ALO v. Tonic Active - Complaint

Case 2:20-cv-04858 Document 1 Filed 06/01/20 Page 1 of 12 Page ID #:1
1 Andrew P. Holland/Bar No. 224737

aholland@thoits.com
2 Misasha S. Graham/Bar No. 237187
mgraham@thoits.com
3 Dinah X. Ortiz/Bar No. 273556
dortiz@thoits.com
4 THOITS LAW
A Professional Corporation
5 400 Main Street, Suite 250
Los Altos, California 94022
6 Telephone: (650) 327-4200
Facsimile: (650) 325-5572
7
Attorneys for Plaintiff
8 ALO, LLC.
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
WESTERN DIVISION
12
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
13 ALO, LLC a California limited No.

liability company,
(650) 327-4200
THOITS LAW
14 COMPLAINT FOR:
Plaintiff,
15 1. PATENT INFRINGEMENT
v.
16
TONIC ACTIVE, INC., a 2. UNFAIR COMPETITION
17 Canadian corporation; EVOLVE
FIT WEAR, LLC, an Oregon
18 limited liability company; and DEMAND FOR JURY TRIAL
DOES 1 through 10, inclusive,
19
Defendants.
20
21 Plaintiff ALO, LLC (“ALO”) alleges against defendants Tonic Active, Inc.
22 (“Tonic Active”), Evolve Fit Wear, LLC (“Evolve Fit Wear”), and Does 1 through 10
23 (collectively, “Defendants”), as follows:
24 NATURE OF THE CASE
25 1. This is an action at law and in equity for patent infringement and unfair
26 competition, arising under 35 U.S.C. section 271 et seq. and common law unfair
10965.004/1375518v2 1
COMPLAINT
1 competition.
2 2. ALO owns the trademarks ALO® and ALO Yoga® (collectively, “ALO
3 Yoga”), and makes a well-known and exceedingly popular line of athletic wear
4 designed for both athletic and non-athletic settings. This line includes, among other
5 distinctive designs, ALO’s Goddess Legging (“Goddess Legging”), which is at issue
6 in this case.
7 3. Tonic Active, without authorization, is copying ALO’s distinctive
8 Goddess Legging design and, as a result, is offering for sale and selling products
9 through online retailers such as Evolve Fit Wear that are confusingly similar to the
10 Goddess Legging. Defendants’ products are not manufactured by ALO and are not
11 connected to or endorsed by ALO in any way. As a result, Defendants are infringing
12 ALO’s patent on the Goddess Legging. In addition, Defendants’ merchandise is
13 likely to cause confusion in the marketplace and to deceive consumers and the public
(650) 327-4200
THOITS LAW
14 regarding its source.

15 PARTIES
16 4. Plaintiff ALO, LLC is a California corporation with its principal place
17 of business at 6670 Flotilla Street, Commerce, California, 90040.
18 5. On information and belief, Defendant Tonic Active, Inc. is a Canadian
19 corporation with its principal place of business at 3740 William Street, Burnaby, BC,
20 V5C 3H7, Canada.
21 6. On information and belief, Defendant Evolve Fit Wear, Inc. is an Oregon
22 limited liability company with its principal place of business at 522 N. Thompson
23 Street, Ste. 21, Portland, OR 97214.
24 7. The true names and capacities of defendants sued herein as Does 1
25 through 10, inclusive, are unknown to Plaintiff and Plaintiff therefore sues these
26 defendants by such fictitious names. Plaintiff will amend this complaint to allege
10965.004/1375518v2 2
COMPLAINT
1 their true names and capacities when ascertained.

2 8. On information and belief, Defendants purposefully directed business
3 activities toward consumers residing in this judicial district, including but without
4 limitation by offering for sale, selling, and entering into sales contracts for their
5 infringing products with residents of this judicial district, and calculating and
6 collecting California sales tax on sales of the infringing products to residents of this
7 judicial district.
8 9. By engaging in the activities set forth herein, Defendants have
9 purposefully availed themselves of the privilege of conducting activities in this forum,
10 thereby invoking the benefits and protections of the laws of the State of California,
11 and of this judicial district in particular.
12 JURISDICTION AND VENUE
13 10. This action arises under 35 U.S.C. section 271 et seq. and common law
(650) 327-4200
THOITS LAW
14 unfair competition. This Court has subject matter jurisdiction over this action
15 pursuant to 28 U.S.C. sections 1331 and 1338, as ALO’s claims arise under the Patent
16 Act. This Court has supplemental jurisdiction pursuant to 28 U.S.C. sections 1338(b)
17 and 1367 over ALO’s claims arising under the laws of the State of California.
18 11. This Court has personal jurisdiction over Defendants as, on information
19 and belief, Tonic Active is doing business in this judicial district through its
20 contracted retailers such as Evolve Fit Wear (www.evolvefitwear.com) through
21 which it advertises and sells goods that infringe ALO’s design patent to consumers
22 residing in this judicial district, thereby invoking the benefits and protections of the
23 laws of this judicial district.
24 12. Defendants have distributed or sold infringing merchandise within this
25 judicial district, have manufactured or distributed products used or consumed within
26 this judicial district in the ordinary course of trade, or have otherwise made or
10965.004/1375518v2 3
COMPLAINT
1 established contacts within this judicial district sufficient to permit the exercise of
2 personal jurisdiction. Venue is proper in this judicial district under 28 U.S.C. section
3 1391(b)(2) as, on information and belief, a substantial part of the events, omissions
4 and acts causing injury that are the subject matter of this action arise out of or relate
5 to Defendants’ activities within this judicial district.
6 FACTUAL ALLEGATIONS
7 13. ALO’s innovative concept of creating an exercise pant with integrated
8 legwarmer revolutionized the athletic wear market when it was first marketed and
9 quickly became one of the hallmarks of ALO’s brand, known for its distinctive
10 appearance and ornamental legwarmer design. ALO first marketed this brand in
11 conjunction with its patent predecessor in interest, Color Image Apparel, Inc.
12 (“CIA”).
13 14. On September 6, 2016, the United States Patent and Trademark Office
(650) 327-4200
THOITS LAW
14 duly and legally issued United States Design Patent No. US D765,346 S (the “’346
15 Patent”), which covers products sold under ALO’s “Goddess Legging” collection. A
16 true and correct copy of the ’346 Patent is attached hereto as Exhibit A. CIA was the
17 original owner of the entire right, title, and interest in and to the ’346 Patent. CIA
18 assigned the ’346 Patent to ALO on October 18, 2018. CIA and ALO owned the
19 ’346 Patent throughout the period of Defendant’s infringing acts. ALO still owns
20 the ’346 Patent.
21 15. Certain Tonic Active leggings marketed by Evolve Fit Wear under the
22 “Celestina” name infringe the ’346 Patent (collectively, the “Accused Products”).
23 True and correct copies of photographs of the infringing Accused Products as
24 displayed on Evolve Fit Wear’s website (https://evolvefitwear.com/) are attached
25 hereto as Exhibit B.
26 16. The overall appearance and design of the invention embodied in the
10965.004/1375518v2 4
COMPLAINT
1 ’346 Patent and the corresponding design of the infringing Accused Products are
2 substantially the same.
3 17. On information and belief, an ordinary observer will perceive the overall
4 appearance of the design of the invention embodied in the ’346 Patent and the
5 corresponding designs of Defendants’ infringing Accused Products to be
6 substantially the same.
7 18. Table 1, below, shows side-by-side comparisons of the ’346 Patent
8 design (left), with the infringing Celestina leggings (right). A copy of Table 1 is also
9 attached as Exhibit C.
10
11
Table 1: Comparison of ’346 Patent
12
and Defendant’s Infringing Fusions Leggings
13
’346 Patent Figures Defendant’s Infringing Leggings
(650) 327-4200
THOITS LAW
14
15
16
17
18
19
20
21
22
23
24
25
26
10965.004/1375518v2 5
COMPLAINT
10
11
12
13
(650) 327-4200
THOITS LAW
14
15
16
17
18
19
20
21
22
23
24 19. Evolve Fit Wear offers for sale and sells the Accused Products to
25 customers in the United States through its website and social media ads, and acts as a
26 contracted retailer to Tonic Active, who designs and manufactures the Accused
Products. Furthermore, Defendants indirectly infringe the ’346 Patent because its
10965.004/1375518v2 6
COMPLAINT
1 customers use the Accused Products.

2 20. Upon information and belief, Defendants offer to sell and sell the
3 Accused Products to retailers and customers with the specific intent to induce
4 infringement of the ’346 Patent.
5 21. Upon information and belief, Defendants had knowledge that the
6 Accused Products are especially made or especially adapted for use in an infringement
7 of the ’346 Patent and is not a staple article or commodity of commerce suitable for
8 substantial non-infringing use.
9 22. Defendants have infringed and is still infringing, directly and indirectly,
10 the ’346 Patent by making, using, offering to sell, selling and/or importing athletic
11 leggings that embody the ’346 Patent including, but not limited to, the Accused
12 Products.
13 23. ALO has been manufacturing, advertising, and selling the Goddess
(650) 327-4200
THOITS LAW
14 Legging for both athletic and non-athletic use. The Goddess Legging
15 revolutionized the area of sports leggings due to the total image and overall
16 appearance of its design, as it married the athletic nature of leggings with the
17 aesthetic of more ballet-inspired pants with distinctive, non-functional attributes
18 such as a flat front panel at the top of the leggings and a loose panel at the bottom
19 of the leg which gives the appearance of an integrated leg warmer.
20 24. On information and belief, Defendants are, and will continue to
21 manufacture, distribute, advertise, sell and offer for sale its unauthorized products in
22 this judicial district and throughout the United States unless enjoined by this Court.
23 25. The products manufactured, distributed, offered for sale and sold by
24 Defendants are not manufactured by ALO, nor are Defendants associated or
25 connected with ALO, or licensed, authorized, endorsed or approved by ALO in any
26 way.
10965.004/1375518v2 7
COMPLAINT
1 26. Upon information and belief, Evolve Fit Wear became aware of the
2 infringement allegations and the ‘346 Patent at least as early as September 19, 2019,
3 after a cease and desist letter was sent to Evolve Fit Wear by ALO’s counsel. A true
4 and correct copy of this letter is attached as Exhibit D.
5 27. In response to the letter discussed in Paragraph 26, Evolve Fit Wear
6 sent an email response stating that they were “just the reseller” and that Tonic
7 Active was the manufacturer of the infringing product. Upon information and
8 belief, after further questioning from ALO’s counsel, Evolve Fit Wear noted that
9 they had only sold three pairs of the infringing leggings, as they “aren’t a very big
10 brand for us.” A true and correct copy of this email chain is attached as Exhibit E.
11 28. Upon information and belief, Evolve Fit Wear’s Tonic Active
12 dedicated product page, in contrast to what was claimed by Evolve Fit Wear via
13 email to ALO’s counsel, states: “Tonic Clothing | #1 Store Online at Evolve Fit
(650) 327-4200
THOITS LAW
14 Wear” in the tab header. As of the date of filing of this complaint, Evolve Fit Wear
15 had three different colors of the Celestina legging available for sale on its website.
16 A true and correct copy of this website landing page is attached as Exhibit F.
17 29. Upon information and belief, Tonic Active became aware of the
18 infringement allegations and the ’346 Patent at least as early as September 26, 2019
19 after a cease and desist letter was sent to Tonic Active by ALO’s counsel. A true and
20 correct copy of this letter is attached as Exhibit G.
21 30. As of the date of this Complaint, ALO has received no response to its
22 letter from Tonic Active.
23 ///
24 ///
25 ///
26 ///
10965.004/1375518v2 8
COMPLAINT
1 FIRST CLAIM FOR RELIEF

2 (Patent Infringement – 35 U.S.C. §271)
3 31. ALO repeats and incorporates by this reference each and every allegation
4 contained in paragraphs 1 through 26 above, inclusive, as though set forth in full.
5 32. Defendants, without authorization from ALO, have made, used, offered
6 for sale, sold, and/or imported in or into the United States, and continue to make, use,
7 offer for sale, sell, and/or import in or into the United States, leggings having a design
8 that infringes the ’346 Patent.
9 33. ALO has been and will continue to be irreparably harmed by Defendants’
10 infringement of the ’346 Patent.
11 SECOND CLAIM FOR RELIEF
12 (Unfair Competition)
13 34. ALO repeats and incorporates by this reference each and every allegation
(650) 327-4200
THOITS LAW
14 contained in paragraphs 1 through 29 above, inclusive, as though set forth in full.

15 35. Defendants’ unauthorized actions and conduct as alleged herein
16 constitute unfair competition under California common law, and have created and will
17 continue to create a likelihood of confusion and irreparable harm, damage, and injury
18 to ALO, including but not limited to injury to ALO's goodwill and business
19 reputation, unless restrained and enjoined by this Court.
20 36. On information and belief, Defendants’ unfair competition with ALO
21 was, and is, done with full knowledge of ALO’s statutory and common law rights and
22 without regard to the likelihood of confusion to the public created by Tonic Active’s
23 activities.
24 37. Defendants have caused and, unless restrained and enjoined by this
25 Court, will continue to cause irreparable harm, damage and injury to ALO, including
26 but not limited to injury to ALO’s goodwill and business reputation.
10965.004/1375518v2 9
COMPLAINT
1 38. As a result of Defendants’ acts, ALO has suffered, is suffering, and will
2 continue to suffer irreparable injury for which ALO has no adequate remedy at law.
3 ALO is therefore entitled to a permanent injunction against further infringing conduct
4 by Defendants.
5 PRAYER
6 WHEREFORE, Plaintiff prays for an order and judgment against Defendants
7 and requests relief as follows:
8 1. A determination that this action is an exceptional case pursuant to the
9 Patent Act;
10 2. A determination that Defendants have infringed the ‘346 Patent;
11 3. That Defendants and its officers, directors, partners, agents, servants,
12 employees, attorneys, confederates, and all persons acting for, with, by, through or
13 under it, and any others within their control or supervision, and all others in active
(650) 327-4200
THOITS LAW
14 concert or participation with the above, be enjoined during the pendency of this action
15 and permanently thereafter from infringing the ‘346 Patent in the manufacturing,
16 marketing, sales, distribution, promotion, advertising, identification, or in any other
17 manner in connection with apparel in the United States;
18 4. That Defendants, and each of its officers, directors, partners, agents,
19 servants, employees, attorneys, confederates, and all persons acting for, with, by,
20 through or under them, and any others within their control or supervision, and all others
21 in active concert or participation with the above, be enjoined during the pendency of
22 this action and permanently thereafter from representing to anyone, either orally or in
23 writing, that their business or goods are affiliated with ALO in any way or are approved
24 by ALO;
25 5. For an order requiring Defendants to cease offering for sale its infringing
26 products, and to destroy all patterns, stencils, molds, plates, masters, or means of
10965.004/1375518v2 10
COMPLAINT
1 creating the infringing items;

2 6. For an order requiring Tonic Active to instruct, within thirty (30) days
3 after the entry of any preliminary or permanent injunction, any other third-party
4 website that carries Tonic Active’s infringing products to cease selling those products
5 at the earliest possible date;
6 7. For an order requiring Defendants to file with the Clerk of this Court and
7 serve ALO, within thirty (30) days after the entry of any preliminary or permanent
8 injunction, a report in writing, under oath, setting forth in detail the manner and form
9 in which Defendants have complied with 1 through 7 above;
10 8. For an award of Defendants’ profits and ALO’s damages according to
11 proof at trial and as detailed in this Complaint;
12 9. For an award of three times ALO’s damages or Defendants’ profits in
13 view of the intentional and willful nature of Defendants’ acts, pursuant to 35 U.S.C.
(650) 327-4200
THOITS LAW
14 section 285 and as detailed in this Complaint;

15 10. For an order requiring Defendants to account for and pay to ALO all gains,
16 profits and advantages derived by Defendants from the unlawful activities alleged
17 herein, and/or as a result of unjust enrichment as detailed in this Complaint;
18 11. For an award of punitive damages according to proof;
19 12. For an award of ALO’s attorneys’ fees for bringing and prosecuting this
20 action pursuant to 35 U.S.C. section 285 and all applicable state statutes;
21 13. For an award of ALO’s costs and expenses incurred in bringing and
22 prosecuting this action pursuant to 35 U.S.C. section 285 and all applicable state
23 statutes; and
24 14. For such further relief as this Court shall deem just and proper.
25 ///
26 ///
10965.004/1375518v2 11
COMPLAINT
1 JURY DEMAND
2 Plaintiff ALO, LLC hereby demands trial by jury in the above entitled action
3 pursuant to Fed. R. Civ. P. 38(b).
4
5 Dated: June 1, 2020

THOITS LAW
6
7 By: /s/ Andrew P. Holland

Andrew P. Holland
8 Attorneys for Plaintiff
ALO, LLC
9
10
11
12
13
(650) 327-4200
THOITS LAW
14
15
16
17
18
19
20
21
22
23
24
25
26
10965.004/1375518v2 12
COMPLAINT
Case 2:20-cv-04858 Document 1-1 Filed 06/01/20 Page 1 of 19 Page ID #:13
Exhibit A
True and Correct Copy of the ’346 Patent

Exhibit B
True and Correct Copies of Photographs of the Infringing Accused Product as Displayed
on Evolve Fit Wear’s Website
Exhibit C
Side-by-Side Comparisons of the ’346 Patent design (left), with the infringing
Celestina Leggings (right)
Table 1: Comparison of ’346 Patent

and Defendant’s Infringing Fusions Leggings
’346 Patent Figures Defendant’s Infringing Leggings
Exhibit D
True and Correct Copy of Cease and Desist Letter Sent to Evolve Fit Wear
Exhibit E
True and Correct Copy of Email Chain

Exhibit F
True and Correct Copy of Website Landing Page

Exhibit G
True and Correct Copy of Cease and Desist Letter Sent to Tonic Active

ALO v. Tonic Active - Complaint

Caricato da

Informazioni sul documento

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

ALO v. Tonic Active - Complaint

Caricato da

Copyright:

Formati disponibili

Case 2:20-cv-04858 Document 1 Filed 06/01/20 Page 1 of 12 Page ID #:1

1 Andrew P. Holland/Bar No. 224737

13 ALO, LLC a California limited No.

14 regarding its source.

1 their true names and capacities when ascertained.

1 customers use the Accused Products.

1 FIRST CLAIM FOR RELIEF

14 contained in paragraphs 1 through 29 above, inclusive, as though set forth in full.

1 creating the infringing items;

14 section 285 and as detailed in this Complaint;

5 Dated: June 1, 2020

7 By: /s/ Andrew P. Holland

True and Correct Copy of the ’346 Patent

Table 1: Comparison of ’346 Patent

True and Correct Copy of Email Chain

True and Correct Copy of Website Landing Page

Potrebbero piacerti anche