Love Hobby v. Flashcopter - Flare Copter Trademark Complaint PDF

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 1 of 28
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action No.____________________
Love Hobby, Inc.,
Plaintiff,
vs.
Flashcopter LLC,
Defendant.
COMPLAINT AND JURY DEMAND
Plaintiff Love Hobby, Inc. d/b/a Flare Copter (Flare Copter) alleges the
following against Defendant Flashcopter LLC (Flashcopter):
The Parties
1.
Flare Copter is a Colorado Corporation with its principal business offices
located at 1728 Forest Ave, Durango, CO 81301.

2.
On information and belief, Flashcopter is a Florida limited liability
company, with its principal place of business at 6161 SW 109 Court, Miami, FL
33173.
Jurisdiction And Venue

3.
This action arises under the Lanham Act, specifically 15 U.S.C. 1051
1127. The Court has original jurisdiction over the Lanham Act claims in this action
pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331 and 1338. The state law claims
in this action arise from the same common nucleus of operative facts and
transactions, such that they form part of the same case or controversy and a
plaintiff would ordinarily be expected to try them all in a single judicial proceeding.
Accordingly, this Court may exercise supplemental jurisdiction over the state law
claims pursuant to 28 U.S.C. 1367.
4.
The events and/or omissions that give rise to the claims against Defendant
occurred in this judicial district. Therefore, venue is proper pursuant to 28 U.S.C.

1391(b) and (c).
Flare Copters Registered
FLARE COPTER MARK
5.
Flare Copter is a leading seller of childrens toys. Flare Copter sells the
FLARE COPTER, a toy helicopter that is launched using an elastic band. The toy
can be launched over 100 feet into the air. In addition the toy includes an LED light
making the toy light up the night sky before returning to earth (LED Toy
Helicopters).
6.
Flare Copter is the owner of U.S. Trademark Registration No. 4746234 for
FLARE COPTER in association with a Hand-Powered Projectile toy; HandPowered Flying Toy with LED and plastic rudders and propellers (FLARE
COPTER MARK). This Registration claims first use of the FLARE COPTER
MARK in association with its LED Toy Helicopters of least January 1, 2011. The
FLARE COPTER MARK was filed on April 1, 2014 and registered on June 2,
2015. See Exhibit A.
Exemplar Image of a Flare Copter

3
7.
Flare Copter has used and continues to use the FLARE COPTER MARK
in association with its LED Toy Helicopter products since at least December 22,
2011. Flare Copter openly promotes and advertises its FLARE COPTER MARK on
its website, www.flarecopter.com (Flare Copters Website.) A GOOGLE search of
flare copter returns Flare Copters Website as the first result.
8.
Flare Copter has expended a substantial amount of money and effort in
advertising and promoting its FLARE COPTER MARK in association with its
LED Toy Helicopters. Flare Copters substantial promotional, advertising, publicity
and public relations activities further promotes the recognition and goodwill
associated with the FLARE COPTER MARK.
9.
Flare Copters ownership of the FLARE COPTER MARK accords Flare
Copter exclusive nationwide rights to the use of FLARE COPTER MARK for its
goods and services, and the right to prevent others from using the FLARE
COPTER MARK or any other confusingly similar mark in association with these
goods and services.
10.
Flare Copters use of the FLARE COPTER MARK in association with the
sale of LED Toy Helicopters has been exclusive.

Flashcopters Infringement of Flare Copters
FLARE COPTER MARK
11.
Flare Copter is the owner of the registered FLARE COPTER MARK and
began using the mark in association with the sales of toy helicopters before
4
Flashcopter existed. Following in Flare Copters footsteps, Flashcopter later began

selling toy helicopters using the confusingly similar, unregistered term Flashcopter.
12.
Flashcopter also sells LED Toy Helicopters. Flashcopter sells its LED Toy
Helicopters under the mark FLASHCOPTER (FLASHCOPTER Mark).

13.
Upon information and belief, Flash Copter filed its Articles of Organization
for its limited liability company on March 3, 2015. Its Articles of Organization were
assigned document No. L15000052423.
14.
Flare Copter sells LED Toy Helicopters under FLARE COPTER MARK,
which is registered with the United States Patent and Trademark Office.
Flashcopter sells its LED Toy Helicopters under the unregistered FLASHCOPTER
Mark.
15.
Flashcopter advertises its FLASHCOPTER Mark and associated product
on its website located at https://www.flashcopter.com (Flashcopters Website) as

well as on other websites owned by Flashcopter (Collectively Flaschopters
Website(s)).
16.
Flashcopter began promoting and advertising its FLASHCOPTER Mark
after Flare Copter adopted its FLARE COPTER MARK.

17.
Flashcopter filed for trademark protection for the FLASHCOPTER Mark
on October 31, 2014 after Flare Copter filed for its trademark. On September 13,
2015, the trademark office rejected the FLASHCOPTER Mark application. The
trademark office examiner determined that there was a likelihood of confusion
5
under the Trademark Act Section 2(d) between Flare Copters prior registered
FLARE COPTER MARK and the applicants FLASHCOPTER Mark.
18.
The trademark office examiner concluded that both the FLARE COPTER
MARK and the FLASHCOPTER Mark are highly similar in sound, appearance,
connotation, and commercial impression. Specifically, the marks share the identical
term COPTER, and this term would be pronounced and displayed identically,
thereby creating similarities in sound and appearance. Moreover, the term
COPTER, meaning helicopter, conveys a similar meaning and creates a similar
commercial impression suggesting that the goods are related to helicopters equally
in both marks. See Exhibit B. The examiner further determined that the terms
FLASH and FLARE convey virtually identical meanings and create virtually
identical commercial impressions. Id. The examiner also found the goods to be
identical and rejected the application stating: because the marks are confusingly
similar and the goods are closely related, purchasers encountering these goods are
likely to believe, mistakenly, that they emanate from a common source and
registration is refused pursuant to Section 2(d) of the Trademark Act. Id.
19.
Despite knowing that the trademark office has concluded that the
FLASHCOPTER Mark is confusingly similar to the FLARE COPTER MARK,

Flashcopter continues to willfully use the FLASHCOPTER Mark in association with
it LED Toy Helicopters therefore infringing upon Flare Copters rights in its FLARE
COPTER MARK.
6
20.
Flashcopter also uses Flare Copters FLARE COPTER MARK in
association with it LED Toy Helicopters on its Flashcopter Website(s). Upon

information and belief, Flashcopter uses the FLARE COPTER MARK and the
FLASHCOPTER Mark interchangeably on its Flashcopter Website(s) to increase
website traffic. Flashcopters use of the FLARE COPTER MARK is not authorized
and is not fair use. A quote from Flashcopters Website demonstrates Flashcopters
willful creation of confusion between the FLARE COPTER MARK and the
FLASHCOPTER Mark: Flashcopter is the home of Original Whistle Copter and
Flare Copter. The Whistle Copter flies like the regular flare copter and flash
copter. See Exhibit C.
21.
Flashcopter uses a deceptive website in an attempt to hide its use of the
FLARE COPTER MARK. See Exhibit D compared with Exhibit C. Flashcopter

uses white text on a white background to attempt to hide its use of the FLARE
COPTER MARK and the term Flare Copter. Use of FLARE COPTER MARK and
the term Flare Copter in the Flashcopter website improperly drives customers to
the Flashcopter website away from the Flare Copter website. Flashcopter is
infringing upon Flare Copters rights in the FLARE COPTER MARK by using the
FLARE COPTER MARK and the term Flare Copter.
22.
Flashcopter copied Flare Copters instructions for use. Flashcopter willfully
copied both the text and the images from Flare Copter. Exhibit E.
23.
On December 10, 2015, Flare Copter sent a cease and desist letter
demanding that Flashcopter cease all use of the FLASHCOPTER Mark and any
confusingly similar marks including the FLARE COPTER MARK.
24.
By email dated December 10, 2015, Flashcopter denied infringement and
confusion, and refused to change the FLASHCOPTER Mark.

25.
Since at least September 13, 2015, Flashcopter has had notice of the use
Flare Copters FLARE COPTER MARK in association with LED Toy Helicopters
and Flashcopters use of the confusingly similar FLASHCOPTER Mark in
association with LED Toy Helicopters is an attempt to trade on the goodwill
associated with the FLARE COPTER MARK.
26.
Notwithstanding
Flashcopters
actual
knowledge
of
Flare
Copters
trademark rights in the FLARE COPTER MARK, Flashcopter used and continues
to use the FLASHCOPTER Mark for the very same goods. Additionally, Flashcopter
now uses Flare Copters FLARE COPTER MARK in association with Flashcopter
goods.
27.
Flashcopters use of the FLASHCOPTER Mark in connection with various
overlapping goods has caused actual confusion and is likely to continue to cause
confusion, by misleading consumers to believe, erroneously, that the LED Toy
Helicopters offered by Flashcopter are approved, provided, endorsed, and/or
sponsored by Flare Copter or that Flashcopter is an entity owned by or affiliated
with Flare Copter.
8
28.
Flashcopters conduct has caused, and will continue to cause, damage to
the reputation and goodwill associated with the FLARE COPTER MARK.
29.
Flashcopters continued infringement of Flare Copters FLARE COPTER
MARK is willful and is intended to trade on the goodwill associated with Flare
Copters FLARE COPTER MARK.
Flare Copters
COBRA LAUNCHER MARK
30.
Flare Copter sells the COBRA LAUNCHER, a sling shot with rubber band
accessory for propelling its FLARE COPTER toy.

31.
Flare Copter has used and continues to use the COBRA LAUNCHER Mark
in association with its sling shot with rubber band accessory for propelling its
FLARE COPTER toy helicopter since at least November 22, 2014. Flare Copter
openly promotes and advertises its COBRA LAUNCHER toy accessory and Mark on
Flare Copters Website. See Exhibit F.
32.
Flare Copter has expended a substantial amount of money and effort in
advertising and promoting its COBRA LAUNCHER Mark in association with its
sling shot toy accessory to the FLARE COPTER toy helicopter. Flare Copters
substantial promotional, advertising, publicity and public relations activities
further promotes the recognition and goodwill associated with the COBRA
LAUNCHER Mark.
33.
Flare Copters first use and ownership of the COBRA LAUNCHER Mark
accords Flare Copter exclusive rights to the use of the COBRA LAUNCHER Mark
for its goods and services, and the right to prevent junior users from using the
COBRA LAUNCHER Mark or any other confusingly similar mark in association
with these goods and services in the same geographic area(s) in which Flare Copter
first used the COBRA LAUNCHER Mark.
34.
Flare Copters use of the COBRA LAUNCHER Mark in association with
the sale of a toy sling shot with rubber band for use with an LED Toy Helicopter
has been exclusive.
Flashcopters Infringement of Flare Copters
COBRA LAUNCHER mark
35.
Flashcopter also sells a sling shot with rubber band for use with its LED
Toy Helicopters. Flashcopter sells its sling shot accessory under the exact same
mark COBRA LAUNCHER.
36.
Flashcopter advertises its COBRA LAUNCHER Mark and associated
product on Flashcopters Website(s). See Exhibit G.

37.
Flashcopter began promoting and advertising its COBRA LAUNCHER
Mark after Flare Copter adopted its COBRA LAUNCHER Mark.

38.
On December 10, 2015, Flare Copter sent a cease and desist letter
demanding that Flashcopter cease all use of the COBRA LAUNCHER Mark and
any confusingly similar marks.
10
39.
By email dated December 10, 2015, Flashcopter denied infringement and
confusion, and refused to change the COBRA LAUNCHER Mark.

40.
Since at least September 13, 2015, Flashcopter has had notice of the use of
Flare Copters COBRA LAUNCHER Mark in association with a sling shot with
rubber band for use with LED Toy Helicopters and Flashcopters use of the exact
COBRA LAUNCHER Mark in association with a sling shot with rubber band for
use with LED Toy Helicopters is an attempt to trade on the goodwill associated with
the Flare Copters COBRA LAUCHER Mark.
41.
Notwithstanding Flashcopters actual knowledge of Flare Copters prior
common law trademark rights in the COBRA LAUNCHER Mark, Flashcopter used
and continues to use the exact COBRA LAUNCHER Mark for the very same goods.
42.
Flashcopters use of the COBRA LAUNCHER Mark in connection with the
near exact goods has caused actual confusion and is likely to continue to cause
confusion, by misleading consumers to believe, erroneously, that the sling shot with
rubber band for use with the LED Toy Helicopters offered by Flashcopter are
approved, provided, endorsed, and/or sponsored by Flare Copter or that Flashcopter
is an entity owned by or affiliated with Flare Copter.
43.
Flashcopters conduct has caused, and will continue to cause, damage to
the reputation and goodwill associated with the COBRA LAUNCHER Mark.
11
44.
Flashcopters
continued
infringement
of
Flare
Copters
COBRA
LAUNCHER Mark is willful and is intended to trade on the goodwill associated

with Flare Copters COBRA LAUNCHER Mark.
First Claim For Relief
Federal Trademark Infringement Flashcopters use of
FLARE COPTER MARK
45.
Flare Copter incorporates all of the averments contained in the above
paragraphs 1 through 44.

46.
This cause of action arises under the Federal Trademark Act, 15 U.S.C.
1051-1127, including 15 U.S.C. 1114, 1116, 1117 & 1118.

47.
Flashcopter has used Flare Copters FLARE COPTER MARK in
connection with the advertising, promotion, and/or provision of its LED Toy
Helicopters that is identical and/or highly related to those goods offered by Flare
Copter under its FLARE COPTER MARK in a manner which has caused actual
confusion and is likely to cause confusion, to cause mistake, or to deceive.
48.
Flashcopters unauthorized use of the FLARE COPTER MARK is likely
to mislead and cause customers and/or the general public to believe that the goods
offered by Flashcopter are provided by or under the authority of Flare Copter.
Flashcopters use of the FLARE COPTER MARK infringes Flare Copters rights
in its federally registered FLARE COPTER MARK.
12
49.
Flare Copters goodwill in the FLARE COPTER MARK will be
irreparably harmed if Flashcopter continues its actions.

50.
Flashcopters actions constitute trademark infringement under 15 U.S.C.
1114.
51.
Upon information and belief, Flashcopters actions were taken in willful,
deliberate and intentional disregard to Flare Copters rights.

52.
Flare Copter has been damaged by the actions of Flashcopter for which it
has no adequate remedy at law, and Flashcopter will continue to cause damage
unless restrained and enjoined by this Court from further infringing the FLARE
COPTER MARK and causing consumer confusion.
Second Claim For Relief
Federal Trademark Infringement Flashcopters use of
FLASHCOPTER Mark
53.

54.
This cause of action arises under the Federal Trademark Act, 15 U.S.C.
1051-1127, including 15 U.S.C. 1114, 1116, 1117 & 1118.

55.
Flashcopters use of the FLASHCOPTER Mark in connection with the
advertising, promotion, and/or provision of its LED Toy Helicopters that is identical
and/or highly related to those goods offered by Flare Copter under its FLARE
13
COPTER MARK in a manner which has caused actual confusion and is likely to
cause confusion, to cause mistake, or to deceive.
56.
Flashcopters use of the FLASHCOPTER Mark is likely to mislead and
cause customers and/or the general public to believe that the goods offered by
Flashcopter are provided by or under the authority of Flare Copter. Flashcopters
use of the FLASHCOPTER Mark infringes Flare Copters rights in its federally
registered FLARE COPTER MARK.
57.
Flare Copters goodwill in the FLARE COPTER MARK will be

58.
Defendants actions constitute trademark infringement under 15 U.S.C.
1114.
59.

60.
has no adequate remedy at law, and Flashcopter will continue to cause damage
unless restrained and enjoined by this Court from further infringing the FLARE
COPTER MARK and causing consumer confusion.
14
Third Claim for Relief

False Designation of Origin Federal Unfair Competition
Flashcopters use of FLARE COPTER MARK
61.

62.
This cause of action arises under the Lanham Act, 15 U.S.C. 1125(a).
63.
Flashcopters use of the FLARE COPTER MARK without Flare Copters
consent, in association with LED Toy Helicopters, which are the same goods offered
by Flare Copter, is likely to cause confusion, or to cause mistake, or to deceive as to
the affiliation, connection, or association of Flashcopter with Flare Copter, or as to
the origin, sponsorship, or approval of Flashcopters goods, services, or commercial
activities by Flare Copter.
64.
Flashcopters use of the FLARE COPTER MARK infringes Flare Copters
common law trademark rights in the trade name Flare Copter.

65.
Flashcopters acts constitute a willful false designation of origin and
misrepresentation in violation of 15 U.S.C. 1125(a).

66.
Flashcopter has inflicted damage and irreparable injury upon Flare Copter
for which it has no adequate remedy at law, and Flashcopter will continue to do so
unless restrained and enjoined by this Court from further infringing Flare Copters
FLARE COPTER MARK, thereby confusing the public.
15
Fourth Claim for Relief

False Designation of Origin Federal Unfair Competition Flashcopters
use of FLASHCOPTER Mark
67.

68.
This cause of action arises under the Lanham Act, 15 U.S.C. 1125(a).
69.
Flashcopters use of the FLASHCOPTER Mark without Flare Copters
consent, in association with LED Toy Helicopters, which are the same goods offered
by Flare Copter, is likely to cause confusion, or to cause mistake, or to deceive as to
the affiliation, connection, or association of Flashcopter with Flare Copter, or as to
the origin, sponsorship, or approval of Flashcopters goods, services, or commercial
activities by Flare Copter.
70.
Flashcopters use of the FLASHCOPTER Mark infringes Flare Copters
trademark rights in the trade name Flare Copter and the FLARE COPTER
MARK.
71.
Flashcopters acts constitute a willful false designation of origin and
misrepresentation in violation of 15 U.S.C. 1125(a).

72.
Flashcopter has inflicted damage and irreparable injury upon Flare Copter
for which it has no adequate remedy at law, and Flashcopter will continue to do so
unless restrained and enjoined by this Court from further infringing Flare Copters
16
trade name Flare Copter and the FLARE COPTER MARK, thereby confusing the
public.
Fifth Claim for Relief
Violation of Colorado Consumer Protection Act C.R.S. 6-1-105, et seq.
Flashcopters use of FLARE COPTER MARK
73.

74.
Flashcopters use of the trade name Flare Copter and the FLARE
COPTER MARK for the sale and distribution of LED Toy Helicopters in Colorado
constitutes deceptive trade practices in violation of the Colorado Consumer
Protection Act, C.R.S. 6-1-105, because Flashcopter knowingly passes off its goods
as those of Flare Copter. C.R.S. 6-1-105(a).
75.
COPTER MARK for LED Toy Helicopters sold and distributed in Colorado
Protection Act, C.R.S. 6-1-105, because Flashcopter knowingly makes a false
representation as to the source, sponsorship, approval, and/or certification of its
goods, as those of another. C.R.S. 6-1-105(b).
76.
COPTER MARK for LED Toy Helicopters sold or distributed in Colorado

Protection Act, C.R.S. 6-1-105, because Flashcopter knowingly makes a false
17
representation as to affiliation, connection, and/or association with or certification

by Flare Copter. C.R.S. 6-1-105(c).
77.
COPTER MARK for LED Toy Helicopters sold or distributed in Colorado

Protection Act, C.R.S. 6-1-105, because Flashcopter knowingly disparages the
goods, services, property, or business of another by false or misleading
representation of fact. C.R.S. 6-1-105 (h).
78.
Upon information and belief, Flashcopters use of the trade name Flare
Copter and the FLARE COPTER MARK for LED Toy Helicopters sold or
distributed in Colorado is in bad faith, with willful and deliberate intent to deceive
the public and to trade on the goodwill associated with Flare Copter.
79.
Flashcopters improper and unauthorized use of the trade name Flare
Copter and the FLARE COPTER MARK has confused consumers and continues to
confuse consumers, thereby negatively impacting the public that is seeking the
original importer and distributor of Flare Copter LED Toy Helicopters who instead
is mislead into buying from a company that disregards the law and legal process.
80.
Flashcopters improper and unauthorized use of the trade name Flare
Copter and the FLARE COPTER MARK has caused, and will continue to cause,
injury to Flare Copter for which there is no adequate remedy at law.
18
81.
Upon information and belief, Flashcopter has received revenues and profits
as a result of its unfair and deceptive conduct, to which Flashcopter is not entitled,
and Flare Copter has suffered damages as a result of Flashcopters unlawful
conduct.
Sixth Claim for Relief
Violation of Colorado Consumer Protection Act C.R.S. 6-1-105, et seq.
Flashcopters use of FLASHCOPTER Mark
82.

83.
Flashcopters use of the FLASHCOPTER Mark for the sale and
distribution of LED Toy Helicopters in Colorado constitutes deceptive trade

practices in violation of the Colorado Consumer Protection Act, C.R.S. 6-1-105,
because Flashcopter knowingly passes off its goods as those of Flare Copter. C.R.S.
6-1-105(a).
84.
Flashcopters use of the FLASHCOPTER Mark for LED Toy Helicopters
sold and distributed in Colorado constitutes deceptive trade practices in violation of

the Colorado Consumer Protection Act, C.R.S. 6-1-105, because Flashcopter
knowingly makes a false representation as to the source, sponsorship, approval,
and/or certification of its goods, as those of another. C.R.S. 6-1-105(b).
85.
sold or distributed in Colorado constitutes deceptive trade practices in violation of

19
knowingly makes a false representation as to affiliation, connection, and/or

association with or certification by Flare Copter. C.R.S. 6-1-105(c).
86.
sold or distributed in Colorado constitutes deceptive trade practices in violation of

knowingly disparages the goods, services, property, or business of another by false
or misleading representation of fact. C.R.S. 6-1-105 (h).
87.
Upon information and belief, Flashcopters use of the FLASHCOPTER
Mark for LED Toy Helicopters sold or distributed in Colorado is in bad faith, with
willful and deliberate intent to deceive the public and to trade on the goodwill
associated with Flare Copter.
88.
Flashcopters improper and unauthorized use of the FLASHCOPTER Mark
has confused consumers and continues to confuse consumers, thereby negatively

impacting the public that is seeking the original importer and distributor of Flare
Copter LED Toy Helicopters who instead is mislead into buying from a company
that disregards the law and legal process.
89.
Flashcopters improper and unauthorized use of the FLASHCOPTER Mark
has caused, and will continue to cause, injury to Flare Copter for which there is no
adequate remedy at law.
90.
Upon information and belief, Flashcopter has received revenues and profits
as a result of its unfair and deceptive conduct, to which Flashcopter is not entitled,
20
and Flare Copter has suffered damages as a result of Flashcopters unlawful

conduct.
Seventh Claim for Relief
Violation of Colorado Common Law Trademark Infringement Flashcopters use of FLARE COPTER MARK
91.

92.
Flashcopter has used a mark in commerce confusingly similar to Flare
Copters FLARE COPTER MARK in connection with the advertising, promotion,

and/or provision of its LED Toy Helicopters in Colorado that are identical and/or
highly related to those goods offered by Flare Copter under its FLARE COPTER
MARK in a manner that has caused actual confusion and is likely to cause
confusion, to cause mistake, or to deceive as to source or origin among purchasers
and/or users of those goods and services.
93.
COPTER MARK is likely to mislead and cause customers and/or the general
public to believe that the Flashcopters goods are provided by or under the authority
of Flare Copter. Flashcopters use of the trade name Flare Copter infringes Flare
Copters common law rights in its FLARE COPTER MARK.
94.
Flare Copters goodwill in its trade name Flare Copter and its FLARE
COPTER MARK will be irreparably harmed if Flashcopter continues its actions.
21
95.

96.
has no adequate remedy at law, and Flashcopter will continue to do so unless

restrained and enjoined by this Court from further infringing the trade name Flare
Copter and causing consumer confusion.
Eighth Claim for Relief
Violation of Colorado Common Law Trademark Infringement Flashcopters use of FLASHCOPTER Mark
97.

98.
Copters FLARE COPTER MARK in connection with the advertising, promotion,

and/or provision of its LED Toy Helicopters in Colorado that are identical and/or
highly related to those goods offered by Flare Copter under its FLARE COPTER
MARK in a manner that has caused actual confusion and is likely to cause
confusion, to cause mistake, or to deceive as to source or origin among purchasers
and/or users of those goods and services.
99.
Flashcopters use of the FLASHCOPTER Mark is likely to mislead and
cause customers and/or the general public to believe that the Flashcopters goods
are provided by or under the authority of Flare Copter. Flashcopters use of
22
FLASHCOPTER Mark infringes Flare Copters common law rights in its FLARE
COPTER MARK.
100. Flare Copters goodwill in its trade name Flare Copter and its FLARE
COPTER MARK will be irreparably harmed if Flashcopter continues its actions.
101. Upon information and belief, Flashcopters actions were taken in willful,
102. Flare Copter has been damaged by the actions of Flashcopter for which it
Copter and causing consumer confusion.
Ninth Claim for Relief
Violation of Colorado Common Law Trademark Infringement Flashcopters use of COBRA LAUNCHER Mark
103. Flare Copter incorporates all of the averments contained in the above
104.
Copters COBRA LAUNCHER Mark in connection with the advertising, promotion,

and/or provision of its sling shot with rubber band accessory for LED Toy
Helicopters in Colorado that are identical and/or highly related to those goods
offered by Flare Copter under its COBRA LAUNCHER Mark in a manner that has
caused actual confusion and is likely to cause confusion, to cause mistake, or to
23
deceive as to source or origin among purchasers and/or users of those goods and
services.
105. Flashcopters use of the COBRA LAUNCHER Mark is likely to mislead
and cause customers and/or the general public to believe that the Flashcopters
goods are provided by or under the authority of Flare Copter. Flashcopters use of
COBRA LAUNCHER Mark infringes Flare Copters common law rights in its
COBRA LAUNCHER Mark.
106. Flare Copters goodwill in its COBRA LAUNCHER Mark will be
107. Upon information and belief, Flashcopters actions were taken in willful,
108. Flare Copter has been damaged by the actions of Flashcopter for which it
Copter and causing consumer confusion
Jury Demand
109. Flare Copter requests a trial by jury on all claims so triable asserted in
this Complaint and Jury Demand.
24
Requested Relief
Therefore, Plaintiff Flare Copter requests that the Court enter an order:
A. Preliminarily and permanently enjoining and restraining Flashcopter, and
Flashcopters directors, officers, agents, servants, employees, subsidiaries, affiliates,
and all persons in active concert or participation with, through, or under Defendant:
1. from using in any way Flare Copter or any other marks confusingly
similar to the FLARE COPTER MARK for Flashcopters goods or
services;
2. from using in any way the COBRA LAUNCHER Mark for Flashcopters
goods or services;
3. from committing any acts of unfair competition and from creating a false
designation of origin or a false description or representation with respect
to Flare Copters FLARE COPTER MARK and COBRA LAUNCHER
Mark;
4. from committing any acts of unfair competition by passing off or
inducing or enabling others to sell or pass off services which are not
Flare Copters services or goods as those of Flare Copter;
5. from using in any manner websites, URLs, packaging, labels, signs,
literature, display cards, or other packaging, advertising, or promotional
materials, or other materials related to Flashcopters services using
25
Flare Copters FLARE COPTER MARK and COBRA LAUNCHER

Mark and any other mark confusingly similar to Flare Copters FLARE
COPTER MARK and COBRA LAUNCHER Mark;
6. from making any statements on promotional materials or advertising for
the Flashcopters goods or services which are false or misleading as to
source or origin; and
7. from committing any acts of deceptive or unlawful trade practices
calculated to cause members of the trade or purchasing public to believe
that Flashcopters goods or services are the those of Flare Copter, or
sponsored by or associated with, or related to, or connected with, or in
some way endorsed or promoted by Flare Copter under the supervision
or control of Flare Copter.
B. Requiring that the Defendant delivers up and/or transfers to Flare Copter
any and all websites, URLs, social media sites, containers, signs, packaging
materials, printing plates, and advertising or promotional materials and any
materials used in the preparation of such materials, which in any way use or make
reference to the trade name Flare Copter or any term confusingly similar to Flare
Copters FLARE COPTER MARK and/or COBRA LAUNCHER Mark pursuant to
15 U.S.C. 1118.
C. Requiring that Flashcopter, within thirty days after service of notice of entry
of judgment or issuance of an injunction pursuant thereto, files with the Court and
26
serve upon the Flare Copters counsel a written report under oath setting forth
details of the manner in which Flashcopter has complied with the Court's order
pursuant to paragraphs A - B above.
D. Requiring Flashcopter to account and pay over to Flare Copter all damages
sustained by Flare Copter, Flashcopters profits attributable to its wrongful
conduct, plus interest thereon, and for damages resulting from infringement of the
trade name Flare Copter, from unfair competition or false designation of origin
under the Lanham Act, and/or deceptive trade practices under Colorado law, and
that such damages be enhanced and trebled, pursuant to 15 U.S.C. 1117, Colorado
law, or other applicable law.
E. Awarding Flare Copter the costs of this suit and its reasonable attorneys fees
in accordance with 15 U.S.C. 1117, Colorado law, and other applicable law.
F. Awarding Flare Copter prejudgment and post-judgment interest as
recoverable under statute and common law on all sums; and
G. Awarding Flare Copter such other relief as the Court may deem just and
proper.
///
///
///
///
///
27
Dated:
April 13, 2016

/s/ Bradley T. Fox
Bradley T. Fox
Fox Law Group, LLC
528C Main Ave.
Durango, CO 81301
(970) 317-3580 - phone
(866) 348-4107 - fax
brad@foxgroupllc.com
Attorney for Plaintiff
Love Hobby, Inc.
28

Love Hobby v. Flashcopter - Flare Copter Trademark Complaint PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Love Hobby v. Flashcopter - Flare Copter Trademark Complaint PDF

Uploaded by

Copyright:

Available Formats

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 1 of 28

IN THE UNITED STATES DISTRICT COURT

COMPLAINT AND JURY DEMAND

Flare Copter is a Colorado Corporation with its principal business offices

located at 1728 Forest Ave, Durango, CO 81301.

On information and belief, Flashcopter is a Florida limited liability

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 2 of 28

Jurisdiction And Venue

occurred in this judicial district. Therefore, venue is proper pursuant to 28 U.S.C.

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 3 of 28

Exemplar Image of a Flare Copter

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 4 of 28

Flare Copter has expended a substantial amount of money and effort in

Flare Copters ownership of the FLARE COPTER MARK accords Flare

sale of LED Toy Helicopters has been exclusive.

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 5 of 28

Flashcopter existed. Following in Flare Copters footsteps, Flashcopter later began

Helicopters under the mark FLASHCOPTER (FLASHCOPTER Mark).

Flashcopter advertises its FLASHCOPTER Mark and associated product

on its website located at https://www.flashcopter.com (Flashcopters Website) as

Flashcopter began promoting and advertising its FLASHCOPTER Mark

after Flare Copter adopted its FLARE COPTER MARK.

Flashcopter filed for trademark protection for the FLASHCOPTER Mark

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 6 of 28

FLASHCOPTER Mark is confusingly similar to the FLARE COPTER MARK,

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 7 of 28

Flashcopter also uses Flare Copters FLARE COPTER MARK in

association with it LED Toy Helicopters on its Flashcopter Website(s). Upon

Flashcopter uses a deceptive website in an attempt to hide its use of the

FLARE COPTER MARK. See Exhibit D compared with Exhibit C. Flashcopter

Flashcopter copied Flare Copters instructions for use. Flashcopter willfully

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 8 of 28

By email dated December 10, 2015, Flashcopter denied infringement and

confusion, and refused to change the FLASHCOPTER Mark.

Flashcopters use of the FLASHCOPTER Mark in connection with various

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 9 of 28

Flashcopters conduct has caused, and will continue to cause, damage to

Flashcopters continued infringement of Flare Copters FLARE COPTER

accessory for propelling its FLARE COPTER toy.

Flare Copter has expended a substantial amount of money and effort in

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 10 of 28

Flare Copters use of the COBRA LAUNCHER Mark in association with

Flashcopter advertises its COBRA LAUNCHER Mark and associated

product on Flashcopters Website(s). See Exhibit G.

Flashcopter began promoting and advertising its COBRA LAUNCHER

Mark after Flare Copter adopted its COBRA LAUNCHER Mark.

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 11 of 28

By email dated December 10, 2015, Flashcopter denied infringement and

confusion, and refused to change the COBRA LAUNCHER Mark.

Notwithstanding Flashcopters actual knowledge of Flare Copters prior

Flashcopters use of the COBRA LAUNCHER Mark in connection with the

Flashcopters conduct has caused, and will continue to cause, damage to

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 12 of 28

LAUNCHER Mark is willful and is intended to trade on the goodwill associated

Flare Copter incorporates all of the averments contained in the above

paragraphs 1 through 44.

1051-1127, including 15 U.S.C. 1114, 1116, 1117 & 1118.

Flashcopter has used Flare Copters FLARE COPTER MARK in

Flashcopters unauthorized use of the FLARE COPTER MARK is likely

Case 1:16-cv-00839 Document 1 Filed 04/13/16 USDC Colorado Page 13 of 28

Flare Copters goodwill in the FLARE COPTER MARK will be

irreparably harmed if Flashcopter continues its actions.