be seen in the comparison below which shows a
sample figure of the outsole periphery from the '788 patent next to defendants Pro Player Phaze 2M
shoe outsole periphery.
SKECHERS U.S.
DESIGN PATENT
D651,788 S
SHOE BOTTOM
PRO PLAYER
PHAZE 2M
(SHOE
CONFESSION,
LLC, PERRY ELLIS
INTERNATIONAL,
INC., AND PEI
LICENSING, INC.)
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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24. The United States Patent and Trademark Office has acknowledged the novel, non-obvious, and ornamental appearance of the sole bottom and outsole periphery of the SKECHERS GO
RUN shoe by issuing U.S. Patent, No. D652,613 S (Exhibit 3, the '613 patent) therefor to Skechers.
Defendants infringement of the '613 patent can be seen in the comparison below which shows a sample
figure of the sole bottom from the '613 patent next to defendants Pro Player Phaze 2M shoe sole
bottom.
SKECHERS U.S.
DESIGN PATENT
D652,613 S
SHOE BOTTOM
PRO PLAYER
PHAZE 2M
(SHOE
CONFESSION,
LLC, PERRY ELLIS
INTERNATIONAL,INC., AND PEI
LICENSING, INC.)
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_____________________________________________________12_______________________________________________________
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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Defendants infringement of the '613 patent can also be seen in the comparison below which shows a
sample figure of the outsole periphery from the '613 patent next to defendants Pro Player Phaze 2M
shoe outsole periphery.
SKECHERS U.S.
DESIGN PATENT
D652,613 S
SHOE BOTTOM
PRO PLAYER
PHAZE 2M
(SHOE
CONFESSION,
LLC, PERRY ELLIS
INTERNATIONAL,
INC., AND PEI
LICENSING, INC.)
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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25. The United States Patent and Trademark Office has acknowledged the novel, non-obvious, and ornamental appearance of the sole bottom and outsole periphery of the SKECHERS GO
RUN shoe by issuing U.S. Patent, No. D652,614 S (Exhibit 4, the '614 patent) therefor to Skechers.
Defendants infringement of the '614 patent can be seen in the comparison below which shows a sample
figure of the sole bottom from the '614 patent next to defendants Pro Player Phaze 2M shoe sole
bottom.
SKECHERS U.S.
DESIGN PATENT
D652,614 S
SHOE BOTTOM
PRO PLAYER
PHAZE 2M
(SHOE
CONFESSION,
LLC, PERRY ELLIS
INTERNATIONAL,
INC., AND PEI
LICENSING, INC.)
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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Defendants infringement of the '614 patent can also be seen in the comparison below which shows a
sample figure of the outsole periphery from the '614 patent next to defendants Pro Player Phaze 2M
shoe outsole periphery.
SKECHERS U.S.
DESIGN PATENT
D652,614 S
SHOE BOTTOM
PRO PLAYER
PHAZE 2M
(SHOE
CONFESSION,
LLC, PERRY ELLIS
INTERNATIONAL,
INC., AND PEI
LICENSING, INC.)
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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26. The United States Patent and Trademark Office has acknowledged the novel, non-obvious, and ornamental appearance of the outsole periphery of the SKECHERS GO RUN shoe by
issuing U.S. Patent, No. D650,980 (Exhibit 5, the '980 patent) therefor to Skechers. Defendants
infringement of the '980 patent can be seen in the comparison below which shows a sample figure of the
sole bottom from the '980 patent next to defendants Pro Player Phaze 2M shoe sole bottom.
SKECHERS U.S.
DESIGN PATENT
D650,980 S
SHOE OUTSOLE
AND PERIPHERY
PRO PLAYER
PHAZE 2M
(SHOE
CONFESSION,
LLC, PERRY ELLIS
INTERNATIONAL,
INC., AND PEI
LICENSING, INC.)
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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Defendants infringement of the '980 patent can also be seen in the comparison below which shows a
sample figure of the outsole periphery from the '980 patent next to defendants Pro Player Phaze 2M
shoe outsole periphery.
SKECHERS U.S.
DESIGN PATENT
D650,980 S
SHOE OUTSOLE
AND PERIPHERY
PRO PLAYER
PHAZE 2M
(SHOE
CONFESSION,
LLC, PERRY ELLIS
INTERNATIONAL,
INC., AND PEI
LICENSING, INC.)
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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SKECHERS SKECHERS GO RUN SOLE BOTTOM AND OUTSOLE PERIPHERY
TRADE DRESS
27. The trade dress embodied in the sole bottom of the SKECHERS GO RUN shoe isshown in comparison to the Pro Player Phaze 2M shoe below.
SKECHERS GO RUN Sole Bottom
Pro Player Phaze 2M Shoe Sole Bottom by Shoe Confession, LLC., Perry Ellis International,
Inc., and PEI Licensing Inc. Sole Bottom
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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28. The trade dress embodied in the outsole periphery of the SKECHERS GO RUN shoe isshown in comparison to the Pro Player Phaze 2M shoe below.
SKECHERS GO RUN Outsole Periphery
Pro Player Phaze 2M Shoe Outsole Periphery by Shoe Confession, LLC., Perry Ellis
International, Inc., and PEI Licensing Inc. Outsole Periphery
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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FIRST CAUSE OF ACTION
(Design Patent Infringement, Patent No. US D651,788 S)
29. Skechers realleges and incorporates by reference the full text of all of the foregoingnumbered paragraphs, photographs and figures as though each such paragraph, photograph and figure
has been fully set forth hereat.
30. On January 10, 2012, the United States Patent and Trademark Office issued United StatesPatent, Patent No. US D651,788 S, the '788 patent. At all times since the date of issue of the '788 patent
Skechers has been, and currently is, the exclusive owner of the entire right, title and interest in and to the
'788 patent. Skechers' ownership of the '788 patent includes without limitation the exclusive right to
enforce the '788 patent, the exclusive right to file actions based on infringement of the '788 patent, and
the exclusive right to recover damages or other monetary amounts for infringement of the '788 patent
and to be awarded injunctive relief pertaining to the '788 patent. Skechers has owned the '788 patent at
all times during defendants' infringement of the '788 patent.
31. Defendants have been, and presently are, infringing the '788 patent within this judicialdistrict and elsewhere by making and selling shoes that embody the patented invention disclosed in the
'788 patent. Defendants infringement of the '788 patent is willful. Defendants' infringing shoes are
referred to as Pro Player Phaze 2M. Defendants' Pro Player Phaze 2M shoe is shown above and in
Exhibit 6. Defendants will continue to manufacture and sell their Pro Player Phaze 2M shoes unless
enjoined by this Court.
32. The sole bottom and outsole periphery of defendants' Pro Player Phaze 2M shoe soclosely resembles the invention disclosed in the '788 patent that an ordinary observer would be deceived
into purchasing the Pro Player Phaze 2M shoe in the mistaken belief that it includes the invention
disclosed in the '788 patent. Defendants' Pro Player Phaze 2M shoe infringes the '788 patent in violation
of 35 U.S.C. 271 and 289.
33. Due to Defendants' infringement of the '788 patent, Skechers has suffered, is suffering,and will continue to suffer irreparable injury for which Skechers has no adequate remedy at law.
Skechers is therefore entitled to a permanent injunction against defendants' further infringing conduct.
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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34. Defendants have profited and are profiting from their infringement of the '788 patent andSkechers has been and is being damaged and losing profit by such infringement. Skechers is therefore
entitled to recover damages from defendants and the total profit derived from such infringement, all in
an amount to be proven at trial.
SECOND CAUSE OF ACTION
(Design Patent Infringement, Patent No. US D652,613 S)
35. Skechers realleges and incorporates by reference the full text of all of the foregoingnumbered paragraphs, photographs and figures as though each such paragraph, photograph and figure
has been fully set forth hereat.
36. On January 24, 2012, the United States Patent and Trademark Office issued United StatesPatent, Patent No. US D652,613 S, the '613 patent. At all times since the date of issue of the '613 patent
Skechers has been, and currently is, the exclusive owner of the entire right, title and interest in and to the
'613 patent. Skechers' ownership of the '613 patent includes without limitation the exclusive right to
enforce the '613 patent, the exclusive right to file actions based on infringement of the '613 patent, and
the exclusive right to recover damages or other monetary amounts for infringement of the '613 patent
and to be awarded injunctive relief pertaining to the '613 patent. Skechers has owned the '613 patent at
all times during defendants' infringement of the '613 patent.
37. Defendants have been, and presently are, infringing the '613 patent within this judicialdistrict and elsewhere by making and selling shoes that embody the patented invention disclosed in the
'613 patent. Defendants infringement of the '613 patent is willful. Defendants' infringing shoes are
referred to as Pro Player Phaze 2M. Defendants' Pro Player Phaze 2M shoe is shown above and in
Exhibit 6. Defendants will continue to manufacture and sell their Pro Player Phaze 2M shoes unless
enjoined by this Court.
38. The sole bottom and outsole periphery of defendants' Pro Player Phaze 2M shoe soclosely resembles the invention disclosed in the '613 patent that an ordinary observer would be deceived
into purchasing the Pro Player Phaze 2M shoe in the mistaken belief that it includes the invention
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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disclosed in the '613 patent. Defendants' Pro Player Phaze 2M shoe infringes the '613 patent in
violation of 35 U.S.C. 271 and 289.
39. Due to defendants' infringement of the '613 patent, Skechers has suffered, is suffering,and will continue to suffer irreparable injury for which Skechers has no adequate remedy at law.
Skechers is therefore entitled to a permanent injunction against defendants' further infringing conduct.
40. Defendants have profited and are profiting from their infringement of the '613 patent andSkechers has been and is being damaged and losing profit by such infringement. Skechers is therefore
entitled to recover damages from defendants and the total profit derived from such infringement, all in
an amount to be proven at trial.
THIRD CAUSE OF ACTION
(Design Patent Infringement, Patent No. US D652,614 S)
41. Skechers realleges and incorporates by reference the full text of all of the foregoingnumbered paragraphs, photographs and figures as though each such paragraph, photograph and figure
has been fully set forth hereat.
42. On January 24, 2012, the United States Patent and Trademark Office issued United StatesPatent, Patent No. US D652,614 S, the '614 patent. At all times since the date of issue of the '614 patent
Skechers has been, and currently is, the exclusive owner of the entire right, title and interest in and to the
'614 patent. Skechers' ownership of the '614 patent includes without limitation the exclusive right to
enforce the '614 patent, the exclusive right to file actions based on infringement of the '614 patent, and
the exclusive right to recover damages or other monetary amounts for infringement of the '614 patent
and to be awarded injunctive relief pertaining to the '614 patent. Skechers has owned the '614 patent at
all times during defendants' infringement of the '614 patent.
43. Defendants have been, and presently are, infringing the '614 patent within this judicialdistrict and elsewhere by making and selling shoes that embody the patented invention disclosed in the
'614 patent. Defendants infringement of the '614 patent is willful. Defendants' infringing shoes are
referred to as Pro Player Phaze 2M. Defendants' Pro Player Phaxer 2M shoe is shown above and in
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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Exhibit 6. Defendants will continue to manufacture and sell their Pro Player Phaze 2M shoes unless
enjoined by this Court.
44. The sole bottom and outsole periphery of defendants' Pro Player Phaze 2M shoe soclosely resembles the invention disclosed in the '614 patent that an ordinary observer would be deceived
into purchasing the Pro Player Phaze 2M shoe in the mistaken belief that it includes the invention
disclosed in the '614 patent. Defendants' Pro Player Phaze 2M shoe infringes the '614 patent in violation
of 35 U.S.C. 271 and 289.
45. Due to defendants' infringement of the '614 patent, Skechers has suffered, is suffering,and will continue to suffer irreparable injury for which Skechers has no adequate remedy at law.
Skechers is therefore entitled to a permanent injunction against defendants' further infringing conduct.
Defendants have profited and are profiting from their infringement of the '614 patent and Skechers has
been and is being damaged and losing profit by such infringement. Skechers is therefore entitled to
recover damages from defendants and the total profit derived from such infringement, all in an amount
to be proven at trial.
FOURTH CAUSE OF ACTION
(Design Patent Infringement, Patent No. US D650,980 S)
46. Skechers realleges and incorporates by reference the full text of all of the foregoingnumbered paragraphs, photographs and figures as though each such paragraph, photograph and figure
has been fully set forth hereat.
47. On December 27, 2011, the United States Patent and Trademark Office issued UnitedStates Patent, Patent No. US D650,980 S, the '980 patent. At all times since the date of issue of the '980
patent, Skechers has been, and currently is, the exclusive owner of the entire right, title and interest in
and to the '980 patent. Skechers' ownership of the '980 patent includes without limitation the exclusive
right to enforce the '980 patent, the exclusive right to file actions based on infringement of the '980
patent, and the exclusive right to recover damages or other monetary amounts for infringement of the
'980 patent and to be awarded injunctive relief pertaining to the '980 patent. Skechers has owned the '980
patent at all times during defendants' infringement of the '980 patent.
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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48. Defendants have been, and presently are, infringing the '980 patent within this judicialdistrict and elsewhere by making and selling shoes that embody the patented invention disclosed in the
'980 patent. Defendants infringement of the '980 patent is willful. Defendants' infringing shoes are
referred to as Pro Player Phaze 2M. Defendants' Pro Player Phaxer 2M shoe is shown above and in
Exhibit 6. Defendants will continue to manufacture and sell their Pro Player Phaze 2M shoes unless
enjoined by this Court.
49. The sole bottom and outsole periphery of defendants' Pro Player Phaze 2M shoe soclosely resembles the invention disclosed in the '980 patent that an ordinary observer would be deceived
into purchasing the Pro Player Phaze 2M shoe in the mistaken belief that it includes the invention
disclosed in the '980 patent. Defendants' Pro Player Phaze 2M shoe infringes the '980 patent in violation
of 35 U.S.C. 271 and 289.
50. Due to defendants' infringement of the '980 patent, Skechers has suffered, is suffering,and will continue to suffer irreparable injury for which Skechers has no adequate remedy at law.
Skechers is therefore entitled to a permanent injunction against defendants' further infringing conduct.
Defendants have profited and are profiting from their infringement of the '980 patent and Skechers has
been and is being damaged and losing profit by such infringement. Skechers is therefore entitled to
recover damages from defendants and the total profit derived from such infringement, all in an amount
to be proven at trial.
FIFTH CAUSE OF ACTION
(SKECHERS GO RUN Sole Bottom Trade Dress - Federal Unfair Competition
and Trade Dress Infringement; 15 U.S.C. 1125(a))
51. Skechers realleges and incorporates by reference the full text of all of the foregoingnumbered paragraphs, photographs and figures as though each such paragraph, photograph and figure
has been fully set forth hereat.
52. Skechers has acquired exclusive and protectable trade dress rights embodied in itsSKECHERS GO RUN sole bottom trade dress. By the acts and omissions set forth above, defendants
are violating Lanham Act 43(a), 15 U.S.C. 1125(a) and are unfairly competing with Skechers.
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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Defendants' use in commerce of the SKECHERS GO RUN sole bottom on their Pro Player Phaze 2M
shoe constitutes a false designation of origin and a false and misleading representation of fact which is
likely to cause confusion, and to cause mistake, and to deceive by wrongly suggesting that defendants
Pro Player Phaze 2M shoe has some affiliation, connection, or association with Skechers. Such use by
defendants of their Pro Player Phaze 2M shoe is also likely to cause confusion, and to cause mistake,
and to deceive as to the origin, sponsorship, or approval of defendants' Pro Player Phaze 2M shoe.
Such use by defendants of their Pro Player Phaze 2M shoe constitutes trade dress infringement in
violation of Lanham Act 43(a), 15 U.S.C. 1125(a).
53. Defendants have infringed, and continue to infringe, Skechers' SKECHERS GO RUNsole bottom trade dress. Defendants' Pro Player Phaze 2M shoe infringes Skechers' SKECHERS GO
RUN sole bottom trade dress.
54. Defendants' conduct is likely to cause confusion, mistake and deception among thegeneral purchasing public, and interfere with Skechers' ability to sell and profit from its SKECHERS
GO RUN sole bottom trade dress.
55. Defendants' conduct as described above is also likely to harm or extinguish the currentability of Skechers' SKECHERS GO RUN sole bottom trade dress to indicate that that trade dress
emanates from a single source. Defendants' conduct as described above harms the goodwill and
reputation associated with Skechers SKECHERS GO RUN sole bottom trade dress.
56. Skechers has suffered, is suffering, and will continue to suffer irreparable injury forwhich Skechers has no adequate remedy at law. Skechers is therefore entitled to a permanent injunction
against defendants' further infringing conduct.
57. Defendants have profited and are profiting from such trade dress infringement and unfaircompetition, and Skechers has been and is being damaged and losing profit by such infringement and
unfair competition. Skechers is therefore entitled to recover damages and profits from defendants in an
amount to be proved at trial as a consequence of defendants' violations of Lanham Act 43(a), 15
U.S.C. 1125(a).
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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SIXTH CAUSE OF ACTION
(SKECHERS GO RUN Outsole Periphery Trade Dress - Federal Unfair Competition
and Trade Dress Infringement; 15 U.S.C. 1125(a))
58. Skechers realleges and incorporates by reference the full text of all of the foregoingnumbered paragraphs, photographs and figures as though each such paragraph, photograph and figure
has been fully set forth hereat.
59. Skechers has acquired exclusive and protectable trade dress rights embodied in itsSKECHERS GO RUN outsole periphery trade dress. By the acts and omissions set forth above,
defendants are violating Lanham Act 43(a), 15 U.S.C. 1125(a) and are unfairly competing with
Skechers. Defendants' use in commerce of the SKECHERS GO RUN outsole periphery on their Pro
Player Phaze 2M shoe constitutes a false designation of origin and a false and misleading representation
of fact which is likely to cause confusion, and to cause mistake, and to deceive by wrongly suggesting
that defendants Pro Player Phaze 2M shoe has some affiliation, connection, or association with
Skechers. Such use by defendants of their Pro Player Phaze 2M shoe is also likely to cause confusion,
and to cause mistake, and to deceive as to the origin, sponsorship, or approval of defendants' Pro Player
Phaze 2M shoe. Such use by defendants of their Pro Player Phaze 2M shoe constitutes trade dress
infringement in violation of Lanham Act 43(a), 15 U.S.C. 1125(a).
60. Defendants have infringed, and continue to infringe, Skechers' SKECHERS GO RUNoutsole periphery trade dress. Defendants' Pro Player Phaze 2M shoe infringes Skechers' SKECHERS
GO RUN outsole periphery trade dress.
61. Defendants' conduct is likely to cause confusion, mistake and deception among thegeneral purchasing public, and interfere with Skechers' ability to sell and profit from its SKECHERS
GO RUN outsole periphery trade dress.
62. Defendants' conduct as described above is also likely to harm or extinguish the currentability of Skechers' SKECHERS GO RUN outsole periphery trade dress to indicate that that trade dress
emanates from a single source. Defendants' conduct as described above harms the goodwill and
reputation associated with Skechers SKECHERS GO RUN outsole periphery trade dress.
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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63. Skechers has suffered, is suffering, and will continue to suffer irreparable injury forwhich Skechers has no adequate remedy at law. Skechers is therefore entitled to a permanent injunction
against defendants' further infringing conduct.
64. Defendants have profited and are profiting from such trade dress infringement and unfaircompetition, and Skechers has been and is being damaged and losing profit by such infringement and
unfair competition. Skechers is therefore entitled to recover damages and profits from defendants in an
amount to be proved at trial as a consequence of defendants' violations of Lanham Act 43(a), 15
U.S.C. 1125(a).
SEVENTH CAUSE OF ACTION
(Common Law Unfair Competition)
65. Skechers realleges and incorporates by reference the full text of all of the foregoingnumbered paragraphs, photographs and figures as though each such paragraph, photograph and figure
has been fully set forth hereat.
66. Defendants are willfully, fraudulently, oppressively, maliciously and unlawfullyattempting to pass off, and are passing off, their infringing footwear as those approved and/or authorized
by Skechers.
67. Defendants use in commerce of the Pro Player Phaze 2M shoe continues to confuse anddeceive consumers as to the source of origin of the goods and services for which Skechers has invested
substantial time, effort and money in developing and further damages Skechers' goodwill and reputation
68. Defendants have been palming off their goods as Skechers' goods. Consumers have beenand continue to be confused as to whether defendants Pro Player Phaze 2M shoe is affiliated with
Skechers.
69. The damage suffered by Skechers is irreparable and will continue unless defendants arerestrained by this Court from the commission of these acts.
70. Defendants' willful, deliberate and malicious conduct constitutes unfair competition withSkechers.
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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71. Such conduct by defendants is the sole reason for defendants' ability to market and selltheir unauthorized copies of shoes that embody Skechers' SKECHERS GO RUN sole bottom trade
dress and outsole periphery trade dress.
72. Defendants are being unjustly enriched through such flagrantly unlawful conduct andshould be punished therefor.
73. Skechers has no adequate remedy at law in that the continuing nature of the unfaircompetition will result in irreparable harm to Skechers should defendants not be enjoined from their acts
of unfair competition.
74. A complete recitation of the damages suffered by Skechers as a result of this unfaircompetition must await discovery of defendants' books and records.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II respectfully
demand a judgment against defendants as follows:
1. A judgment declaring that defendants have:a. Infringed Skechers '788, '613, '614 and '980 patents;b. Infringed Skechers SKECHERS GO RUN sole bottom trade dress;c. Infringed Skechers SKECHERS GO RUN outsole periphery trade dress;d. Competed unfairly with Skechers;e. Injured Skechers business reputation by the unauthorized use of Skechers SKECHERS
GO RUN sole bottom trade dress;
f. Injured Skechers business reputation by the unauthorized use of Skechers SKECHERSGO RUN outsole periphery trade dress;
g. Willfully violated the applicable laws of the United States and of the states wheredefendants goods have been sold, all to the detriment of Skechers;
2. That the defendants, their officers, agents, servants, employees, attorneys,assigns and all persons in active concert with or participation with them be forthwith preliminarily and
thereafter permanently enjoined and restrained from:
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COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION ANDTRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
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a. Infringing or inducing infringement of the Skechers '788, '613, '614 and '980 patents;b. Infringing or inducing infringement of Skechers' SKECHERS GO RUN sole bottom
trade dress or Skechers SKECHERS GO RUN outsole periphery trade dress;
c. Using Skechers SKECHERS GO RUN sole bottom trade dress or SkechersSKECHERS GO RUN outsole periphery trade dress, alone or in combination with any
other elements, to advertise or identify defendants' goods or services;
d. Unfairly competing with Skechers in any manner whatsoever;
e. Causing likelihood of confusion, or injury to Skechers business and to the reputation ofSkechers marks, symbols, labels, or forms of advertising or promotion;
f. Engaging in any acts or activities directly or indirectly calculated to trade upon SkechersSKECHERS GO RUN sole bottom trade dress or Skechers SKECHERS GO RUN
outsole periphery trade dress or the reputation or goodwill of Skechers, or in any way to
compete unfairly with Skechers;
3. For a judgment directing that any shoes, goods, labels, emblems or packaging in the
possession or under the control of defendants which infringe the '788, '613, '614 and '980 patents or
any colorable imitation or facsimile thereof, but not emanating from Skechers, be delivered up and
destroyed within 10 days of entry of judgment, and that all instrumentalities used in the production of
such shoes, goods, labels, emblems or packaging, including any and all items, objects, tools, machines,
and equipment used in such production, be delivered up and destroyed within 10 days of entry of
judgment;
4. For a judgment directing defendants to recall all infringing goods and any other materials
sold, distributed, advertised or marketed which infringe any and all of the '788, '613, '614 and '980
patents or any colorable imitation or facsimile thereof, but not emanating from Skechers;
5. For a judgment against defendants awarding Skechers damages, lost profits, reasonable
royalties, and other monetary amounts including without limitation:
a. All damages sustained by Skechers as a result of defendants' unlawful infringement ofthe any and all of the '788, '613, '614 and '980 patents, together with appropriate interest
on such damages and that such damages be trebled, pursuant to 35 U.S.C. 284;
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