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FIRST AMENDED COMPLAINT
DOCS 120994-000005/2032029.1
Lisel M. Ferguson (Bar No. 207637)
Heather A. Cameron (Bar No. 265310)
PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
525 B Street, Suite 2200
San Diego, California 92101
Telephone: 619.238.1900
Facsimile: 619.235.0398
Email: lmf@procopio.com
Email: hac@procopio.com
Attorneys for Plaintiff,
ZOE MARKETING, INC.


UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

ZOE MARKETING, INC. a Nevada
corporation;

Plaintiff,

v.

IMPRESSONS, LLC, a Oregon limited
liability company,

Defendants.

Case No.: 3:14cv01881 AJ B WVG

FIRST AMENDED COMPLAINT
FOR:
(1) TRADEMARK
INFRINGEMENT;
(2) LANHAM ACT UNFAIR
COMPETITION AND FALSE
DESIGNATION OF ORIGIN;
(3) CALIFORNIA TRADEMARK
INFRINGEMENT;
(4) UNFAIR COMPETITION;
AND
(5) NEGLIGENT
INTERFERENCE WITH
ECONOMIC RELATIONS

(DEMAND FOR JURY TRIAL)

Plaintiff ZOE MARKETING, INC. (Plaintiff) hereby alleges as follows:
JURISDICTION AND VENUE
1. This is a Complaint for (i) federal trademark infringement pursuant to
15 U.S.C. 1114; (ii) unfair competition and false designation of origin arising
under 15 U.S.C. 1125(a); (iii) trademark infringement arising under California
Business & Professions Code 14245, et seq.; (iv) unfair competition arising under
California Business & Professions Code 17200, et seq.; and (v) negligent
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interference with prospective economic relations.
2. This Court has subject matter jurisdiction over this action pursuant to
15 U.S.C. 1121(a), and 28 U.S.C. 1331, 1338(a) and (b). This Court has
supplemental jurisdiction over Plaintiffs state law claims pursuant to 28 U.S.C.
1367.
3. This Court has personal jurisdiction over Defendant because it
conducts business in California. Defendant has purposely availed itself of the
opportunity to conduct commercial activities in this J udicial District by maintaining
an online retail store and sending out catalogs that target customers in the United
States and United States territories, including this J udicial District, and offering to
ship and shipping products to customers in the United States and United States
territories, including this J udicial District.
4. Venue is proper in this District pursuant to 28 U.S.C. 1391(b) and
(c), because a substantial part of the events giving rise to the claims occurred, and
continue to occur, in the Southern District of California. Further, Plaintiff has
suffered damage within this District, and elsewhere.
PARTIES
5. Plaintiff Zoe Marketing, Inc. is a Nevada corporation with its principal
place of business at 12375 World Trade Drive, San Diego, California 92128.
6. Plaintiff is informed and thereon alleges that Defendant Impressons,
LLC is a limited liability company organized and existing under the laws of the
state of Oregon with a principal place of business at 238 Lawrence Avenue, San
Francisco, California 94080.
FACTUAL BACKGROUND
7. Plaintiff is a company which designs, manufactures and sells
cheerleading uniforms and cheer related products. Plaintiff is the top source for
dependable, high quality cheerleading uniforms, warm-ups, shoes and accessories.
Plaintiff has been in business selling cheer products since August 2002.
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8. Plaintiff offers cheerleading apparel and supplies, including but not
limited to cheerleading uniforms, practice wear, t-shirts, pom-poms, shoes, socks,
accessories, jackets, footwear, bags, makeup and other cheerleading accessories
(Products). Plaintiff has offered cheerleading Products for over twelve years, and
targets individual consumers and groups of consumers, including cheerleading
squads and sports teams, nationwide.
9. Plaintiff has a diverse customer base which includes sales to the
general public; elementary, middle and high schools including grades kindergarten
through twelve; youth cheerleading leagues, recreational teams, Pop Warner
Football organizations; American Youth Football & Cheer organizations;
universities; colleges; as well as all-star, club and team cheerleading organizations.
10. Plaintiff commenced its business in 2002 selling both self-
manufactured products and third party products.
11. Plaintiffs sales are retail sales which are promoted mostly, although
not exclusively, through catalogs; websites, including Plaintiffs websites
www.cheerleadingonline.com and www.omnicheer.com; social media sites; and
various trade shows throughout the United States and within this J udicial District.
12. On November 26, 2009 Plaintiff filed an application for the trademark
LIVE LOVE CHEER for registration on the Principal Register. On J uly 13,
2010 the United States Patent and Trademark Office issued Registration No.
3,817,720 for LIVE LOVE CHEER. A true and correct copy of Registration No.
3,817,720 is attached hereto as Exhibit A.
13. Plaintiffs mark LIVE LOVE CHEER has been used in commerce
since at least February 1, 2006 to brand Plaintiffs Products.
14. Plaintiff offers for sale various t-shirts and socks bearing the mark
LIVE LOVE CHEER. A sampling of these Products is displayed below:
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15. In light of Plaintiffs valid and continuous use of the LIVE LOVE
CHEER trademark since February 1, 2006, Plaintiffs mark, already a strong and
distinctive mark, has acquired secondary meaning among the consuming public.
The LIVE LOVE CHEER mark is symbolic of extensive goodwill and consumer
recognition, built up by and through Plaintiffs substantial time, effort and money
dedicated to advertising, marketing and promotional activities. The LIVE LOVE
CHEER mark and the goodwill associated therewith are valuable assets of
Plaintiff.
16. In the mind of the consuming public, Plaintiff is the source or origin of
the Products bearing the LIVE LOVE CHEER trademark.
17. Plaintiff is informed and believes, and on that basis alleges, Defendant
has misappropriated Plaintiffs federally registered trademark LIVE LOVE
CHEER for use on Defendants websites and products, which are the same as
Plaintiffs Products, without permission or consent from Plaintiff.
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18. Defendant is using in commerce a Live Love Cheer mark identical
in sight, sound and meaning to Plaintiffs LIVE LOVE CHEER mark.
19. Defendants products, bearing Plaintiffs misappropriated LIVE
LOVE CHEER mark, are exactly the same products as those sold by Plaintiff,
namely, hoodies and t-shirts. An example of one of Defendants infringing
products, found on the website http://www.activewearapparel.com/browse-by-
sport/cheer-clothing/cheer-hooded-sweatshirts.html, is pasted herein below:







20. Upon information and belief, Defendant advertises, markets and sells
its infringing products bearing Plaintiffs LIVE LOVE CHEER mark on at least
the following websites: Amazon.com, Zazzle.com, and Activewearapparel.com.
Screenshots of Defendants infringing activities on each of these websites are
attached hereto as Exhibit B.
21. Defendants products, bearing Plaintiffs misappropriated LIVE
LOVE CHEER mark, are sold in close proximity to Plaintiffs Products on the
worldwide internet. This causes confusion to the consuming public as to the
source, origin and affiliation of Defendants products.
22. On J uly 3, 2014, Plaintiff sent a cease and desist letter to Defendant
requesting Defendant immediately cease and desist its use of LIVE LOVE
CHEER based on Plaintiffs ownership of U.S. Trademark Registration No.
3,817,720 for the mark LIVE LOVE CHEER. Plaintiff informed Defendant that
Defendants unlicensed and unpermitted use of Live Love Cheer dilutes and
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DOCS 120994-000005/2032029.1
tarnishes Plaintiffs mark and causes confusion among consumers in the
marketplace as to the source, origin, sponsorship or approval of Defendants
infringing products. Plaintiff also advised Defendant that its acts cause Plaintiff
irreparable harm for which Defendant is subject to serious legal consequences.
Plaintiffs J uly 3, 2014 letter is attached hereto as Exhibit C.
23. On J uly 16, 2014 Defendant responded to Plaintiffs J uly 3rd letter,
and refused to cease and desist its use of LIVE LOVE CHEER.
24. On J uly 18, 2014 Plaintiff reiterated its request to Defendant to
immediately cease and desist all use of LIVE LOVE CHEER. Plaintiffs J uly 18,
2014 letter is attached hereto as Exhibit D.
25. On J uly 22, 2014 Defendant replied to Plaintiffs J uly 18, 2014 letter
and repeated its refusal to stop using Plaintiffs mark.
26. Plaintiff is informed and believes, and on that basis alleges, that
Defendant sells and markets to the same customer base that Plaintiff targets.
27. Plaintiff is informed and believes, and on that basis alleges, that
Defendant was aware of Plaintiffs LIVE LOVE CHEER mark prior to its
misappropriation of the same and Defendant intentionally copied Plaintiffs mark
to trade on Plaintiffs goodwill and favorable reputation among the consuming
public and, in particular, within the cheerleading community nationwide.
FIRST CLAIM FOR RELIEF
(Trademark Infringement Pursuant to 15 U.S.C. 1114)
28. Plaintiff hereby repeats, realleges and incorporates by reference
Paragraphs 1 through 27 of this Complaint as if fully set forth herein.
29. Plaintiff has the rights to enforce federally registered trademark LIVE
LOVE CHEER (Registration No. 3,817,720).
30. This is an action for trademark infringement arising under 15 U.S.C.
1114.
31. Defendant has used in commerce, without the permission or consent of
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FIRST AMENDED COMPLAINT
DOCS 120994-000005/2032029.1
Plaintiff, t-shirts and hoodies that are identical to and/or confusingly similar to
Plaintiffs Products bearing Plaintiffs federally registered LIVE LOVE CHEER.
32. Defendant has infringed Plaintiffs federally registered LIVE LOVE
CHEER mark and created a false designation of origin by using said mark and/or
similar marks in connection with the manufacture, offer for sale, sale, distribution,
promotion and/or marketing of Defendants products without the permission or
consent of Plaintiff.
33. Defendants acts are designed to trade upon Plaintiffs reputation and
goodwill by causing confusion and mistake among consumers and the public.
Defendants acts are also designed to deceive the public into believing that
Defendants products are associated with, sponsored by, approved by and/or
condoned by Plaintiff.
34. Plaintiff is informed and believes, and on that basis alleges, that
Defendant had actual knowledge of Plaintiffs right to enforce and use in
commerce Plaintiffs federally registered trademark LIVE LOVE CHEER, and,
without the permission or consent of Plaintiff, has willfully and intentionally
violated 15 U.S.C. 1114.
35. Defendants actions have injured Plaintiff and damaged Plaintiff in an
amount to be determined at trial.
36. By its actions, Defendant has irreparably harmed and injured Plaintiff.
Such irreparable injury will continue unless this Court preliminarily and
permanently enjoins Defendant from further violation of Plaintiffs rights, for
which Plaintiff has no adequate remedy at law.
SECOND CLAIM FOR RELIEF
(Unfair Competition and False Designation of Origin Pursuant to 15 U.S.C.
1125(a))
37. Plaintiff hereby repeats, realleges and incorporates by reference
Paragraphs 1 through 36 of this Complaint as if fully set forth herein.
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FIRST AMENDED COMPLAINT
DOCS 120994-000005/2032029.1
38. Defendant has created a false designation of origin by its multiple
unauthorized acts, namely, using in commerce, without Plaintiffs permission or
consent, the mark LIVE LOVE CHEER in connection with the manufacture,
offer for sale, sale, distribution, advertisement, promotion and/or marketing of
Defendants products.
39. Defendant committed such acts with the intent to trade upon Plaintiffs
reputation and goodwill by causing confusion and mistake amongst customers and
the public, and deceiving the public into believing Defendants products are
associated with, sponsored by, approved by and/or condoned by Plaintiff.
40. Defendant has further committed such acts with the intent to cause
confusion and mistake amongst customers and the public, deceiving the public into
believing that Defendants use of the phrase Live Love Cheer on its t-shirts and
hoodies is associated with, sponsored by, approved by and/or condoned by
Plaintiff. These acts constitute false designation of origin in violation of 15 U.S.C.
1125(a).
41. Plaintiff is informed and believes, and on that basis alleges, that
Defendant had actual knowledge of Plaintiffs ownership and prior use of its
LIVE LOVE CHEER mark, and without the permission or consent of Plaintiff,
Defendant has willfully violated 15 U.S.C. 1125(a).
42. Defendants actions have injured Plaintiff and damaged Plaintiff in an
amount to be determined at trial.
43. By its actions, Defendant has irreparably harmed and injured Plaintiff.
Such irreparable injury will continue unless this Court preliminarily and
permanently enjoins Defendant from further violation of Plaintiffs rights, for
which Plaintiff has no adequate remedy at law.
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THIRD CLAIM FOR RELIEF
(California Statutory Trademark Infringement Pursuant to California
Business & Professions Code 14245)
44. Plaintiff hereby repeats, realleges and incorporates by reference
Paragraphs 1 through 43 of this Complaint as if fully set forth herein.
45. Plaintiff is the owner federally registered trademark LIVE LOVE
CHEER (Registration No. 3,817,720).
46. This is an action for trademark infringement arising under California
Business & Professions Code 14245.
47. Defendant has used in commerce, without the permission or consent of
Plaintiff, t-shirts and hoodies bearing the logo Live Love Cheer that are identical
to and/or confusingly similar to the federally registered mark LIVE LOVE
CHEER. Defendant has infringed Plaintiffs federally registered LIVE LOVE
CHEER mark and created a false designation of origin by using said mark and/or
similar marks in connection with the manufacture, offer for sale, sale, distribution,
promotion and/or marketing of Defendants products without the permission or
consent of Plaintiff. Defendants acts are designed to trade upon Plaintiffs
reputation and goodwill by causing confusion and mistake among consumers and
the public. Defendants acts are also designed to deceive the public into believing
that Defendants products are associated with, sponsored by, approved by and/or
condoned by Plaintiff.
48. Defendants actions have injured Plaintiff and damaged Plaintiff in an
amount to be determined at trial.
49. By its actions, Defendant has irreparably harmed and injured Plaintiff.
Such irreparable injury will continue unless this Court preliminarily and
permanently enjoins Defendant from further violation of Plaintiffs rights, for
which Plaintiff has no adequate remedy at law.
50. Pursuant to California Business & Professions Code 14247, et seq.,
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Plaintiff is entitled to injunctive relief throughout the State of California.
51. Pursuant to California Business & Professions Code 14247, et seq.,
Defendant may be required to pay Plaintiff up to three times its profits from, and up
to three times all damages suffered by reason of, Defendants wrongful sale, offer
for sale, or display of its t-shirts bearing the phrase Live Love Cheer.
FOURTH CLAIM FOR RELIEF
(Unfair Competition Pursuant to California Business & Professions Code
17200, et seq.)
52. Plaintiff hereby repeats, realleges and incorporates by reference
Paragraphs 1 through 51 of this Complaint as if fully set forth herein.
53. The acts of Defendant described herein constitute unlawful, unfair and
fraudulent business acts and practices, in violation of California Business &
Professions Code 17200, et seq. Defendants unauthorized use of Plaintiffs
Trademark, as set forth above, has caused and will continue to cause confusion,
mistake and deception in that customers are likely to believe that Defendants
goods and services are associated with, connected to, affiliated with, authorized by,
and endorsed and/or sponsored by Plaintiff.
54. As a result of these acts, Defendant has received and will continue to
receive sales and profits generated from the strength of Plaintiffs success, goodwill
and consumer recognition.
55. Plaintiff has suffered and will continue to suffer damages as a direct
result of Defendants conduct as described herein, and such damages will continue
unless the Court enjoins Defendants use of the Plaintiffs Trademark and forces
Defendant to cease its copying practices.
56. As a proximate and legal result of Defendants unlawful conduct,
Plaintiff has been damaged in its business relationships with its current and
prospective customers and has suffered damages in the form of lost profits, loss of
promotion and loss of goodwill.
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FIRST AMENDED COMPLAINT
DOCS 120994-000005/2032029.1
57. Defendant should be required to restore Plaintiff with any and all
profits earned as a result of its unlawful and unfair actions. Defendant should be
held accountable for all profits wrongfully obtained and provide Plaintiff
appropriate restitution.
FIFTH CLAIM FOR RELIEF
(Negligent Interference With Prospective Economic Relations)
58. Plaintiff hereby repeats, realleges and incorporates by reference
Paragraphs 1 through 57 of this Complaint as if fully set forth herein.
59. This is an action for negligent interference with prospective economic
relations.
60. Plaintiff is informed and believes, and on that basis alleges, that
Defendant has sold, offered for sale, manufactured and/or distributed products, and
advertised, marketed and promoted products that infringe Plaintiffs federally
registered trademark LIVE LOVE CHEER without the permission or consent of
Plaintiff.
61. Defendants unlawful conduct has deceived, or is likely to deceive,
purchasers into believing that Plaintiffs Products and Defendants products are
affiliated with, associated with, condoned and/or sold by Plaintiff. Defendant has
negligently represented that its products are affiliated with Plaintiff, thereby
wrongfully and unfairly disrupting Plaintiffs business and diverting customers
from Plaintiff to Defendant.
62. Defendants aforementioned actions constitute unfair business
practices in violation of California Business & Professions Code 17200, et seq.
63. Defendants aforementioned actions constitute unlawful, unfair,
malicious and/or fraudulent practices. As a result of Defendants actions of
negligent interference with prospective economic relations, Plaintiff has been
injured and lost money in an amount to be determined at trial.
64. By its actions, Defendant has irreparably harmed and injured Plaintiff.
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Such irreparable injury will continue unless this Court preliminarily and
permanently enjoins Defendant from further violation of Plaintiffs rights, for
which Plaintiff has no adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for relief as follows:
As to the First and Third Claims for Relief:
a. That Defendant be adjudged to have infringed Plaintiffs LIVE
LOVE CHEER mark, in violation of federal and California law;
b. That Defendant be adjudged to have deliberately, intentionally
and willfully infringed Plaintiffs LIVE LOVE CHEER mark, in violation of
federal and California law;
c. That Defendant and its officers, agents, employees and all
persons acting or claiming to act on its behalf under its direction or authority, be
preliminarily and permanently enjoined and restrained from infringing Plaintiffs
LIVE LOVE CHEER mark in any manner in the sale, promotion, advertising,
manufacture, purchase and/or distribution of Defendants products;
d. That Defendant be ordered to pay damages for federal
trademark infringement in the amount of its infringing profits and/or reasonable
royalties, increased by the Court by an amount the Court deems to be suitable,
together with Plaintiffs actual damages, and such damages be increased or trebled
pursuant to 15 U.S.C. 1117(b);
e. That Defendant be ordered to pay damages for California
trademark infringement in the amount of its infringing profits and/or reasonable
royalties, increased by the Court by an amount the Court deems to be suitable,
together with Plaintiffs actual damages, and such damages be increased or trebled
pursuant to California Business & Professions Code 14250;
As to the Second and Fourth Claims for Relief:
f. That Defendant be adjudged to have competed unfairly with
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Plaintiff and used a false designation of origin, false or misleading description of
fact and/or false or misleading representation of fact in violation of federal and
California state law;
g. That Defendant be adjudged to have deliberately, intentionally
and willfully competed unfairly with Plaintiff and to have used a false designation
of origin, false or misleading description of fact and/or false or misleading
representation of fact in violation of federal and California state law;
h. That Defendant and its officers, agents, employees and all
persons acting or claiming to act on its behalf under its direction or authority, be
permanently enjoined and restrained from or engaging in acts of unfair competition
with Plaintiff relating to the sale of products that display Plaintiffs federally
registered LIVE LOVE CHEER mark in any manner in the sale, promotion,
advertising, manufacture, purchase and/or distribution of Defendants products;
i. That Defendant and its officers, agents, employees and all
persons acting or claiming to act on its behalf under its direction or authority, be
permanently enjoined and restrained from engaging in acts of false designation
related to the sale of products that display Plaintiffs federally registered LIVE
LOVE CHEER mark in any manner in the sale, promotion, advertising, purchase
and/or distribution of Defendants products;
As to the Fifth Claim for Relief:
j. That Defendant be adjudged to have intentionally and/or
negligently interfered with Plaintiffs prospective economic relations;
k. That Defendant and its officers, agents, employees and all
persons acting or claiming to act on its behalf under its direction or authority, be
permanently enjoined and restrained from or engaging in acts of intentional
interference of prospective economic relations related to the sale of products that
display Plaintiffs federally registered LIVE LOVE CHEER mark in any manner
in the sale, promotion, advertising, manufacture, purchase and/or distribution of
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Defendants products;
l. That Defendant and its officers, agents, employees and all
persons acting or claiming to act on its behalf under its direction or authority, be
permanently enjoined and restrained from or engaging in acts of negligent
interference of prospective economic relations related to the sale of products that
display Plaintiffs federally registered LIVE LOVE CHEER mark in any manner
in the sale, promotion, advertising, manufacture, purchase and/or distribution of
Defendants products;
m. That Defendant be ordered to pay damages for intentional and
negligent interference with prospective economic relations, in an amount to be
proven at trial;
As to all Claims for Relief:
n. For an award of costs and reasonable attorneys fees; and
o. For all other relief the Court deems just and proper.
JURY DEMAND
Plaintiff requests a trial by jury on all issues so triable.

DATED: September 2, 2014 PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
By: /s/ Lisel M. Ferguson
Lisel M. Ferguson
Heather A. Cameron
PROCOPIO, CORY, HARGREAVES
& SAVITCH LLP
525 B Street, Suite 2200
San Diego, California 92101
Telephone: 619.238.1900
Facsimile: 619.235.0398
Attorneys for Plaintiff,
ZOE MARKETING, INC.

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