FIRST AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR: (1) PATENT INFRINGEMENT, (2) FEDERAL UNFAIR COMPETITION AND TRADE DRESS INFRINGEMENT, AND (3) COMMON LAW UNFAIR COMPETITION; DEMAND FOR JURY TRIAL
This outsole periphery trade dress has an ornamental configuration thatuniquely identifies the shoe as emanating from a single source, Skechers. As can be seenin the following photograph, the distinctive ornamental feature of the GOwalk outsole periphery trade dress is the repeating pattern of cleats or nubs where cleats or nubs thathave a relatively straight periphery surface (indicated by wide green arrows) alternatewith cleats or nubs that have a curved periphery surface (indicated by narrow red arrows):Skechers GOwalk Outsole Periphery (Medial view)5.
Skechers has acquired two U.S. design patents, D661,880 (Exhibit 1) and D680,309 (Exhibit 2), which each cover different ornamental features of the GOwalk outsole periphery.6.
The unique ornamental appearance of the GOwalk outsole periphery tradedress, combined with Skechers’ extensive advertising, promotion, and sales, has resulted in the GOwalk outsole periphery trade dress acquiring distinctiveness among shoe buyers. In the mind of the typical shoe buyer, the GOwalk outsole periphery trade dressis believed to emanate from a single source, namely, Skechers. This acquired distinctiveness is protectable, proprietary trade dress owned exclusively by Skechers.7.
Rather than undertake the hard work and financial risks involved indeveloping their own outsole periphery trade dress, defendants simply copied Skechers’
Case 2:13-cv-03768-JAK-VBK Document 9 Filed 06/24/13 Page 3 of 50 Page ID #:74