Complaint Battle Foam v Foam Corps

1UNITED STATES DISTRICT COURTDISTRICT OF NEW HAMPSHIREBattle Foam, LLCPlaintiff,v.

Outrider Hobbies and Bryan WadeDefendants.________________________________

COMPLAINT FOR TRADEMARK INFRINGEMENT, UNFAIR COMPETITION,TRADEMARK DILUTION, DECEPETIVE TRADE PRACTICES ANDMISAPPROPRIATION OF TRADE SECRETS

COMPLAINTPlaintiff Battle Foam, LLC, (“Battle Foam”) for its Complaint against OutriderHobbies and Bryan Wade (“Outrider”) hereby demands a jury trial and alleges as follows:NATURE OF THE ACTION

1.

This is an action for trademark infringement, unfair competition and falsedesignation of origin in violation of 15 U.S.C. § 1125(a) et seq.; trademark dilution in violationof 15 U.S.C. § 1125(c) et seq.; unfair competition and deceptive trade practices in violation of the New Hampshire Consumer Protection Act, RSA 358-A et seq.; injury to business reputation,dilution and common law trademark infringement under New Hampshire’s Trademark statute,RSA 350-A et seq.; irreparable harm from the misappropriation of trade secrets in violation of the New Hampshire Uniform Trade Secrets Act, RSA 350-B et seq§.; common law trademark §§§ CIVIL ACTION NO. 1:10-cv-116§

JURY DEMAND

§§§§§

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2infringement and unfair competition, and for such other relief as the Court deems just andproper.THE PARTIES

2.

Plaintiff Battle Foam, LLC is an Arizona limited liability company thatspecializes in laser cutting foam for carrying cases sold in the war gaming market under themark, BATTLE FOAM, through their website www.battlefoam.com, the Plaintiff having aprincipal place of business at 240 N. Sunway Drive Suite 102 Gilbert, AZ.

3.

On information and belief, Defendants are operating a laser cutting foam businessselling the same products under the mark, FOAM CORPS, and having the domainwww.outriderhobbies.com and having a principal place of business at 85 W. Combs Rd., Suite101-231 Queen Creek, AZ.JURISDICTION AND VENUE

4.

This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1338 and15 U.S.C. § 1121, as well as supplemental jurisdiction over the state law claims under 28 U.S.C.§ 1367.

5.

This action arises from Defendants’ manufacture, offer for sale, sale anddistribution of protective foam trays under

the mark FOAM CORPS in and through the Districtof New Hampshire

which are deceptive copies of Plaintiff’s products and confusingly similartrademarks, and from Defendants’ unfair and deceptive business practices.

6.

This Court has personal jurisdiction over Defendants since Defendants haveengaged in acts constituting doing business in this State, and have intentionally directed itstortious activities toward New Hampshire. Defendants have delivered its infringing productsinto the stream of commerce with the expectation that they will be purchased by consumers in

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3this State.

7.

Venue is proper in this district under 28 U.S.C. § 1391(b)-(c) as Defendants havesold product in this District, and advertises products for sale to residents of New Hampshire ontheir website, www.outriderhobbies.com.

INTRODUCTION

8.

Battle Foam brings this action to protect its BATTLE FOAM trademark againstcontinued infringement by Defendants. Battle Foam and its predecessors in interest have used theBATTLE FOAM mark since at least as early as January 1, 2009 in connection with laser cut foamtrays for protecting delicate articles.

9.

Conventional foam trays can protect most any delicate article and are generally cutwith inaccurate, clumsy and expensive industrial knives. The foam trays manufactured and soldby Battle Foam are cut with lasers by a proprietary and patent pending process which permits ahighly detailed and custom profile to be formed in the foam quickly and without great expense.

10.

The custom cut foam trays are sold online and through specialty stores andspecifically for use with carry cases sold in the war gaming market for protecting handpaintedmodels of soldiers, military vehicles, weapons and various military type articles used for examplein popular wargames such as Warhammer®.

11.

Defendants are wrongfully using and have purposefully used the mark FOAMCORPS in connection with the exact same online and retail marketing and sales of identical goodsas Plaintiff.

12.

Defendants’ use of FOAM CORPS in conjunction with the exact same goods andby the exact same proprietary and patent pending process as Battle Foam violates Battle Foam’srights and is likely to cause confusion among consumers unless such use is enjoined.

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