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Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 1 of 11 Page ID #:1

1 Andrew P. Holland/Bar No. 224737


aholland@thoits.com
2 Mark V. Boennighausen/Bar No. 142147
mboennighausen@thoits.com
3 Misasha S. Graham/Bar No. 237187
mgraham@thoits.com
4 THOITS LAW
A Professional Corporation
5 400 Main Street, Suite 250
Los Altos, California 94022
6 Telephone: (650) 327-4200
Facsimile: (650) 325-5572
7
Attorneys for Plaintiff
8 Color Image Apparel, Inc.
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
WESTERN DIVISION
12
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 COLOR IMAGE APPAREL, INC. No.


a California corporation,
(650) 327-4200

COMPLAINT FOR:
THOITS LAW

14
Plaintiff,
15 1. PATENT INFRINGEMENT
v.
16
FITCAPRI, an Australian 2. UNFAIR COMPETITION
17 corporation; DOES 1 through 10,
inclusive,
18 DEMAND FOR JURY TRIAL
Defendants.
19

20 Plaintiff Color Image Apparel, Inc. (“CIA”) alleges against defendants


21 FitCapri (“Defendant” or “FitCapri”) and Does 1 through 10, as follows:
22 NATURE OF THE CASE
23 1. This is an action at law and in equity for patent infringement and unfair
24 competition, arising under 35 U.S.C. section 271 et seq. and common law unfair
25 competition.
26 2. CIA is the creator of ALO® and ALO Yoga® (collectively, “ALO

10965.004/1092676v1 1
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 2 of 11 Page ID #:2

1 Yoga”), a well-known and exceedingly popular line of athletic wear designed for
2 both athletic and non-athletic settings. This line includes, among other distinctive
3 designs, ALO Yoga’s Moto Legging (“Moto Legging”), which is at issue in this
4 case.
5 3. FitCapri, without authorization, is copying CIA’s distinctive Moto
6 Legging design and, as a result, is offering for sale and selling products that are
7 confusingly similar to the Moto Legging. Defendant’s products are not
8 manufactured by CIA and are not connected to or endorsed by CIA in any way. As
9 a result, Defendant is infringing CIA’s patent on the Moto Legging. In addition,
10 Defendant’s merchandise is likely to cause confusion in the marketplace and to
11 deceive consumers and the public regarding its source.
12 PARTIES
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 4. Plaintiff Color Image Apparel, Inc. is a California corporation with its


(650) 327-4200

principal place of business at 6670 Flotilla Street, Commerce, California, 90040.


THOITS LAW

14

15 5. On information and belief, Defendant FitCapri is an Australian


16 corporation with its principal place of business at Meredith Avenue, Glengowrie,
17 South Australia, 5044.
18 6. The true names and capacities of defendants sued herein as Does 1
19 through 10, inclusive, are unknown to Plaintiff and Plaintiff therefore sues these
20 defendants by such fictitious names. Plaintiff will amend this complaint to allege
21 their true names and capacities when ascertained.
22 7. On information and belief, FitCapri has purposefully directed business
23 activities toward consumers residing in this judicial district, including but without
24 limitation by offering for sale, selling, and entering into sales contracts for their
25 infringing products with residents of this judicial district, and calculating and
26 collecting California sales tax on sales of the infringing products to residents of this

10965.004/1092676v1 2
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 3 of 11 Page ID #:3

1 judicial district.
2 8. By engaging in the activities set forth herein, FitCapri has purposefully
3 availed themselves of the privilege of conducting activities in this forum, thereby
4 invoking the benefits and protections of the laws of the State of California, and of
5 this judicial district in particular.
6 JURISDICTION AND VENUE
7 9. This action arises under 35 U.S.C. section 271 et seq. and common law
8 unfair competition. This Court has subject matter jurisdiction over this action
9 pursuant to 28 U.S.C. sections 1331 and 1338, as CIA’s claims arise under the
10 Patent Act. This Court has supplemental jurisdiction pursuant to 28 U.S.C. sections
11 1338(b) and 1367 over CIA’s claims arising under the laws of the State of California.
12 10. This Court has personal jurisdiction over FitCapri as, on information
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 and belief, FitCapri is doing business in this judicial district through its website
(650) 327-4200

(https://www.fitcapri.com/), through which it advertises and sells goods that


THOITS LAW

14

15 infringe CIA’s design patent to consumers residing in this judicial district, thereby
16 invoking the benefits and protections of the laws of this judicial district.
17 11. Fit Capri has distributed or sold infringing merchandise within this
18 judicial district, has manufactured or distributed products used or consumed within
19 this judicial district in the ordinary course of trade, or has otherwise made or
20 established contacts within this judicial district sufficient to permit the exercise of
21 personal jurisdiction. Venue is proper in this judicial district under 28 U.S.C.
22 section 1391(b)(2) as, on information and belief, a substantial part of the events,
23 omissions and acts causing injury that are the subject matter of this action arise out
24 of or relate to Fit Capri’s activities within this judicial district,
25 FACTUAL ALLEGATIONS
26 12. CIA’s innovative concept of creating an exercise legging with

10965.004/1092676v1 3
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 4 of 11 Page ID #:4

1 motorcycle pant stylings revolutionized the athletic wear market when it was first
2 marketed and quickly became one of the hallmarks of the ALO Yoga® brand,
3 known for its distinctive appearance and ornamental “moto” design.
4 13. On December 27, 2016, the United States Patent and Trademark Office
5 duly and legally issued United States Design Patent No. US D774,731 S (the “’731
6 Patent”), which covers products sold under ALO Yoga’s “Moto Legging”
7 collection. A true and correct copy of the ’731 Patent is attached hereto as Exhibit
8 A. CIA is the owner of the entire right, title, and interest in and to the ’731 Patent,
9 and owned the ’731 Patent throughout the period of Defendant’s infringing acts.
10 CIA still owns the ’731 Patent.
11 14. Certain FitCapri leggings marketed as “Racer Leggings” infringe the
12 ’731 Patent (the “Accused Product”). True and correct copies of photographs of
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 the infringing Accused Product as displayed on FitCapri’s website


(650) 327-4200

(https://www.fitcapri.com) are attached hereto as Exhibit B.


THOITS LAW

14

15 15. The overall appearance and design of the invention embodied in the
16 ’731 Patent and the corresponding design of the infringing Accused Product are
17 substantially the same.
18 16. On information and belief, an ordinary observer will perceive the
19 overall appearance of the design of the invention embodied in the ’731 Patent and
20 the corresponding designs of Defendant’s infringing Accused Product to be
21 substantially the same.
22 17. Table 1, below, shows side-by-side comparisons of the ’731 Patent
23 design (left), with the infringing Racer Leggings (right). A copy of Table 1 is also
24 attached as Exhibit C.
25 ///
26
///

10965.004/1092676v1 4
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 5 of 11 Page ID #:5

1
Table 1: Comparison of ’731 Patent
2
and Defendant’s Infringing Racer Leggings
3
’731 Patent Figures Defendant’s Infringing Leggings
4

10

11

12
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13
(650) 327-4200
THOITS LAW

14
Figure 1
15

16

17

18

19

20
21

22

23

24

25

26
Figure 2

10965.004/1092676v1 5
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 6 of 11 Page ID #:6

10

11
Figure 3
12
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13
(650) 327-4200
THOITS LAW

14

15

16

17

18

19

20
21

22

23
Figure 5
24
18. FitCapri offers for sale and sells the Accused Product to customers in
25
the United States through its website and social media ads. Furthermore, FitCapri
26
indirectly infringes the ’731 Patent because its customers use the Accused Product.

10965.004/1092676v1 6
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 7 of 11 Page ID #:7

1 19. Upon information and belief, FitCapri offers to sell and sells the
2 Accused Product to customers with the specific intent to induce infringement of the
3 ’731 Patent.
4 20. Upon information and belief, FitCapri had knowledge that the Accused
5 Product is especially made or especially adapted for use in an infringement of the
6 ’731 Patent and is not a staple article or commodity of commerce suitable for
7 substantial non-infringing use.
8 21. FitCapri has infringed and is still infringing, directly and indirectly, the
9 ’731 Patent by making, using, offering to sell, selling and/or importing athletic
10 leggings that embody the ’731 Patent including, but not limited to, the Accused
11 Product.
12 22. CIA has been manufacturing, advertising, and selling the Moto
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 Legging for both athletic and non-athletic use. The Moto Legging revolutionized
(650) 327-4200

the area of sports leggings due to the total image and overall appearance of its
THOITS LAW

14

15 design, as it married the athletic nature of leggings with the aesthetic of more
16 motorcycle inspired pants with distinctive, non-functional attributes such as a flat
17 front panel at the top of the leggings and raised ridge panels at the thigh, shin and
18 back calves that give the appearance of “moto” leggings.
19 23. On information and belief, FitCapri is, and will continue to
20 manufacture, distribute, advertise, sell and offer for sale its unauthorized products
21 in this judicial district and throughout the United States unless enjoined by this
22 Court.
23 24. The products manufactured, distributed, offered for sale and sold by
24 FitCapri are not manufactured by CIA, nor is FitCapri associated or connected with
25 CIA, or licensed, authorized, endorsed or approved by CIA in any way.
26 ///

10965.004/1092676v1 7
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 8 of 11 Page ID #:8

1 25. Upon information and belief, FitCapri became aware of the


2 infringement allegations and the ’731 Patent at least as early as August 30, 2017
3 after a cease and desist letter was sent to FitCapri by CIA’s counsel. A true and
4 correct copy of this letter is attached as Exhibit D.
5 26. After receiving no response from FitCapri to its August 30, 2017
6 letter, counsel for CIA sent a follow-up letter on November 7, 2017. A true and
7 correct copy of this letter is attached as Exhibit E.
8 27. As of the date of filing this Complaint, CIA has received no response
9 from FitCapri to either of its letters.
10 FIRST CLAIM FOR RELIEF
11 (Patent Infringement – 35 U.S.C. § 271)
12 28. CIA repeats and incorporates by this reference each and every
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 allegation contained in paragraphs 1 through 27 above, inclusive, as though set forth


(650) 327-4200

in full.
THOITS LAW

14

15 29. FitCapri, without authorization from CIA, has made, used, offered for
16 sale, sold, and/or imported in or into the United States, and continues to make, use,
17 offer for sale, sell, and/or import in or into the United States, leggings having a
18 design that infringes the ’731 Patent.
19 30. CIA has been and will continue to be irreparably harmed by FitCapri’s
20 infringement of the ’731 Patent.
21 ///
22 ///
23 ///
24 ///
25 ///
26 ///

10965.004/1092676v1 8
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 9 of 11 Page ID #:9

1 SECOND CLAIM FOR RELIEF


2 (Unfair Competition)
3 31. CIA repeats and incorporates by this reference each and every
4 allegation contained in paragraphs 1 through 30 above, inclusive, as though set forth
5 in full.
6 32. FitCapri’s unauthorized actions and conduct as alleged herein constitute
7 unfair competition under California common law, and have created and will continue
8 to create a likelihood of confusion and irreparable harm, damage, and injury to CIA,
9 including but not limited to injury to CIA's goodwill and business reputation, unless
10 restrained and enjoined by this Court.
11 33. On information and belief, FitCapri’s unfair competition with CIA was,
12 and is, done with full knowledge of CIA’s statutory and common law rights and
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 without regard to the likelihood of confusion to the public created by FitCapri’s


(650) 327-4200

activities.
THOITS LAW

14

15 34. FitCapri has caused and, unless restrained and enjoined by this Court,
16 will continue to cause irreparable harm, damage and injury to CIA, including but
17 not limited to injury to CIA’s goodwill and business reputation.
18 35. As a result of FitCapri’s acts, CIA has suffered, is suffering, and will
19 continue to suffer irreparable injury for which CIA has no adequate remedy at law.
20 CIA is therefore entitled to a permanent injunction against further infringing conduct
21 by FitCapri.
22 PRAYER
23 WHEREFORE, Plaintiff prays for an order and judgment against Defendant
24 and requests relief as follows:
25 1. A determination that this action is an exceptional case pursuant to the
26 Patent Act;

10965.004/1092676v1 9
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 10 of 11 Page ID #:10

1 2. A determination that Defendant has infringed the ‘731 Patent;


2 3. That Defendant and its officers, directors, partners, agents, servants,
3 employees, attorneys, confederates, and all persons acting for, with, by, through or
4 under it, and any others within their control or supervision, and all others in active
5 concert or participation with the above, be enjoined during the pendency of this action
6 and permanently thereafter from infringing the ‘731 Patent in the manufacturing,
7 marketing, sales, distribution, promotion, advertising, identification, or in any other
8 manner in connection with apparel in the United States;
9 4. That Defendant, and each of its officers, directors, partners, agents,
10 servants, employees, attorneys, confederates, and all persons acting for, with, by,
11 through or under them, and any others within their control or supervision, and all
12 others in active concert or participation with the above, be enjoined during the
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 pendency of this action and permanently thereafter from representing to anyone,


(650) 327-4200

either orally or in writing, that their business or goods are affiliated with CIA in any
THOITS LAW

14

15 way or are approved by CIA;


16 5. For an order requiring Defendant to cease offering for sale its infringing
17 products, and to destroy all patterns, stencils, molds, plates, masters, or means of
18 creating the infringing items;
19 6. For an order requiring Defendant to instruct, within thirty (30) days after
20 the entry of any preliminary or permanent injunction, any third-party website that
21 carries Defendant’s infringing products to cease selling those products at the earliest
22 possible date;
23 7. For an order requiring Defendant to file with the Clerk of this Court and
24 serve CIA, within thirty (30) days after the entry of any preliminary or permanent
25 injunction, a report in writing, under oath, setting forth in detail the manner and form
26 in which Defendant has complied with 1 through 7 above;

10965.004/1092676v1 10
COMPLAINT
Case 2:18-cv-02192 Document 1 Filed 03/15/18 Page 11 of 11 Page ID #:11

1 8. For an award of Defendant’s profits and CIA’s damages according to


2 proof at trial and as detailed in this Complaint;
3 9. For an award of three times CIA’s damages or Defendant’s profits in
4 view of the intentional and willful nature of Defendant’s acts, pursuant to 35 U.S.C.
5 section 285 and as detailed in this Complaint;
6 10. For an order requiring Defendant to account for and pay to CIA all gains,
7 profits and advantages derived by Defendant from the unlawful activities alleged
8 herein, and/or as a result of unjust enrichment as detailed in this Complaint;
9 11. For an award of punitive damages according to proof;
10 12. For an award of CIA’s attorneys’ fees for bringing and prosecuting this
11 action pursuant to 35 U.S.C. section 285 and all applicable state statutes;
12 13. For an award of CIA’s costs and expenses incurred in bringing and
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250

13 prosecuting this action pursuant to 35 U.S.C. section 285 and all applicable state
(650) 327-4200

statutes; and
THOITS LAW

14

15 14. For such further relief as this Court shall deem just and proper.
16 JURY DEMAND
17 Plaintiff Color Image Apparel, Inc. hereby demands trial by jury in the
18 above entitled action pursuant to Fed. R. Civ. P. 38(b).
19

20 Dated: March 15, 2018


THOITS LAW
21

22 By: /s/ Andrew P. Holland


Andrew P. Holland
23 Attorneys for Plaintiff
Color Image Apparel, Inc.
24

25

26

10965.004/1092676v1 11
COMPLAINT
Case 2:18-cv-02192 Document 1-1 Filed 03/15/18 Page 1 of 8 Page ID #:12
Exhibit A

True and Correct Copy of the ’731 Patent


Case 2:18-cv-02192 Document 1-1 Filed 03/15/18 Page 2 of 8 Page ID #:13
Case 2:18-cv-02192 Document 1-1 Filed 03/15/18 Page 3 of 8 Page ID #:14
Case 2:18-cv-02192 Document 1-1 Filed 03/15/18 Page 4 of 8 Page ID #:15
Case 2:18-cv-02192 Document 1-1 Filed 03/15/18 Page 5 of 8 Page ID #:16
Case 2:18-cv-02192 Document 1-1 Filed 03/15/18 Page 6 of 8 Page ID #:17
Case 2:18-cv-02192 Document 1-1 Filed 03/15/18 Page 7 of 8 Page ID #:18
Case 2:18-cv-02192 Document 1-1 Filed 03/15/18 Page 8 of 8 Page ID #:19
Case 2:18-cv-02192 Document 1-2 Filed 03/15/18 Page 1 of 1 Page ID #:20
Exhibit B

True and Correct Copies of Photographs of the Infringing Accused Product as Displayed
on FitCapri’s Website
Case 2:18-cv-02192 Document 1-3 Filed 03/15/18 Page 1 of 2 Page ID #:21
Exhibit C

Side-by-Side Comparisons of the ’731 Patent design (left), with the infringing
Racer Leggings (right)

Table 1: Comparison of ’731 Patent


and Defendant’s Infringing Racer Leggings
’731 Patent Figures Defendant’s Infringing Leggings

Figure 1

Figure 2
Case 2:18-cv-02192 Document 1-3 Filed 03/15/18 Page 2 of 2 Page ID #:22

Figure 3

Figure 5
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 1 of 12 Page ID #:23

T HOITS LAW 400 Main Street, Suite 250


A Professional Corporation Los Altos, California 94022
TEL (650) 327-4200
FAX (650) 325-5572
www.thoits.com

Andrew P. Holland (650) 330-4709


aholland@thoits.com

August 30, 2017

Via E-mail (info@FitCapri.com) and U.S. Mail

WhoisGuard, Inc.
Attn: FitCapri.com
P.O. Box 0823-03411
Republic of Panama

Re: Cease and Desist of Infringement of U.S. Patent No. D774,731 S

To whom it may concern:

This law firm represents Color Image Apparel, Inc. (“Color Image”) in connection
with the protection and enforcement of its United States Patent No. D774,731 S (the “'731
Patent”), which covers products sold under Alo’s “Moto Legging” collection. A copy of this
patent is enclosed for your reference.

We compared your company’s “Racer Leggings” that are being sold on the
FitCapri.com website (see Exhibit A attached hereto) against the ’731 Patent. Based on our
analysis, Color Image believes that these products infringe the ’731 Patent in violation of
Section 271 of the Patent Act.

Under United States Code, Title 35, patent infringement is defined as “the unauthorized
making, using, offering for sale, or selling any patented invention within the United States or
U.S. Territories, or importing into the United States of any patented invention during the term
of the patent.” See 35 U.S.C. § 271. Under this Title, available remedies for patent
infringement include injunctive relief and damages or other monetary relief. Similarly, under §
285 of this Title, attorney’s fees may also be available.

In addition to notifying you of Color Image’s patent rights, the purpose of this letter is to
request that you:

1. Immediately cease and desist from all further activity that infringes the claims of
the '731 Patent.

2. Provide Color Image with sufficient information to determine the number of all
infringing products made, used, offered for sale, sold or imported and all proceeds
therefrom and pay suitable damages for the infringement.
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 2 of 12 Page ID #:24
FitCapri
August 30, 2017
Page 2

3. Promptly provide Color Image with written confirmation that FitCapri will
comply with these demands.

FitCapri is specifically advised that any failure or delay in complying with these requests
may compound the damages for which FitCapri may be liable. If Color Image does not receive
a satisfactory response to these requests by the close of business on September 13, 2017, Color
Image is prepared to take all steps necessary to protect its valuable intellectual property rights.

The above is not an exhaustive statement of all the relevant facts and law. Color Image
expressly reserves all of its legal and equitable rights and remedies, including the right to seek
injunctive relief and recover monetary damages.

I look forward to your prompt response.

Sincerely,

THOITS LAW

Andrew P. Holland
Andrew P. Holland

APH:ds
Enclosure
cc: Michael Hsueh, Esq. (via e-mail to mhsueh@thoits.com)

10965.004/1001789
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 3 of 12 Page ID #:25
EXHIBIT A
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 4 of 12 Page ID #:26
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 5 of 12 Page ID #:27
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 6 of 12 Page ID #:28
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 7 of 12 Page ID #:29
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 8 of 12 Page ID #:30
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 9 of 12 Page ID #:31
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 10 of 12 Page ID #:32
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 11 of 12 Page ID #:33
Case 2:18-cv-02192 Document 1-4 Filed 03/15/18 Page 12 of 12 Page ID #:34
Case 2:18-cv-02192 Document 1-5 Filed 03/15/18 Page 1 of 13 Page ID #:35

T HOITS LAW 400 Main Street, Suite 250


A Professional Corporation Los Altos, California 94022
TEL (650) 327-4200
FAX (650) 325-5572
www.thoits.com

Andrew P. Holland (650) 330-4709


aholland@thoits.com

November 7, 2017

Via E-Mail Only


FitCapri
info@FitCapri.com

Re: Cease and Desist of Infringement of United States Design Patent No. US
D774,731 S

To whom it may concern:

This law firm represents Color Image Apparel, Inc. (“Color Image”) in connection
with the protection and enforcement of its United States Patent No. D774,731 S (the “’731
Patent”), which covers products sold under Alo’s “Moto Legging” collection.

I wrote to you on August 30, 2017 regarding your potential violation of my client’s
intellectual property rights and requested that you provide certain written assurances that
you would cease and desist from participating in any further infringing activity and provide
certain information relevant to this dispute. A copy of that letter is enclosed for your
reference. To date, I have not received a response from you. In addition, your “Racer
Leggings – Black” product is still available on www.fitcapri.com.

I request a response by the close of business on November 22, 2017. If I do not hear
from you by that date, Color Image will be forced to consider its options.

I look forward to your prompt response.

Sincerely,

THOITS LAW

Andrew P. Holland
Andrew P. Holland

APH:mg/ds
Enclosure

cc: Misasha Graham, Esq. (via e-mail to mgraham@thoits.com

10965.004/1034617
Case 2:18-cv-02192 Document 1-5 Filed 03/15/18 Page 2 of 13 Page ID #:36

T HOITS LAW 400 Main Street, Suite 250


A Professional Corporation Los Altos, California 94022
TEL (650) 327-4200
FAX (650) 325-5572
www.thoits.com

Andrew P. Holland (650) 330-4709


aholland@thoits.com

August 30, 2017

Via E-mail (info@FitCapri.com) and U.S. Mail

WhoisGuard, Inc.
Attn: FitCapri.com
P.O. Box 0823-03411
Republic of Panama

Re: Cease and Desist of Infringement of U.S. Patent No. D774,731 S

To whom it may concern:

This law firm represents Color Image Apparel, Inc. (“Color Image”) in connection
with the protection and enforcement of its United States Patent No. D774,731 S (the “'731
Patent”), which covers products sold under Alo’s “Moto Legging” collection. A copy of this
patent is enclosed for your reference.

We compared your company’s “Racer Leggings” that are being sold on the
FitCapri.com website (see Exhibit A attached hereto) against the ’731 Patent. Based on our
analysis, Color Image believes that these products infringe the ’731 Patent in violation of
Section 271 of the Patent Act.

Under United States Code, Title 35, patent infringement is defined as “the unauthorized
making, using, offering for sale, or selling any patented invention within the United States or
U.S. Territories, or importing into the United States of any patented invention during the term
of the patent.” See 35 U.S.C. § 271. Under this Title, available remedies for patent
infringement include injunctive relief and damages or other monetary relief. Similarly, under §
285 of this Title, attorney’s fees may also be available.

In addition to notifying you of Color Image’s patent rights, the purpose of this letter is to
request that you:

1. Immediately cease and desist from all further activity that infringes the claims of
the '731 Patent.

2. Provide Color Image with sufficient information to determine the number of all
infringing products made, used, offered for sale, sold or imported and all proceeds
therefrom and pay suitable damages for the infringement.
Case 2:18-cv-02192 Document 1-5 Filed 03/15/18 Page 3 of 13 Page ID #:37
FitCapri
August 30, 2017
Page 2

3. Promptly provide Color Image with written confirmation that FitCapri will
comply with these demands.

FitCapri is specifically advised that any failure or delay in complying with these requests
may compound the damages for which FitCapri may be liable. If Color Image does not receive
a satisfactory response to these requests by the close of business on September 13, 2017, Color
Image is prepared to take all steps necessary to protect its valuable intellectual property rights.

The above is not an exhaustive statement of all the relevant facts and law. Color Image
expressly reserves all of its legal and equitable rights and remedies, including the right to seek
injunctive relief and recover monetary damages.

I look forward to your prompt response.

Sincerely,

THOITS LAW

Andrew P. Holland
Andrew P. Holland

APH:ds
Enclosure
cc: Michael Hsueh, Esq. (via e-mail to mhsueh@thoits.com)

10965.004/1001789
Case 2:18-cv-02192 Document 1-5 Filed 03/15/18 Page 4 of 13 Page ID #:38
EXHIBIT A
Case 2:18-cv-02192 Document 1-5 Filed 03/15/18 Page 5 of 13 Page ID #:39
Case 2:18-cv-02192 Document 1-5 Filed 03/15/18 Page 6 of 13 Page ID #:40
Case 2:18-cv-02192 Document 1-5 Filed 03/15/18 Page 7 of 13 Page ID #:41
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