Professional Documents
Culture Documents
§
Battle Foam, LLC §
Plaintiff, §
§ CIVIL ACTION NO. 1:10-cv-116
v. § JURY DEMAND
§
Outrider Hobbies and Bryan Wade §
Defendants. §
________________________________ §
§
COMPLAINT
Plaintiff Battle Foam, LLC, (“Battle Foam”) for its Complaint against Outrider
Hobbies and Bryan Wade (“Outrider”) hereby demands a jury trial and alleges as follows:
of 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
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infringement and unfair competition, and for such other relief as the Court deems just and
proper.
THE PARTIES
specializes in laser cutting foam for carrying cases sold in the war gaming market under the
mark, BATTLE FOAM, through their website www.battlefoam.com, the Plaintiff having a
principal place of business at 240 N. Sunway Drive Suite 102 Gilbert, AZ.
3. On information and belief, Defendants are operating a laser cutting foam business
selling the same products under the mark, FOAM CORPS, and having the domain
4. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1338 and
15 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 and
distribution of protective foam trays under the mark FOAM CORPS in and through the District
of New Hampshire which are deceptive copies of Plaintiff’s products and confusingly similar
6. This Court has personal jurisdiction over Defendants since Defendants have
engaged in acts constituting doing business in this State, and have intentionally directed its
tortious activities toward New Hampshire. Defendants have delivered its infringing products
into the stream of commerce with the expectation that they will be purchased by consumers in
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this State.
sold product in this District, and advertises products for sale to residents of New Hampshire on
INTRODUCTION
8. Battle Foam brings this action to protect its BATTLE FOAM trademark against
continued infringement by Defendants. Battle Foam and its predecessors in interest have used the
BATTLE FOAM mark since at least as early as January 1, 2009 in connection with laser cut foam
9. Conventional foam trays can protect most any delicate article and are generally cut
with inaccurate, clumsy and expensive industrial knives. The foam trays manufactured and sold
by Battle Foam are cut with lasers by a proprietary and patent pending process which permits a
highly 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 and
specifically for use with carry cases sold in the war gaming market for protecting handpainted
models of soldiers, military vehicles, weapons and various military type articles used for example
11. Defendants are wrongfully using and have purposefully used the mark FOAM
CORPS in connection with the exact same online and retail marketing and sales of identical goods
as Plaintiff.
12. Defendants’ use of FOAM CORPS in conjunction with the exact same goods and
by the exact same proprietary and patent pending process as Battle Foam violates Battle Foam’s
rights and is likely to cause confusion among consumers unless such use is enjoined.
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PLAINTIFF’S RIGHTS
13. Battle Foam began a laser cutting foam business to fabricate carrying cases for
model armies for the war gaming market under the name BATTLE FOAM at least as early as
January 1, 2009. As shown in the attached Exhibit A, Battle Foam applied for a Federal
Trademark Registration for BATTLE FOAM with the United States Patent and Trademark
Office filed under Application No. 77/676,475 filed on 02/23/2009 which has been allowed
as seen in Exhibit B, and incorporated under the name, Battle Foam, LLC, on July 23, 2009.
15. Battle Foam has developed a proprietary process for the cutting of foam using a
laser and has filed U.S. Patent Application No. 12/479,410 the (“`410 patent application”) filed
on June 5, 2009 with a priority date of April 13, 2009. A copy of the same is attached as
Exhibit C.
16. Battle Foam has advertised and promoted its BATTLE FOAM Mark, and has
manufactured and facilitated substantial sales of custom designed laser cut foam for carrying
cases under the BATTLE FOAM Mark through a variety of vendors and also via its website
17. As a result of these activities, the BATTLE FOAM mark has achieved
widespread consumer recognition in the industry, making it a strong mark entitled to broad
18. Battle Foam and its BATTLE FOAM Mark have acquired considerable value and have
become well-known among the relevant consuming public and the trade as identifying and
distinguishing a commercial source for such custom designed laser cut foam products for carrying
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cases.
19. Defendants have undertaken the exact same services, namely the manufacture of
the same goods and selling of laser cut foam products for carrying cases under the name
20. Upon information and belief, Defendants were aware of Battle Foam and/or its
BATTLE FOAM mark before it sought the use of FOAM CORPS and before it used or sold
any goods under the FOAM CORPS marks in the United States.
and/or information from Battle Foam’s industrial facility and misappropriated trade secrets of
Battle Foam’s proprietary process of cutting foam using a laser which is the subject of Battle
22. Upon information and belief Defendants induced others to obtain access to
Battle Foam’s industrial facility to misappropriate Battle Foam’s proprietary process of cutting
foam using a laser and to provide Defendants with these trade secrets.
23. Upon information and belief Defendants using Battle Foam’s misappropriated
trade secrets have introduced products of inferior quality to the marketplace under the FOAM
CORPS mark that consumers believe to be Battle Foam’s products causing irreparable harm to
24. Defendants’ services are directly competitive and Defendants’ website sells the
exact same laser cut foam products as Battle Foam to the same markets and types of
consumers.
25. Defendants intend by their use of FOAM CORPS marks to trade off the
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goodwill of Battle Foam and the BATTLE FOAM marks for the same goods and services.
26. Use of the FOAM CORPS marks by Defendants is without the permission or
consent of Battle Foam. Battle Foam has no control over the manner of use of the marks or the
27. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set
forth herein.
similar to the BATTLE FOAM marks and services and is used in a manner that is likely to
29. By using the FOAM CORPS marks with the knowledge that Plaintiff owns and
has used, and continues to use, its Marks in interstate commerce, Defendants have intended to
30. Defendants are using a mark identical and/or confusingly similar to Plaintiff’s
BATTLE FOAM Mark in connection with the sale, offering for sale or advertising of services
31. Defendants’ use of the FOAM CORPS mark has created a likelihood of
confusion among consumers who may falsely believe that Defendants’ business or web sites
are associated with Battle Foam, or that Battle Foam sponsors or approves of Defendants’
32. As a direct and proximate result of Defendants infringement, Battle Foam has
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suffered, and will continue to suffer, monetary loss and irreparable injury to its business,
34. Defendants’ use of the FOAM CORPS mark in commerce in connection with the
manufacture and sale of custom designed laser cut foam carrying cases is likely to cause confusion,
mistake, or deception as to the source of origin of the service and products offered by
Defendants in that consumers and potential consumers are likely to believe that such products
are provided by, sponsored by, approved by, licensed by, affiliated or associated with, or in some
other way legitimately connected to Battle Foam and its BATTLE FOAM mark in violation of
15 U.S.C. § 1125(a).
35. As a direct and proximate result of the likely confusion, mistake, or deception,
Battle Foam has suffered and will continue to suffer irreparable harm if the conduct of
36. Pursuant to 15 U.S.C. § 1117, Battle Foam is entitled to recover all of Defendants’
profits, Battle Foam’s damages, and the costs of this action. The intentional nature of
Defendants’ unlawful conduct also renders this an “exceptional case,” entitling Battle Foam to
37. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth
herein.
38. The BATTLE FOAM marks are famous trademarks within the meaning of the
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39. Battle Foam has no control over the quality of the www.outriderhobbies.com and
FOAM CORPS website, services, advertising and other promotional materials, its use of the
FOAM CORPS marks, and its misappropriation of the trade dress of Battle Foam as a thematic
40. Defendants’ operation of a custom designed laser cut foam business, its use and
dissemination of material bearing the FOAM CORPS marks, and its misappropriation of the trade
dress and marketing concept of Battle Foam, is and will continue to result in the dilution of the
distinctive nature of the Battle Foam mark through blurring, in violation of 15 U.S.C. 1125(c).
of the BATTLE FOAM marks that Battle Foam has expended great efforts to develop and
maintain through its control and usage of the BATTLE FOAM mark.
42. The distinctive nature of the BATTLE FOAM marks is of enormous value, and
Battle Foam is suffering and will continue to suffer irreparable harm and blurring of the BATTLE
43. Defendants’ production of inferior quality products bearing the FOAM CORPS
marks have caused consumer complaints to be directed to Battle Foam because consumers are
44. Defendants’ operation of a custom designed laser cut foam business, its use and
dissemination of material bearing the FOAM CORPS marks, and its misappropriation of the trade
dress and marketing concept of Battle Foam will likely continue unless enjoined by this Court.
45. Battle Foam is entitled to a permanent injunction against Defendants, as well as all
other remedies available under the Lanham Act, including, but not limited to, compensatory
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damages; treble damages, disgorgement of profits; and costs and attorney’s fees.
46. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth
herein.
47. Defendants’ use of the FOAM CORPS marks as a trade and domain name have
passed off their services of custom designed laser cut foam products for purchase and sale as the
approval, affiliation and association of its goods and services with the goods and services of
Battle Foam.
49. Defendants have committed acts of unfair competition and/or deceptive acts or
practices which fall within New Hampshire’s Consumer Protection Act, RSA 358-A, and one or
more of the enumerated unlawful acts set forth under RSA 358-A:2.
50. Battle Foam has been injured and has suffered irreparable harm as to the
continuance of which monetary relief is not sufficient, and requests that Defendant be enjoined
from further use of the FOAM CORPS marks and from contacting Battle Foam’s customers and
advertisers.
51. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth
herein.
52. Defendants have engaged in deceptive trade practices because its use of the FOAM
CORPS mark is likely to cause confusion, mistake, or deception as to the source of origin of the
goods offered by Defendants under the marks in that consumers and potential consumers are likely to
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believe that such goods are provided by, sponsored by, approved by, licensed by, affiliated or
associated with, or in some other way legitimately connected to Battle Foam or the products Battle
53. As a direct and proximate result of the likely confusion, mistake, or deception caused
by Defendants, Battle Foam has suffered and will continue to suffer irreparable harm if Defendants’
54. Pursuant to R.S.A. §358-A-10 Battle Foam is entitled to injunctive relief and to the
amount of actual damages. The Defendants’ actions under this statute were willful allowing for the
Plaintiff to receive up to 3 times but not less than 2 times the amount of actual damages and recovery
55. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth
herein.
56. Battle Foam’s proprietary process of laser cutting foam has substantial independent
economic value, is not generally known, is not readily ascertainable by proper means and is the
59. Pursuant to R.S.A. §350-B-2 Battle Foam is entitled to injunctive relief and to the
amount of actual damages and the unjust enrichment caused by the misappropriation. The
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Defendants’ actions under this statute were willful and malicious allowing for the Plaintiff to receive
exemplary damages in an amount not exceeding twice the amount of actual and unjust enrichment
60. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth
herein.
61. Battle Foam has acquired the rights to the mark in good faith at common law.
62. Defendants’ acts constitute trademark infringement under the common law in
63. Defendants’ acts were taken in willful, deliberate, and/or intentional disregard of
64. Battle Foam has suffered injury to its business reputation and a dilution of the
65. Battle Foam has suffered irreparable harm, for which it has no adequate remedy at
law, and will continue to suffer irreparable injury unless and until Defendants’ infringing acts are
enjoined.
Hobbies and Bryan Wade, its directors, officers, agents, servants, employees, subsidiaries,
affiliates, and all persons in active concert or participation with, through, or under it, at first during
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2. from the production, sale, marketing, or distribution of any products using the
3. from committing any acts of infringement and/or unfair competition and from
enabling others to sell or pass off goods and/or services that are not those of Battle
Foam;
5. from using in any manner any packaging, labels, signs, literature, display cards, or
to the manufacture and/or sale of the custom designed laser cut foam products
that bear the marks FOAM CORPS, and/or any other mark, word, design, or
Defendants’ goods and/or services that are false or misleading as to source or origin;
and
trademarks.
B. Requiring that Defendants deliver up to Battle Foam any and all containers, signs,
packaging materials, printing plates, and advertising or promotional materials, and any materials used
in the preparation thereof, which in any way unlawfully use or make reference to BATTLE FOAM’s
mark in connection with the manufacture and/or sale of custom designed laser cut foam products.
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C. Requiring that Defendants, within thirty (30) days after service of notice of entry of
judgment or issuance of an injunction pursuant thereto, file with the Court and serve upon Battle
Foam’s counsel a written report under oath setting forth details of the manner in which Defendants
have complied with the Court’s order pursuant to paragraphs A and B above.
D. Requiring Defendants to account and pay over to Battle Foam all damages sustained
by Battle Foam, Defendants’ profits, Battle Foam’s attorney fees and costs, and ordering that the
amount of damages awarded to Battle Foam be increased three times the amount thereof.
E. Awarding Battle Foam such other relief as the Court may deem just and proper.
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