Decathlon v. Aloke Hale - Complaint

Case 1:18-cv-00256 Document 1 Filed 06/29/18 Page 1 of 24 PageID #: 1
GOODSILL ANDERSON QUINN & STIFEL

A LIMITED LIABILITY LAW PARTNERSHIP LLP
BRETT R. TOBIN 9490-0

btobin@goodsill.com
First Hawaiian Center
999 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
Telephone: (808) 547-5600
Facsimile: (808) 547-5880
Attorney for Plaintiffs

DECATHLON S.A. and
DECATHLON USA LLC
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DECATHLON S.A. and DECATHLON CIVIL NO. _______________

USA LLC,
Plaintiffs,
COMPLAINT; EXHIBITS A AND
vs. B; SUMMONS
ALOKELE HALE LLC, doing business

as H20 NINJA, and ALEXANDER
KRIVOULIAN,
Defendants.
COMPLAINT
Plaintiffs Decathlon S.A. and Decathlon USA LLC (“Plaintiffs”), by their
undersigned attorneys, for their Complaint against Defendants, Alokele Hale,
6921750.2
doing business as H2O Ninja, and Alexander Krivoulian (collectively
“Defendants”), allege as follows:
NATURE OF THE ACTION AND RELIEF SOUGHT
1. This is an action for trade dress infringement, unfair competition,
deceptive trade practices, trade dress dilution, and design patent infringement,
arising out of Defendants’ marketing and sale of a knock-off of Plaintiffs’ famous
and successful EASYBREATH Snorkeling Mask.
2. Plaintiffs design, market, and sell innovative, quality, affordable
sports equipment and products around the world. One of Plaintiffs’ products is the
well-known and enormously popular EASYBREATH Snorkeling Mask.
3. Long after Plaintiffs’ EASYBREATH Snorkeling Mask—with its
unique distinctive full-face design—achieved prominence, and after Plaintiffs
obtained design patent protection for the design, Defendants began importing and
selling a snorkeling mask that—although virtually identical in appearance to
Plaintiffs’ design—is a poorly-made copy.
4. By selling this knock-off, which Defendants call the H2O Ninja Mask,
Defendants are likely to confuse consumers into believing that Defendants’
product is Plaintiffs’ product, and to cause physical and economic harm to
consumers, given the shoddy quality of Defendants’ product. Further, given the
{F2442449.6 } 2
likelihood of confusion, the sale of Defendants’ product harms Plaintiffs’
reputation and diverts sales from Plaintiffs.
5. To protect their extensive investment and the goodwill they have
established in the EASYBREATH trade dress, Plaintiffs bring this action.
Plaintiffs seek an injunction, an accounting of Defendants’ profits flowing from
their use of the infringing design and trade dress, damages, attorneys’ fees, and
such other and further relief as the Court deems just and proper.
THE PARTIES
6. Plaintiff Decathlon S.A, is a corporation organized and existing under
the laws of France, with a principal place of business at 4, Boulevard de Mons,
Villeneuve d’Ascq France 59650.
7. Plaintiff Decathlon USA LLC is a Limited Liability Company. It was
organized and exists under the laws of Delaware, with a principal place of business
at 2415 3rd street, Suite 231, San Francisco, CA 94107.
8. On information and belief, Defendant Alokele Hale LLC, doing
business as H2O Ninja, is a Limited Liability Company organized and existing
under the laws of Hawaii, with a place of business at 1297 Kukila Street, Honolulu,
Hawaii, 96818.
9. On information and belief, Defendant Alexander Krivoulian owns and
controls Alokele Hale LLC, is its sole member, and profits from its activities.
{F2442449.6 } 3
JURISDICTION AND VENUE
10. This Court has jurisdiction over the subject matter of this action under
Section 39 of the Lanham Act, 15 U.S.C. § 1121, and under Sections 1331,
1338(a) and 1338(b) of the United States Judicial Code, 28 U.S.C. §§ 1331,
1338(a)-(b).
11. This Court has supplemental jurisdiction over Plaintiffs’ state law
claims under Section 1367(a) of the United States Judicial Code, 28 U.S.C.
§ 1367(a).
12. This Court has personal jurisdiction over Defendants because
Defendants are citizens of this district.1
13. Venue is proper in this district pursuant to Section 1391(b) of the
United States Judicial Code, 28 U.S.C. § 1391(b), because a substantial part of the
events at issue and Defendants’ acts of infringement have occurred in this district
and Plaintiffs are suffering harm in this district.
1
An LLC is a citizen of “every state of which its owners/members are citizens.”
Michaels v. Longs Drug Stores Cal., LLC, 2014 WL 5488434, at *2 (D. Haw. Oct.
28, 2014) (quoting Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899
(9th Cir. 2006).
{F2442449.6 } 4
FACTS COMMON TO ALL CLAIMS FOR RELIEF
A. Plaintiffs’ Well-Known EASYBREATH Trade Dress and Design

Patent
14. Plaintiff Decathlon S.A. is one of the largest sporting goods
companies in the world, and Plaintiff Decathlon USA LLC is its United States
distributor.
15. One of Plaintiffs’ most successful products is the innovative,
beautifully-designed, and enormously popular EASYBREATH full face snorkeling
mask, depicted below:
{F2442449.6 } 5
16. The EASYBREATH mask features a clear, full-face lens surrounded
by a rigid frame, a breathing tube centered at the top of the mask (as opposed to a
separate mouth tube used with traditional snorkel masks) and a valve at the bottom
of the mask. The combination of these features makes the mask instantly
recognizable as a Decathlon EASYBREATH mask.
17. Plaintiff Decathlon S.A. is the owner of U.S. Design Patent
No. D775,722 S, entitled “Mask with Snorkel,” for the “ornamental design of a
mask with snorkel,” issued on January 3, 2017. (A copy of this Design Patent is
attached as Exhibit A).
18. In addition to Plaintiffs’ Design Patent rights, Plaintiffs own trade
dress rights in their EASYBREATH mask. Trade dress protects the design of a
product as an indication of origin. In this case, by virtue of the design of the
EASYBREATH mask, and the widespread sale, advertising and promotion of the
mask, the public understands that the trade dress signifies Decathlon S.A. as the
designer and source of the mask.
19. Plaintiffs’ EASYBREATH line sold extremely well throughout the
world before being introduced in the United States. The product is an important
part of Plaintiffs’ launch of retail stores in the United States.
{F2442449.6 } 6
20. In the United States, Plaintiffs’ EASYBREATH mask is sold through
Plaintiff’s website, www.decathlon.com, and in the Decathlon retail store at 735
Market Street, San Francisco, California 94108.
21. Plaintiffs’ EASYBREATH trade dress has become famous.
22. The striking and distinctive nature of the EASYBREATH trade dress
ensures that, even from far away, consumers will recognize and be drawn to the
product.
23. The combination of elements that make up the EASYBREATH trade
dress is not functional for purposes of Section 43(a)(3) of the Lanham Act, 15
U.S.C. § 1125(a)(3), as it is not essential to the use or purpose of the products, does
not affect the cost or quality of products, and, when used exclusively by Plaintiffs,
does not put Plaintiffs’ competitors at a significant non-reputation-related
disadvantage.
24. As a result of Plaintiffs’ substantial effort and investment and the
success of Plaintiffs’ products bearing the EASYBREATH trade dress, Plaintiffs’
EASYBREATH trade dress has acquired “secondary meaning” in that it has
become distinctive and instantly recognizable to the public as a symbol exclusively
denoting Plaintiffs and signaling the high quality of their products. The
EASYBREATH trade dress achieved this status long before Defendants first began
their infringing activities, described below.
{F2442449.6 } 7
25. The EASYBREATH trade dress represents enormous goodwill of
Plaintiffs and is a tremendously valuable asset of Plaintiffs.
26. Based on Plaintiffs’ extensive use, marketing and promotion of goods
bearing the EASYBREATH trade dress, Plaintiffs own common law rights in the
EASYBREATH trade dress in connection with their product.
B. Defendants’ Unlawful Use of Plaintiffs’ Trade Dress
27. Long after Plaintiffs obtained exclusive rights in the EASYBREATH
trade dress, Defendants—in a blatant attempt to trade off the renown of the
EASYBREATH line and to confuse consumers—began marketing its H2O Ninja
knock-off mask (the “Infringing Mask”) using a design confusingly similar to that
used by Plaintiffs for their genuine EASYBREATH mask.
28. On a visual comparison, the Infringing Mask is nearly identical to
Plaintiffs’ iconic EASYBREATH mask, as shown below:
{F2442449.6 } 8
EASYBREATH Mask H2O Ninja Mask
29. Just like the EASYBREATH mask, the Infringing Mask has a clear,
full-face lens surrounded by a rigid frame, a breathing tube centered at the top of
the mask (as opposed to a separate mouth tube used with traditional snorkel
masks), and a valve at the bottom of the mask.
30. Thus, Defendants’ Infringing Mask mimics every key element of the
famous and distinctive EASYBREATH trade dress, and is substantially similar to the
design shown in Plaintiffs’ Design Patent.
31. Defendants’ use of Plaintiffs’ patented design and trade dress clearly
seeks to mislead consumers into believing that the Infringing Mask and Plaintiffs’
EASYBREATH mask are one and the same; or that the Infringing Mask is made,
{F2442449.6 } 9
approved, sponsored, or endorsed by Plaintiffs; or that the two companies are
somehow connected. This confusion will occur not only at the point of sale, but
also post-sale.
32. On information and belief, Defendants have imported, advertised,
offered for sale, and sold the Infringing Mask in the United States, including in this
judicial district.
33. On information and belief, Defendants intentionally target and seek to
sell the Infringing Mask to Plaintiffs’ customers and potential customers and
consumers who are familiar with Plaintiffs’ well-known EASYBREATH trade
dress.
34. Defendants have never been associated or affiliated with or licensed
by Plaintiffs in any way, and the Infringing Mask is not made by, affiliated with,
sponsored by, or endorsed by Plaintiffs.
35. Customer comments on the Amazon.com website show that the
Infringing Mask is of poor quality. Some examples are:
 “During the first day out in the water between swims one of the flappy
valves fell out allowing the water coming in the top to gather around
my mouth drowning me.”
{F2442449.6 } 10
 “Misleading description. I’m an experienced snorkler [sic] and in fine
cardiovascular condition. The design of the mask made breathing a
challenge. . . . Really terrible customer service.”
 “I bought this mask early for Christmas last year and now is when my
daughter first started using it. Something is wrong with it because
water is leaking inside into the mask when she submerges her head
entirely under water.”
 “Cannot recommend this mask, could not manage the fogging, worst
ever experience and a full day of snorkeling the Dry Tortugas was
lost.”
 “It sucks.”
(Printouts of these comments are attached as Exhibit B). Because of the poor quality
of the Infringing Mask, it poses a consumer health and safety threat and consumers
will be harmed by having wasted their money on it.
36. Moreover, Plaintiffs’ reputation is likely to be damaged and they are
likely to lose sales as a result of post-sale confusion. For example, a snorkeler who
sees a friend using what appears to be the EASYBREATH mask (but is really the
Infringing Mask), and hears the friend complaining about the product, may say to
{F2442449.6 } 11
herself, “I will never buy an EASYBREATH mask.” The harm to Plaintiffs is
obvious.
37. On information and belief, Defendants use the infringing trade dress
to pass off their goods as Plaintiffs’ and otherwise to benefit from the recognition
and goodwill of Plaintiffs’ famous EASYBREATH trade dress. On information
and belief, Defendants’ conduct is calculated to confuse and mislead consumers,
create a false impression as to the source and sponsorship of Defendants’ Infringing
Mask, divert business from Plaintiffs, pass off the Infringing Mask as authorized and
endorsed by Plaintiffs, and otherwise falsely misrepresent the nature and quality of
Defendants’ product and misappropriate the goodwill associated with Plaintiffs and
their EASYBREATH trade dress.
38. On information and belief, Defendants began using and are using the
infringing trade dress with full knowledge of Plaintiffs’ prior exclusive rights, with
knowledge of the reputation and goodwill of the EASYBREATH trade dress, and
with knowledge that the trade dress is associated exclusively with Plaintiffs and
Plaintiffs’ goods.
39. The goodwill that Plaintiffs have built up in the EASYBREATH trade
dress is put at risk by Defendants’ sale of the Infringing Mask. Defendants’
continued use of a trade dress nearly identical to that of the EASYBREATH mask
in connection with a competing business is likely to cause confusion in the
{F2442449.6 } 12
marketplace, because purchasers and potential purchasers will assume that the
Infringing Mask sold by Defendants emanates from or is authorized by, licensed
by, endorsed by, associated with, or otherwise connected with Plaintiffs and/or
Plaintiffs’ goods. By virtue of Defendants’ use of a nearly identical trade dress,
potential purchasers will assume, incorrectly, that the infringing goods are
Plaintiffs’.
40. Defendants’ use of a trade dress that so closely resembles Plaintiffs’
EASYBREATH trade dress unfairly and unlawfully wrests from Plaintiffs control
over their reputation.
41. Defendants’ unauthorized acts as described herein have caused and
will continue to cause irreparable damage to Plaintiffs’ business and goodwill
unless restrained by this Court.
42. Plaintiffs have no adequate remedy at law.
FIRST CLAIM FOR RELIEF: DESIGN PATENT INFRINGEMENT

35 U.S.C. § 271) (Patent No. D755,722S)
43. Plaintiffs repeat and reallege the allegations set forth in the paragraphs
above as if fully set forth herein.
44. Plaintiff Decathlon S.A. owns U.S. Design Patent Number No.
D775,722 S (the “’722 Patent”), which is valid and subsisting.
{F2442449.6 } 13
45. Defendants, without authorization from Plaintiff, have manufactured,
imported distributed, advertised, promoted, offered for sale and sold snorkel masks
bearing a design that substantially resembles each design claimed in the ’722
Patent. Defendants have known of the Patent since at least April 17, 2017.
46. An ordinary observer, giving such attention as a purchaser usually
gives, would find the design of Defendants’ Infringing Mask to be substantially the
same as Plaintiff’s patented design.
47. By the foregoing acts, Defendants have directly infringed, infringed
under the doctrine of equivalents, contributorily infringed, and/or induced
infringement of, and continue to so infringe, the ’722 Patent.
48. On information and belief, the foregoing acts of infringement by
Defendants have been willful, intentional, and in bad faith, and with knowledge of
Plaintiff’s exclusive patent rights. Defendants’ acts constitute violations of Section
271 of the Patent Act, 35 U.S.C. § 271.
49. By adopting and using a colorable imitation of the patented design of
the EASYBREATH mask, Defendants have caused and are causing substantial
irreparable harm to Plaintiff and will continue to damage Plaintiff unless enjoined
by this Court.
50. Plaintiff has no adequate remedy at law.
{F2442449.6 } 14
SECOND CLAIM FOR RELIEF – FEDERAL

TRADE DRESS INFRINGEMENT (15 U.S.C. § 1125(a))
52. The EASYBREATH trade dress is used in commerce, is not
functional, is inherently distinctive, and has acquired secondary meaning in the
marketplace.
53. Defendants’ Infringing Mask, which is now being used in commerce,
features a trade dress that is confusingly similar to the EASYBREATH trade dress
and is being marketed through a scheme designed to confuse consumers.
54. Defendants’ manufacture, importation, distribution, sale and
promotion of the Infringing Mask is likely to cause confusion and mistake and to
deceive consumers as to the source, origin or sponsorship of the Defendants’
product.
55. Defendants chose to use the trade dress of the Infringing Mask with
knowledge of Plaintiffs’ prior use of and rights in the well-known and distinctive
EASYBREATH trade dress. On information and belief, Defendants have used the
Infringing Mask trade dress in commerce with the intent to cause confusion, to
cause mistake, or to deceive.
{F2442449.6 } 15
56. Defendants’ actions constitute willful trade dress infringement in
violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
THIRD CLAIM FOR RELIEF – FEDERAL

UNFAIR COMPETITION (15 U.S.C. § 1125(a))
58. Defendants’ use of the EASYBREATH trade dress on the Infringing
Mask constitutes a false designation of origin and a false representation as to the
origin of Defendants’ goods, is likely to cause confusion, mistake, or deception as
to the source of Defendants’ goods, and is likely to create the false impression that
Defendants’ goods are authorized, sponsored, endorsed, licensed by, or affiliated
with Plaintiffs.
59. On information and belief, Defendants chose to use the trade dress of
the Infringing Mask with knowledge of Plaintiffs’ prior use of, and rights in, the
EASYBREATH trade dress. On information and belief, Defendants used the trade
dress of the Infringing Mask in commerce with the intent to cause confusion, to
cause mistake, or to deceive.
60. Defendants’ actions constitute unfair competition, in violation of
Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
{F2442449.6 } 16
FOURTH CLAIM FOR RELIEF

UNFAIR COMPETITION UNDER COMMON LAW
62. Defendants’ conduct complained of herein is likely to confuse the
public as to the origin, source or sponsorship of Defendants’ goods, or to cause
mistake or to deceive the public into believing that Defendants’ goods are made,
authorized, sponsored, endorsed, licensed by, or affiliated with Plaintiffs, in
violation of Plaintiffs’ rights in the EASYBREATH trade dress under the common
law.
63. On information and belief, Defendants chose to use the trade dress of
the Infringing Mask with knowledge of Plaintiffs’ prior use of, and rights in, the
EASYBREATH trade dress in connection with snorkel. By adopting and using a
colorable imitation of the valuable and distinctive EASYBREATH trade dress,
Defendants have been unjustly enriched and Plaintiffs have been damaged.
64. By misappropriating and trading on the goodwill and business
reputation represented by the EASYBREATH trade dress, Defendants have been
and, unless enjoined by this Court, will continue to be unjustly enriched at Plaintiffs’
expense.
{F2442449.6 } 17
65. Defendants’ use of a trade dress nearly identical to the EASYBREATH
trade dress in connection with the Infringing Mask constitutes unfair competition
under the common law.
66. Defendants’ conduct has caused and is causing immediate and
irreparable injury to Plaintiffs and will continue to injure Plaintiffs and injure and
deceive the public, unless enjoined by this Court.
FIFTH CLAIM FOR RELIEF

VIOLATION OF HAWAII DECEPTIVE
AND UNFAIR TRADE PRACTICES ACT
(Hawaii Revised Statutes § 480-2)
69. Defendants’ use of the trade dress of the Infringing Mask has the
capacity to deceive and is deceiving the public as to the source of sponsorship of
Defendants’ goods. As a result, the public will be damaged.
70. Defendants’ conduct is willful and in knowing disregard of Plaintiffs’
rights.
71. Defendants have been and are engaged in unfair methods of
competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce in violation of Hawaii Revised Statutes § 480-2.
{F2442449.6 } 18
irreparable injury to Plaintiffs and will continue to both damage Plaintiffs and
deceive the public unless enjoined by this Court.
SIXTH CLAIM FOR RELIEF

VIOLATION OF HAWAII UNIFORM
DECEPTIVE TRADE PRACTICE ACT
(Hawaii Revised Statutes § 481A-3)
75. In the course of their business, Defendants’ pass off the Infringing
Mask as those of Plaintiffs; cause likelihood of confusion or of misunderstanding
as to the source, sponsorship, approval, or certification of the Infringing Mask; and
cause likelihood of confusion or of misunderstanding as to affiliation, connection,
or association with, or certification by, Plaintiffs.
76. Defendants have been and are engaged in deceptive trade practices in
violation of Hawaii Revised Statute § 481A-3.
irreparable injury to Plaintiffs and will continue to both damage Plaintiffs and
deceive the public unless enjoined by this Court.
{F2442449.6 } 19
WHEREFORE, Plaintiffs respectfully demand judgment as follows:
(1) That an injunction be issued enjoining Defendants, their officers,
agents, directors, shareholders, principals, licensees, distributors, dealers,
attorneys, servants, employees, affiliates, subsidiaries, and assigns, and all those
persons in concert or participation with any of them from:
a. manufacturing, importing, distributing, shipping, advertising,
marketing, promoting, selling or otherwise offering for sale the
Infringing Mask or any product bearing the trade dress of the
Infringing Mask or in any other trade dress that is confusingly similar
to the EASYBREATH trade dress;
b. conducting any activities in the United States that relate to,
refer to or concern the advertising, promotion, manufacture, production,
importation, distribution, displaying, sale or offering for sale of snorkel
masks, in any media or format, using the trade dress of the Infringing
Mask or any other dress that is a simulation, reproduction, copy,
colorable imitation or confusingly similar variation of the
EASYBREATH trade dress;
c. using any false designation of origin or false description
(including, without limitation, any trade dress), or performing any act,
which can, or is likely to, lead members of the trade or public to
{F2442449.6 } 20
believe that any goods manufactured, imported, advertised, promoted,
distributed, displayed, produced, sold or offered for sale by
Defendants, are in any manner associated or connected with Plaintiffs,
or are authorized, licensed, sponsored or otherwise approved by
Plaintiffs;
d. infringing the ’722 Patent or inducing or contributing to such
infringement;
e. engaging in any other activity constituting unfair competition
with Plaintiffs, or constituting an infringement of the EASYBREATH
trade dress;
f. applying to register or registering in the United States Patent
and Trademark Office or in any state trademark registry the trade
dress of the Infringing Mask, or any other trade dress consisting in
whole or in part of any simulation, reproduction, copy or colorable
imitation of the EASYBREATH trade dress, for snorkel masks or any
goods related to the foregoing;
g. diluting or tarnishing Plaintiffs’ EASYBREATH trade dress;
h. assisting, aiding or abetting any other person or business entity
in engaging in or performing any of the activities referred to in
subparagraphs (a) through (g) above;
{F2442449.6 } 21
(2) That Defendants and those acting in concert or participation with them
(including, but not limited to, their officers, directors, agents, distributors, dealers,
servants, employees, representatives, attorneys, subsidiaries, related companies,
successors, and assigns) take affirmative steps to dispel such false impressions that
heretofore have been created by their use of the trade dress of Infringing Mask,
including, but not limited to, delivering to Plaintiffs’ attorneys for destruction or
other disposition all goods, labels, tags, signs, stationery, prints, packages,
promotional and marketing materials, advertisements and other materials (a)
currently in Defendants’ possession, custody, or control, or (b) recalled by
Defendants pursuant to any order of the Court or otherwise, incorporating,
featuring or bearing the trade dress of the Infringing Mask or any other simulation,
reproduction, copy or colorable imitation of the EASYBREATH trade dress in
connection with any products;
(3) Directing Defendants to deliver to Plaintiffs’ attorneys an accounting
of all profits earned on the Infringing Mask;
(4) Directing such other relief as the Court may deem appropriate to
prevent the public from deriving the erroneous impression that any product
manufactured, imported, advertised, promoted, distributed, displayed, produced,
sold or offered for sale by or on behalf of Defendants is in any manner authorized
by Plaintiffs or related in any way to Plaintiffs;
{F2442449.6 } 22
(5) Directing Defendants to file with the Court and serve on Plaintiffs’
counsel within thirty (30) days after entry of judgment a report in writing under
oath, setting forth in detail the manner and form in which they have complied with
the above;
(6) Awarding Plaintiffs such damages they have sustained or will sustain
by reason of Defendants’ acts of trade dress infringement and unfair competition
and that such sums be trebled pursuant to 15 U.S.C. § 1117;
(7) Awarding Plaintiffs such damages they have sustained or will sustain
by reason of Defendants’ acts of design patent infringement, pursuant to 35 U.S.C.
§§ 284 and 289.
(8) Awarding Plaintiffs all gains, profits, property and advantages derived
by Defendants from Defendants’ unlawful conduct and that such profits be
enhanced pursuant to 15 U.S.C. § 1117;
(9) Awarding to Plaintiffs exemplary and punitive damages to deter any
further willful infringement as the Court finds appropriate;
(10) Awarding to Plaintiffs their costs and disbursements incurred in this
action, including reasonable attorneys’ fees pursuant to 15 U.S.C. § 1117(a) and 35
U.S.C. § 285;
(11) Awarding to Plaintiffs interest, including pre-judgment interest, on the
foregoing sums; and
{F2442449.6 } 23
(12) Awarding to Plaintiffs such other and further relief as the Court may
deem just and proper.
DATED: Honolulu, Hawaii, June 29, 2018.
/s/ Brett R. Tobin

BRETT R. TOBIN
Attorney for Plaintiffs
DECATHLON S.A. and DECATHLON
USA LLC
{F2442449.6 } 24
Case 1:18-cv-00256 Document 1-1 Filed 06/29/18 Page 1 of 16 PageID #: 25
EXHIBIT A
EXHIBIT B
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT

for the
District
__________ of Hawaii
District of __________
DECATHLON S.A. and DECATHLON USA LLC )

)
)
)
Plaintiff(s) )
)
v. Civil Action No.
)
ALOKELE HALE LLC, doing business as H20 NINJA, )
and ALEXANDER KRIVOULIAN )
)
)
Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) ALOKELE HALE LLC, doing business as H20 NINJA
1297 Kukila Street, Honolulu, Hawaii 96818
ALEXANDER KRIVOULIAN
1297 Kukila Street, Honolulu, Hawaii 96818
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: Brett R. Tobin
Goodsill Anderson Quinn & Stifel
999 Bishop Street, Suite 1600
Honolulu, Hawaii 96813
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) .
u I personally served the summons on the individual at (place)

on (date) ; or
u 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
u 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
u I returned the summons unexecuted because ; or
u Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
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:

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Case 1:18-cv-00256 Document 1 Filed 06/29/18 Page 1 of 24 PageID #: 1

GOODSILL ANDERSON QUINN & STIFEL

BRETT R. TOBIN 9490-0

Attorney for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

DECATHLON S.A. and DECATHLON CIVIL NO. _______________

ALOKELE HALE LLC, doing business

Plaintiffs Decathlon S.A. and Decathlon USA LLC (“Plaintiffs”), by their

undersigned attorneys, for their Complaint against Defendants, Alokele Hale,

doing business as H2O Ninja, and Alexander Krivoulian (collectively

“Defendants”), allege as follows:

NATURE OF THE ACTION AND RELIEF SOUGHT

1. This is an action for trade dress infringement, unfair competition,

arising out of Defendants’ marketing and sale of a knock-off of Plaintiffs’ famous

and successful EASYBREATH Snorkeling Mask.

2. Plaintiffs design, market, and sell innovative, quality, affordable

well-known and enormously popular EASYBREATH Snorkeling Mask.

3. Long after Plaintiffs’ EASYBREATH Snorkeling Mask—with its

unique distinctive full-face design—achieved prominence, and after Plaintiffs

selling a snorkeling mask that—although virtually identical in appearance to

Plaintiffs’ design—is a poorly-made copy.

Defendants are likely to confuse consumers into believing that Defendants’

product is Plaintiffs’ product, and to cause physical and economic harm to

likelihood of confusion, the sale of Defendants’ product harms Plaintiffs’

reputation and diverts sales from Plaintiffs.

5. To protect their extensive investment and the goodwill they have

established in the EASYBREATH trade dress, Plaintiffs bring this action.

Plaintiffs seek an injunction, an accounting of Defendants’ profits flowing from

6. Plaintiff Decathlon S.A, is a corporation organized and existing under

the laws of France, with a principal place of business at 4, Boulevard de Mons,

Villeneuve d’Ascq France 59650.

7. Plaintiff Decathlon USA LLC is a Limited Liability Company. It was

at 2415 3rd street, Suite 231, San Francisco, CA 94107.

8. On information and belief, Defendant Alokele Hale LLC, doing

business as H2O Ninja, is a Limited Liability Company organized and existing

9. On information and belief, Defendant Alexander Krivoulian owns and

JURISDICTION AND VENUE

12. This Court has personal jurisdiction over Defendants because

Defendants are citizens of this district.1

13. Venue is proper in this district pursuant to Section 1391(b) of the

and Plaintiffs are suffering harm in this district.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

A. Plaintiffs’ Well-Known EASYBREATH Trade Dress and Design

15. One of Plaintiffs’ most successful products is the innovative,

beautifully-designed, and enormously popular EASYBREATH full face snorkeling

mask, depicted below:

16. The EASYBREATH mask features a clear, full-face lens surrounded

recognizable as a Decathlon EASYBREATH mask.

17. Plaintiff Decathlon S.A. is the owner of U.S. Design Patent

attached as Exhibit A).

18. In addition to Plaintiffs’ Design Patent rights, Plaintiffs own trade

product as an indication of origin. In this case, by virtue of the design of the

designer and source of the mask.

19. Plaintiffs’ EASYBREATH line sold extremely well throughout the

part of Plaintiffs’ launch of retail stores in the United States.

20. In the United States, Plaintiffs’ EASYBREATH mask is sold through

Plaintiff’s website, www.decathlon.com, and in the Decathlon retail store at 735

Market Street, San Francisco, California 94108.

21. Plaintiffs’ EASYBREATH trade dress has become famous.

23. The combination of elements that make up the EASYBREATH trade

does not put Plaintiffs’ competitors at a significant non-reputation-related

24. As a result of Plaintiffs’ substantial effort and investment and the

success of Plaintiffs’ products bearing the EASYBREATH trade dress, Plaintiffs’