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Case 3:18-cv-00314-JCH Document 17 Filed 05/11/18 Page 1 of 48

UNITED STATES DISTRICT COURT


DISTRICT OF CONNECTICUT

AMPAC ENTERPRISES INC., Civil Action No. 3:18-cv-00314-JCH


Plaintiff,

vs.
May 11, 2018
FORCE3 PRO GEAR, LLC,
Defendant.

FIRST AMENDED COMPLAINT


Plaintiff Ampac Enterprises, Inc. (“Ampac”) hereby alleges as follows, upon actual

knowledge with respect to itself and its own acts, and upon information and belief as to all other

matters:

NATURE OF THE ACTION


1. This is a civil action for false advertising, trade dress infringement, unfair

competition, and false designation of origination, under Section 43(a) of the Lanham Act, 15

U.S.C. § 1125(a), and patent infringement under the Patent Laws of the United States, 35 U.S.C.

§ 101 et seq.

2. Ampac brings this action against Force3 Pro Gear, LLC (“Force3”), seeking relief

from Force3’s false and misleading use of various advertising claims including (1) that Force3’s

“Comparative Tests Show a Reduction UP TO 50% Severity Index When Compared to Other

Masks;” (2) that “the Defender’s patent pending technology reduces the forces of most frontal

impacts by up to 50% in most cases;” (3) that “[i]ndependent test results concluded that nothing

comes close to the protection as the Defender;” and (4) that its Hockey-Style Mask “will protect
Case 3:18-cv-00314-JCH Document 17 Filed 05/11/18 Page 2 of 48

you a LOT better than the mask you use now” in advertising and promoting its catcher’s masks.

Upon information and belief, Force3’s advertising claims are false and misleading because

Force3 only tested a highly limited sample of “other masks” and the test data does not prove by

competent and reliable scientific evidence the statements being made by Force3. An injunction

against Force3’s false and misleading advertising claims is necessary to protect the public from

deception and to protect Ampac from the unfair business advantages conferred thereby.

3. Ampac owns exclusive rights in the ornamental design claimed in U.S. Patent No.

D628,347 (the “ʼ347 Patent”). Upon information and belief, Force3 has used and continues to

use the claimed design in the ʼ347 Patent, without Ampac’s permission, on a version of its

hockey-style helmet that Force3 makes, has made, uses, offers for sale, sells, and/or imports into

the United States. Ampac seeks, among other relief, an injunction preventing Force3 from

further infringing the ʼ347 Patent, and damages and/or a disgorgement of Force3’s profits from

its patent infringement.

4. Ampac owns exclusive rights in its designs for the shell of its hockey-style

helmet, Delta Flex® face mask harness, Delta Flex® chest protector harness, and Pro-Elite®

catchers mitt. Upon information and belief, Force3 has used and continues to use Ampac’s trade

dress, without Ampac’s permission, on a version of its hockey-style helmet, its Pro Catcher’s

Harness, a version of its chest protector harness, and a version of its catcher’s mitt. Ampac

seeks, among other relief, an injunction preventing Force3 from further infringing Ampac’s

distinctive trade dress.

PARTIES
5. Plaintiff Ampac (“Ampac”) is a Massachusetts corporation with a principal place

of business in Shirley, Massachusetts.

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6. On information and belief, Defendant Force3 Pro Gear, LLC (“Force3”) is a

Connecticut limited liability company with its principle place of business in Derby, Connecticut.

7. Force3 conducts business and manufactures and/or distributes products within the

District of Connecticut and throughout the United States. For example, according to Force3’s

website, Force3 sells its products through authorized retailers, at least one of which is located in

Enfield, Connecticut. In addition, on information and belief, consumers throughout the United

States purchase sports equipment and other items through the internet website operated by

Force3.

JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction over this action pursuant to 15 U.S.C.

§ 1121 (Lanham Act claims), 35 U.S.C. § 101 et seq., (patent infringement claim) and 28 U.S.C.

§§ 1331 and 1338 (federal question).

9. This Court also has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)

in that there is complete diversity of citizenship between the parties and the amount in

controversy exceeds the sum of $75,000, exclusive of interest and costs. This Court also has

jurisdiction over Force3 at least because Force3 transacts and solicits business in this district,

including with respect to Force3 products that infringe the ʼ347 Patent and Ampac’s trade dress,

and because Force3 is committing and has committed acts of infringement in this district, at least

by selling and offering products that infringe the ʼ347 Patent and Ampac’s trade dress.

10. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)(1) and (2)

because Force3 resides in this District and the activity about which Ampac complains has taken

place and is continuing to take place in this District.

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FACTUAL ALLEGATIONS

11. This action seeks redress for Force3’s deliberate and unlawful false and

misleading representations regarding its Defender Mask – V2 (“Traditional Mask”) and

Defender Hockey Style Mask (Hockey Style Mask”) (collectively “Force3 Products”), which are

marketed and sold by Force3 based on numerous false representations detailed in this Amended

Complaint, as well as claims for patent infringement and trade dress infringement.

I. AMPAC, ITS PRODUCTS, AND ITS INTELLECTUAL PROPERTY

12. For many years, Ampac, which does business as All-Star Sporting Goods®, has

designed, developed, made, and sold a wide array of equipment for baseball and other sports. As

a result, Ampac is well known for having a strong reputation and presence among professional

and amateur baseball players and umpires.

13. Ampac’s products include sports equipment such as gloves and mitts and

protective equipment such as face masks and helmets, chest protectors, leg guards, and batting

helmets. Ampac’s products are marketed and sold to professional and amateur players and

umpires via direct sales to organizations, retail channels, and through its website.

14. Ampac manufactures and sells traditional face masks (“Ampac Traditional

Mask”) and hockey-style helmets (“Ampac Hockey-Style Helmet”) (collectively “Ampac

Masks”). Ampac manufactures and sells the Ampac Masks under its All-Star brand and the

trademarks System Seven™, and S7™, among others. Ampac also manufactures the Ampac

Hockey-Style Helmet for Under Armour.

15. The Ampac Delta Flex® face mask harness (“Ampac Delta Flex® Face Mask

Harness”) is sold both with the Ampac Traditional Mask and separately.

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16. Ampac sells the Ampac Masks and Ampac Delta Flex® Face Mask Harness in

competition with Force3.

17. Ampac sells chest protectors with its Delta Flex® chest protector harness (“Ampac

Delta Flex® Chest Protector Harness”). The Ampac Delta Flex® Chest Protector Harness is also

available for purchase separately. Ampac sells its chest protectors and the Ampac Delta Flex®

Chest Protector Harness in competition with Force3. Ampac also manufactures its chest

protectors and the Ampac Delta Flex® Chest Protector Harness for Under Armour.

18. Ampac sells catchers mitts under the trademarks Pro-Elite®, Pro Advanced™, Pro

Comp™, among others. The Pro-Elite® Catchers Mitt is Ampac’s top end model. Ampac sells

its catchers mitts, including the Pro-Elite® Catchers Mitt, in competition with Force3.

19. Ampac has taken steps to protect the innovative designs that it uses on its

products, including its designs and trade dress related to the Ampac Hockey-Style Helmet, the

Ampac Delta Flex® Face Mask Harness, the Ampac Delta Flex® Chest Protector Harness, and

the Pro-Elite® Catchers Mitt.

A. Patent-in-Suit

20. Ampac’s innovative design in the shell of its Ampac Hockey-Style Helmet, i.e.,

the Ampac Hockey-Style Helmet without a cage attached (“Ampac Hockey-Style Helmet

Shell”), is protected in U.S. Patent No. D628,347 for Catcher Helmet (“the ʼ347 Patent”), which

was duly and legally issued by the United States Patent and Trademark Office on November 30,

2010 naming Shyan-Wei Chen as the sole inventor. A true and accurate copy of the ʼ347 Patent

is attached as Exhibit 1.

21. Ampac owns, by way of assignment, all right, title, and interest in, and has the

right to sue and recover for infringement of the ʼ347 Patent.

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22. The ʼ347 Patent is presumed to be valid.

23. Ampac employs the design claimed in the ʼ347 Patent in the Ampac Hockey-Style

Helmet Shell and hockey-style masks manufactured by Ampac for Under Armour.

24. Ampac provides the public with constructive notice of the ʼ347 Patent pursuant to

35 U.S.C. § 287.

B. Ampac’s Well-Known Trade Dress

25. In an effort to set itself apart from its competitors, Ampac designs its products to

have distinctive and recognizable features so that the public will readily identify the overall look

and feel of Ampac’s and Ampac’s licensees’ products as originating from a single source.

i. Ampac’s Hockey-Style Helmet Trade Dress

26. For example, in addition to the ʼ347 Patent, the Ampac Hockey-Style Helmet

Shell bears a unique and distinctive trade dress in its overall design (“Hockey-Style Helmet

Trade Dress”). The Hockey-Style Helmet Trade Dress as a whole does not affect the cost or

quality of the Ampac Hockey-Style Helmet Shell or serve any functional purpose. Moreover, the

Hockey-Style Helmet Trade Dress, when used exclusively by Ampac or its licensees, does not

put Ampac’s competitors at a significant reputation-related disadvantage as it is not the only

option for the design of the shell of a hockey-style helmet used in baseball.

27. As shown below, key elements of the Hockey-Style Helmet Trade Dress include,

but are not limited to: (a) contour of main shell (jawline and back of head), (b) placement of

bevels and vents on main shell; (c) contour of back plate; and (d) placement of bevels and vents

on back plate.

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28. The striking and distinctive nature of the Hockey-Style Helmet Trade Dress

ensures that, even from far away, e.g., on a baseball field or as viewed via a televised baseball

game, consumers will recognize that it is a product emanating from Ampac.

29. In the United States, the Ampac Hockey-Style Helmet Shell with its Hockey-Style

Helmet Trade Dress is sold through a wide variety of channels including, but not limited to:

 Dick’s Sporting Goods;

 Academy Sports and Outdoors;

 Hibbett Sports;

 Retailer’s websites including, but not limited to, www.dickssportinggoods.com,

www.baseballexpress.com, www.ump-attire.com, www.baseballwarehouse.com,

www.baseballbargains.com, www.baseballmonkey.com,

www.sportsunlimitedinc.com, and www.sportsdepot.com; and

 Ampac’s own online store at www.all-starsports.com.

30. Since it was introduced in 2010, the Ampac Hockey-Style Helmet has sold

extremely well and is worn by at least over a quarter of all MLB catchers.

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31. As a result of Ampac’s widespread use and display of the Hockey-Style Helmet

Trade Dress in association with the Ampac Hockey-Style Helmet Shell, the public has come to

recognize and identify products bearing the Hockey-Style Trade Dress as originating from

Ampac. The public also recognizes that products bearing the Hockey-Style Trade Dress

constitute high quality products that conform to the specifications created and adhered to by

Ampac. Accordingly, the Hockey-Style Trade Dress has established strong secondary meaning

and has acquired distinctiveness in that consumers recognize the Hockey-Style Trade Dress as

emanating from a single source. The Hockey-Style Helmet Trade Dress achieved this status long

before Force3 first began its infringing activities described below.

32. The Hockey-Style Trade Dress represents extensive goodwill of Ampac and is a

tremendously valuable asset of Ampac.

ii. Ampac’s Face Mask Harness Trade Dress

33. The Ampac Delta Flex® Face Mask Harness bears a unique and distinctive trade

dress in the overall design (“Face Mask Harness Trade Dress”). The Face Mask Harness Trade

Dress as a whole does not affect the cost or quality of the Ampac Delta Flex® Face Mask

Harness or serve any functional purpose. Moreover, the Face Mask Harness Trade Dress, when

used exclusively by Ampac or its licensees, does not put Ampac’s competitors at a significant

reputation-related disadvantage as it is not the only option for the design of a face mask harness.

34. As shown below, key elements of the Face Mask Trade Dress include, but are not

limited to: (a) the contour of harness, (b) the middle cutout; and (c) contrasting piping

surrounding the perimeter of the harness and middle cutout with zigzag patterning thereon.

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35. The distinctive nature of the Face Mask Harness Trade Dress ensures that, even

from far away, e.g., on a baseball field or as viewed via a televised baseball game, consumers

will recognize that it is a product emanating from Ampac.

36. In the United States, the Ampac Delta Flex® Face Mask Harness with its Face

Mask Harness Trade Dress is sold through a wide variety of channels including, but not limited

to:

 Retailer’s websites including, but not limited to, www.baseballexpress.com

www.baseballwarehouse.com, www.baseballbargains.com,

www.baseballmonkey.com, www.sportsunlimitedinc.com, and

www.sportsdepot.com; and

 Ampac’s own online store at www.all-starsports.com.

37. Since it was introduced in mid-2004, the Ampac Delta Flex® Face Mask Harness

has sold extremely well and is worn by over 20 percent of MLB catchers.

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38. As a result of Ampac’s widespread use and display of the Face Mask Harness

Trade Dress in association with the Ampac Traditional Mask and Delta Flex® Face Mask

Harness, the public has come to recognize and identify products bearing the Face Mask Harness

Trade Dress as originating from Ampac. The public also recognizes that products bearing the

Face Mask Harness Trade Dress constitute high quality products that conform to the

specifications created and adhered to by Ampac. Accordingly, the Face Mask Harness Trade

Dress has established strong secondary meaning and has acquired distinctiveness in that

consumers recognize the Face Mask Harness Trade Dress as emanating from a single source.

39. The Face Mask Harness Trade Dress achieved this status long before Force3 first

began its infringing activities described below.

40. The Face Mask Harness Trade Dress represents extensive goodwill of Ampac and

is a tremendously valuable asset of Ampac.

iii. Ampac’s Chest Protector Harness Trade Dress

41. The Ampac Delta Flex® Chest Protector Harness bears a unique and distinctive

trade dress in the overall design (“Chest Protector Harness Trade Dress”). The Chest Protector

Harness Trade Dress as a whole does not affect the cost or quality of the Ampac Delta Flex®

Chest Protector Harness or serve any functional purpose. Moreover, the Chest Protector Harness

Trade Dress, when used exclusively by Ampac or its licensees, does not put Ampac’s

competitors at a significant reputation-related disadvantage as it is not the only option for the

design of a chest protector harness. An example of the Chest Protector Harness Trade Dress is

depicted below.

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42. The distinctive nature of the Chest Protector Harness Trade Dress ensures that,

even from far away, e.g., on a baseball field or as viewed via a televised baseball game,

consumers will recognize that it is a product emanating from Ampac.

43. In the United States, the Ampac Delta Flex® Chest Protector Harness with its

Chest Protector Harness Trade Dress is sold through a wide variety of channels including, but

not limited to:

 Dick’s Sporting Goods;

 Academy Sports and Outdoors;

 Hibbett Sports;

 Retailer’s websites including, but not limited to, www.baseballexpress.com,

www.baseballwarehouse.com, www.baseballbargains.com,

www.baseballmonkey.com, www.sportsunlimitedinc.com, and

www.sportsdepot.com; and

 Ampac’s own online store at www.all-starsports.com.

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44. Since it was introduced in mid-2007, the Ampac Delta Flex® Chest Protector

Harness has sold extremely well. For example, in the fall of the 2016 MLB season, over 50

percent of MLB catchers used the Delta Flex® Chest Protector Harness.

45. As a result of Ampac’s widespread use and display of the Chest Protector Harness

Trade Dress in association with the Ampac’s chest protectors and the Delta Flex® Chest

Protector Harness used in conjunction therewith, the public has come to recognize and identify

products bearing the Chest Protector Harness Trade Dress as originating from Ampac. The

public also recognizes that products bearing the Chest Protector Harness Trade Dress constitute

high quality products that conform to the specifications created and adhered to by Ampac.

Accordingly, the Chest Protector Harness Trade Dress has established strong secondary meaning

and has acquired distinctiveness in that consumers recognize the Chest Protector Trade Dress as

emanating from a single source.

46. The Chest Protector Harness Trade Dress achieved this status long before Force3

first began its infringing activities described below.

47. The Chest Protector Harness Trade Dress represents extensive goodwill of Ampac

and is a tremendously valuable asset of Ampac.

iv. Ampac’s Catchers Mitt Trade Dress

48. Ampac’s Pro-Elite® Catchers Mitt bears a unique and distinctive trade dress in the

overall design (“Catchers Mitt Trade Dress”). The Catchers Mitt Trade Dress as a whole does

not affect the cost or quality of the Pro-Elite® Catchers Mitt or serve any functional purpose.

Moreover, the Catchers Mitt Trade Dress, when used exclusively by Ampac, does not put

Ampac’s competitors at a significant reputation-related disadvantage as it is not the only option

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for the design of a catchers mitt. An example of the Catchers Mitt Trade Dress is depicted

below.

49. The distinctive nature of the Catchers Mitt Trade Dress ensures that, even from

far away, e.g., on a baseball field or as viewed via a televised baseball game, consumers will

recognize that it is product emanating from Ampac.

50. In the United States, Ampac’s Pro-Elite® Catchers Mitt with its Catchers Mitt

Trade Dress is sold through a wide variety of channels including, but not limited to:

 Retailer’s websites including, but not limited to, baseballexpress.com,

baseballwarehouse.com, www.baseballbargains.com, www.baseballmonkey.com,

and www.sportsunlimitedinc.com; and

 Ampac’s own online store at www.all-starsports.com.

51. Since it was introduced in 1996, Ampac’s Pro-Elite® Catchers Mitt has sold

extremely well and is worn by over a quarter of all MLB catchers.

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52. As a result of Ampac’s widespread use and display of the Catchers Mitt Trade

Dress in association with the Ampac’s Pro-Elite® Catchers Mitt, the public has come to recognize

and identify products bearing the Catchers Mitt Trade Dress as originating from Ampac. The

public also recognizes that products bearing the Catchers Mitt Trade Dress constitute high

quality products that conform to the specifications created and adhered to by Ampac.

Accordingly, the Catchers Mitt Trade Dress has established strong secondary meaning and has

acquired distinctiveness in that consumers recognize the Catchers Mitt Trade Dress as emanating

from a single source.

53. The Catchers Mitt Trade Dress achieved this status long before Force3 first began

its infringing activities described below.

54. The Catchers Mitt Trade Dress represents extensive goodwill of Ampac and is a

tremendously valuable asset of Ampac.

55. For ease of reference, the Hockey-Style Helmet Trade Dress, Face Mask Harness

Trade Dress, Chest Protector Harness Trade Dress, and Catchers Mitt Trade Dress are

collectively referred to as “Ampac’s Trade Dress.”

II. FORCE3, ITS FALSE ADVERTISING CAMPAIGN, AND INFRINGING

ACTIVITY

56. Force3 is a sports retailer that offers and sells protective sports equipment to

professionals and amateurs through the website www.force3progear.com and via authorized

retailers and partners. In particular, Force3 offers and sells a Traditional Mask and a Hockey-

Style Mask under the trade name Defender. Force3 also offers catcher’s harnesses for face

masks, chest protectors and related harnesses, and catchers mitts.

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57. Upon information and belief, Force3 also engages in direct sales to organizations

such as Major League Baseball, South Atlantic League, Area Code Baseball, Babe Ruth League,

Cal Ripken Baseball, Eastern College Athletic Conference, and Amateur Baseball Umpires’

Association.

A. Force3’s False Advertising Campaign

58. Force3’s Traditional Mask is marketed and sold by Force3 on its own website and

on partner websites based on the representation that “the Defender’s patent pending technology

reduces the forces of most frontal impacts by up to 50% in most cases.” See, e.g.,

http://www.force3progear.com/product/defender-mask/ (Exhibit 2); see also

http://store.baberuthleague.org/force3-defender-mask (Exhibit 3).

59. Force3’s Traditional Mask is also promoted and sold with the claim that

“[i]ndependent test results concluded that nothing comes close to the protection as the

Defender.” Exhibit 2.

60. Force3 claims on a partner’s website that, for its Hockey-Style Mask, “[w]ith the

same footprint of a traditional hockey style mask, the Defender’s patent pending technology

reduces the Severity Index of most impacts by up to 50% in most cases.” See

http://store.baberuthleague.org/force3-pro-adult-hockey-style-mask (Exhibit 4).

61. The severity index, which is a measure of the total energy of the impact reaching

a biofidelic headform, is a recognized testing condition within the sports equipment industry and

among educated sports equipment consumers. It is not a statement of subjective opinion, but is

capable of being systematically, reliably, and scientifically measured within a certain threshold.

In fact, the National Operating Committee on Standards for Athletic Equipment (“NOCSAE”)

establishes performance requirements for baseball/softball catcher’s helmets. See Exhibit 5. The

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specifications set forth by NOCSAE require the peak severity index of any impact to not exceed

1200 SI. Id. at Page 4, Para. 6.2. A test system must be calibrated at 1200 SI and verified

between 300 SI and 1997 SI. See Exhibit 6.

62. Upon information and belief, Force3 began advertising and promoting its

Traditional Mask at least as early as June 2014 with the claim that “Comparative Tests Show a

Reduction UP TO 50% Severity Index When Compared to Other Masks:” accompanied by

images of four other masks directly below the verbiage (“Advertisement 1”). See Exhibit 7.

This constitutes a distinct claim that the superiority of Force3 Products over the four other masks

shown has been proven by competent and reliable scientific evidence.

63. Upon information and belief, while identifying markings were removed from the

four other masks in Advertisement 1, the two masks on the left are sold or manufactured by

Ampac.

64. Upon information and belief, around this same timeframe, the same claim was

also included in other advertising and promotional materials in association with both the

Traditional Mask and the Hockey Style Mask offered by Force3. See Exhibit 8. This

advertisement also makes the claim that “the Defender’s patent pending shock suspension system

reduces the Severity Index of impacts up to 50% in most cases” and features a “TEST

RESULTS” portion including graphical depictions of the Severity Index test data where three

unidentified masks are compared to Force3 at different impact speeds (i.e., 70 mph softball

impact and 100 mph baseball impact). Id. at 2. The fine print in this advertisement states that

“Comparative ‘Masks A, B & C’ are all different brand name, popular, current day masks

typically worn in baseball competition.” Id.

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65. Upon information and belief, the three unidentified masks in the “TEST

RESULTS” portion of the advertisement in Exhibit 8 do not include any Ampac masks even

though two of the masks depicted just to the left of the “TEST RESULTS” are sold or

manufactured by Ampac. In fact, in a U.S. patent application filed on May 1, 2014, Force3

included the identical raw data shown in the “TEST RESULTS” portion (and more), which

distinctly allows the identification of Mask A as Wilson, Mask B as Rawlings, and Mask C as

Champion. See Exhibit 9 (U.S. Patent Publication No. 2016-0066642) at Para. [0074], Tables 1

and 2.

66. Upon information and belief, Force3 did not possess any test data or results

pertaining to any Ampac masks when Advertisement 1 was first used by Force3.

67. The “TEST RESULTS” portion of the advertisement in Exhibit 8 also is false and

misleading because of Force3’s selective use of data. In the advertisement, Force3 deliberately

and willfully used data that selected the most favorable data points for its product and the least

favorable data points for competitor mask products.

68. Upon information and belief, Force3 has continued similar advertising and

promoting of Force3Products branded under Force3 and co-branded with Douglas. In particular,

at its booth at the National Athletic Trainer’s Association in June 2015, Force3 distributor

Douglas displayed and made flyers available with Advertisement 1. See Exhibit 10. In addition,

upon information and belief, Force3 displayed Advertisement 1 at the 2017 MLB Winter

Meetings Equipment Manager show in December 2017. See Exhibit 11.

69. Upon information and belief, Force3 Products have been and are currently

accompanied by an attached hang tag and/or a brochure that includes Advertisement 1. See

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Exhibits 12-13 and 14. Upon information and belief, Advertisement 1 also appears in Force3’s

printed catalog that goes to retailers and is displayed on Force3’s packaging for its catcher’s kits.

70. The Force3 Products do not, in fact, reduce the Severity Index up to 50 percent

when compared to the masks depicted (or even the masks identified in the TEST RESULTS

portion of Exhibit 8). Upon information and belief, even as to the limited sub-set of comparative

masks evaluated in the tests conducted by Force3, those tests do not constitute competent and

reliable scientific evidence that Force3 Products reduce the Severity Index up to 50 percent over

any of the masks depicted or included in the graphs as claimed by Force3.

71. Force3’s claim that its Hockey-Style Mask “will protect you a LOT better than

the mask you use now” is false. See, e.g., Exhibit 15. As discussed supra, the test data cannot

and does not support a claim that its Hockey-Style Mask will offer more protection than any

other mask worn because the test data is based on a highly limited sample size.

72. Where Force3 claims its Hockey-Style Mask “will protect you a LOT better than

the mask you use now” and also regularly promotes its catcher’s masks with reference to test

result data, its claim also is false and misleading. Due to the specificity of the claim and in that

context, the claim indicates to the consumer that the claim the mask “will protect you a LOT

better than the mask you use now” is supported by reliable scientific test data. It is not.

73. Upon information and belief, Force3 uses or has used these claims in tandem with

scare tactics such as “Order Now. Don’t wait one game too long!” (see, e.g., Exhibit 15) and

undefinable assurances such as “[t]he Force3 Defender assures a catcher of up to 100% MORE

PROTECTION from concussive shock” (Exhibit 16).

74. Upon information and belief, Force3 has also verbally made superiority claims

about Force3 Products compared to Ampac masks to professional players and/or their

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representatives as well as parents of amateur players by stating that Force3 Products are 75

percent safer than Ampac’s products.

75. Upon information and belief, Force3 actively uses its social media to post videos

of players getting hit with a projectile while wearing Ampac’s products and inferring a lack of

safety even when the player is not actually injured. See, e.g., Exhibit 17.

B. Force3’s Infringing Hockey-Style Helmet

76. Upon information and belief, at least as early as mid-February 2018, Force3

began to market and offer for sale a new version of its hockey-style mask (“Force3 2018

Hockey-Style Mask”) that infringes the ʼ347 Patent. See Exhibit 18.

77. Upon information and belief, the overall appearance of the design of the ʼ347

Patent and the corresponding design of the Force3 2018 Hockey-Style Mask are substantially the

same.

78. Upon information and belief, an ordinary observer will perceive the overall

appearance of the design of the ʼ347 Patent and the corresponding design of the Force3 2018

Hockey-Style Mask to be substantially the same.

79. Table 1 below illustrates Force3’s infringement by comparing figures from the

ʼ347 Patent with exemplary images of the Force3 2018 Hockey-Style Mask.

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Table 1: Comparison of the ʼ347 Patent with Force3 2018 Hockey-Style Mask

ʼ347 Patent Force3 2018 Hockey-Style Mask

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Table 1: Comparison of the ʼ347 Patent with Force3 2018 Hockey-Style Mask

ʼ347 Patent Force3 2018 Hockey-Style Mask

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Table 1: Comparison of the ʼ347 Patent with Force3 2018 Hockey-Style Mask

ʼ347 Patent Force3 2018 Hockey-Style Mask

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Table 1: Comparison of the ʼ347 Patent with Force3 2018 Hockey-Style Mask

ʼ347 Patent Force3 2018 Hockey-Style Mask

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Table 1: Comparison of the ʼ347 Patent with Force3 2018 Hockey-Style Mask

ʼ347 Patent Force3 2018 Hockey-Style Mask

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Table 1: Comparison of the ʼ347 Patent with Force3 2018 Hockey-Style Mask

ʼ347 Patent Force3 2018 Hockey-Style Mask

80. Upon information and belief, Force3 markets and offers for sale the Force3 2018

Hockey-Style Mask directly to MLB equipment managers and MLB players and agents in the

United States.

81. Upon information and belief, Force3 sold or otherwise provided the Force3 2018

Hockey-Style Mask to certain players for use in Major League Baseball games that were played

in the United States during the 2018 season. Exhibit 18.

82. Upon information and belief, Force3 has infringed and continues to infringe the

ʼ347 Patent within the meaning of 35 U.S.C. § 271 at least by making or having made, using,

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selling, offering to sell, and/or importing Force3 2018 Hockey-Style Masks in the United States

without authorization.

83. Upon information and belief, Force3 knew of the ʼ347 Patent because they have

purchased for comparative testing Ampac Hockey-Style Helmets that are marked with the ʼ347

Patent pursuant to 35 U.S. C. § 287.

84. Upon information and belief, Force3’s infringement of the ʼ347 Patent has been

knowing, willful, and egregious.

C. Force3’s Unlawful Use of Ampac’s Hockey-Style Helmet Trade Dress

85. In addition to Force3’s infringement of the ʼ347 Patent, upon information and

belief, Force3 is importing, marketing, distributing, offering for sale, and selling goods in

interstate commerce that bear a confusingly similar imitation of Ampac’s Hockey-Style Helmet

Trade Dress. There are many ways to design the shell of a hockey-style helmet and, more

specifically, the shell of a hockey-style helmet including a back plate. However, as depicted

below in Table 2, Force3 has chosen to adopt a design for the Force3 2018 Hockey-Style Mask

that is likely to cause confusion and to deceive consumers and the public regarding its source.

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Table 2: Comparison of Hockey Style Helmet Trade Dress with Force3 2018 Hockey-Style Mask

Hockey-Style Helmet Trade Dress Force3 2018 Hockey-Style Mask

86. Ampac used the Hockey-Style Helmet Trade Dress extensively and continuous

before Force3 began using and selling confusingly similar imitations of Ampac’s Hockey-Style

Helmet Shell.

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87. The Force3 2018 Hockey-Style Mask is similar to and competes with products

sold by Ampac, and these products are sold through overlapping channels of trade.

88. The likelihood of confusion engendered by Force3’s misappropriation of

Ampac’s Hockey-Style Helmet Trade Dress is causing irreparable harm to the goodwill

symbolized by the Hockey-Style Helmet Trade Dress and the reputation for quality that it

embodies.

89. Force3’s activities are likely to cause confusion before, during, and after the time

of purchase because purchasers, prospective purchasers, and others viewing the Force3 2018

Hockey-Style Mask at the point of sale or on a player are likely—due to Force3’s use of

confusingly similar imitations of the Hockey-Style Helmet Trade Dress—to mistakenly attribute

the product to Ampac. This is particularly damaging with respect to those persons who perceive

a defect or lack of quality in Force3’s products. By causing such a likelihood of confusion,

mistake, or deception, Force3 is inflicting irreparable harm to the goodwill symbolized by the

Hockey-Style Helmet Trade Dress, and the reputation for quality that it embodies.

90. Upon information and belief, Force3 knowingly, willingly, intentionally, and

maliciously adopted and used confusingly a similar imitation of the Hockey-Style Helmet Trade

Dress in the Force3 2018 Hockey-Style Mask.

D. Force3’s Unlawful Use of Ampac’s Face Mask Harness Trade Dress

91. Upon information and belief, Force3 is importing, marketing, distributing,

offering for sale, and selling goods in interstate commerce that bear a confusingly similar

imitation of Ampac’s Face Mask Harness Trade Dress. There are many ways to design a face

mask harness as evidenced by Force3’s offering of a differently designed face mask harness that

“comes standard with all Defender traditional mask purchases.” See Exhibit 19 and

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http://www.force3progear.com/product/f3-mask-harness/. Yet, as depicted below in Table 3,

Force3 has chosen to adopt a design for its Pro Catcher’s Harness that is likely to cause

confusion and to deceive consumers and the public regarding its source.

Table 3: Comparison of Face Mask Harness Trade Dress with Force3 Pro Catcher’s Harness

Face Mask Harness Trade Dress Force3 Pro Catcher’s Harness

92. Force3’s marketing of the Force3 Pro Catcher’s Harness boasts that it is “[t]he

same harness you see on TV.” Exhibit 20.

93. Ampac used the Face Mask Harness Trade Dress extensively and continuous

before Force3 began using and selling confusingly similar imitations with its Pro Catcher’s

Harness.

94. The Force3 Pro Catcher’s Harness is similar to and competes with products sold

by Ampac, and these products are sold through overlapping channels of trade. See Exhibit 20.

95. The likelihood of confusion engendered by Force3’s misappropriation of

Ampac’s Face Mask Harness Trade Dress is causing irreparable harm to the goodwill

symbolized by the Face Mask Harness Trade Dress and the reputation for quality that it

embodies.

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96. Force3’s activities are likely to cause confusion before, during, and after the time

of purchase because purchasers, prospective purchasers, and others viewing the Force3 Pro

Catcher’s Harness at the point of sale or on a player are likely—due to Force3’s use of

confusingly similar imitations of the Face Mask Harness Trade Dress—to mistakenly attribute

the product to Ampac. This is particularly damaging with respect to those persons who perceive

a defect or lack of quality in Force3’s products. By causing such a likelihood of confusion,

mistake, or deception, Force3 is inflicting irreparable harm to the goodwill symbolized by the

Face Mask Harness Trade Dress, and the reputation for quality that it embodies.

97. Upon information and belief, Force3 knowingly, willingly, intentionally, and

maliciously adopted and used confusingly a similar imitation of the Face Mask Harness Trade

Dress in the Force3 Pro Catcher’s Harness.

E. Force3’s Unlawful Use of Ampac’s Chest Protector Harness Trade Dress

98. Upon information and belief, Force3 is importing, marketing, distributing,

offering for sale, and selling goods in interstate commerce that bear a confusingly similar

imitation of Ampac’s Chest Protector Harness Trade Dress. There are many ways to design a

chest protector harness. However, as depicted below in Table 4, Force3 has chosen to adopt a

design for its chest protector harness (“Force3 Chest Protector Harness”) that is likely to cause

confusion and to deceive consumers and the public regarding its source.

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Table 4: Comparison of Chest Protector Harness Trade Dress with Force3 Chest Protector Harness

Chest Protector Harness Trade Dress Force3 Chest Protector Harness

99. Ampac used the Chest Protector Harness Trade Dress extensively and continuous

before Force3 began using and selling confusingly similar imitations of its chest protector

harness.

100. The Force3 Chest Protector Harness is similar to and competes with products sold

by Ampac, and these products are sold through overlapping channels of trade. See Exhibit 21.

101. The likelihood of confusion engendered by Force3’s misappropriation of

Ampac’s Chest Protector Harness Trade Dress is causing irreparable harm to the goodwill

symbolized by the Chest Protector Trade Dress and the reputation for quality that it embodies.

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102. Force3’s activities are likely to cause confusion before, during, and after the time

of purchase because purchasers, prospective purchasers, and others viewing the Force3 Chest

Protector Harness at the point of sale or on a player are likely—due to Force3’s use of

confusingly similar imitations of the Chest Protector Harness Trade Dress—to mistakenly

attribute the product to Ampac. This is particularly damaging with respect to those persons who

perceive a defect or lack of quality in Force3’s products. By causing such a likelihood of

confusion, mistake, or deception, Force3 is inflicting irreparable harm to the goodwill

symbolized by the Chest Protector Harness Trade Dress, and the reputation for quality that it

embodies.

103. Upon information and belief, Force3 knowingly, willingly, intentionally, and

maliciously adopted and used confusingly a similar imitation of the Chest Protector Harness

Trade Dress in the Force3 Chest Protector Harness. Force3 even markets the Force3 Chest

Protector Harness as having “the advantage over All-Star’s Delta Flex harness in that it has

longer straps for umpires who need greater width to connect straps to their chest protectors.” See

Exhibit 21 at Page 2.

F. Force3’s Unlawful Use of Ampac’s Catchers Mitt Trade Dress

104. Upon information and belief, Force3 is importing, marketing, distributing,

offering for sale, and selling goods in interstate commerce that bear a confusingly similar

imitation of Ampac’s Catchers Mitt Trade Dress. There are many ways to design a catchers mitt.

However, as depicted below in Table 5, Force3 has chosen to adopt a design for its Stock

Catcher’s Mitt and certain custom configurations available through its Custom Catcher’s Mitt

Builder (collectively (“Force3 Catcher’s Mitt”)) that is likely to cause confusion and to deceive

consumers and the public regarding its source.

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Table 5: Comparison of Catchers Mitt Trade Dress with Force3 Catcher’s Mitt

Catchers Mitt Trade Dress Force3 Catcher’s Mitt

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Table 5: Comparison of Catchers Mitt Trade Dress with Force3 Catcher’s Mitt

Catchers Mitt Trade Dress Force3 Catcher’s Mitt

105. Ampac used the Catchers Mitt Trade Dress extensively and continuous before

Force3 began using and selling confusingly similar imitations of the Force3 Catcher’s Mitt.

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106. The Force3 Catcher’s Mitt is similar to and competes with products sold by

Ampac, and these products are sold through overlapping channels of trade. See Exhibits 22-23.

107. The likelihood of confusion engendered by Force3’s misappropriation of

Ampac’s Catchers Mitt Trade Dress is causing irreparable harm to the goodwill symbolized by

the Catchers Mitt Trade Dress and the reputation for quality that it embodies.

108. Force3’s activities are likely to cause confusion before, during, and after the time

of purchase because purchasers, prospective purchasers, and others viewing the Force3 Catcher’s

Mitt at the point of sale or on a player are likely—due to Force3’s use of confusingly similar

imitations of the Catchers Mitt Trade Dress—to mistakenly attribute the product to Ampac. This

is particularly damaging with respect to those persons who perceive a defect or lack of quality in

Force3’s products. By causing such a likelihood of confusion, mistake, or deception, Force3 is

inflicting irreparable harm to the goodwill symbolized by the Catchers Mitt Trade Dress, and the

reputation for quality that it embodies.

109. Upon information and belief, Force3 knowingly, willingly, intentionally, and

maliciously adopted and used confusingly a similar imitation of the Catchers Mitt Trade Dress in

the Force3 Catcher’s Mitt.

110. For the sake of convenience, the Force3 2018 Hockey-Style Mask, the Force3 Pro

Catcher’s Harness, the Force3 Chest Protector Harness, and Force3 Catcher’s Mitt are

collectively referred to as “Force3 Infringing Products.”

FIRST CLAIM

(False Advertising Under 15 U.S.C. § 1125(a))

111. Ampac repeats and re-alleges the allegations of the foregoing paragraphs 1

through 110 of this Complaint as if fully set forth herein.

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112. Force3 has made and distributed in interstate commerce and in this District

advertisements that contain false and misleading statements of fact regarding its products. These

advertisements contain actual misstatements and/or misleading statements or failures to disclose,

specifically the statements: (1) that Force3’s “Comparative Tests Show a Reduction UP TO 50%

Severity Index When Compared to Other Masks;” (2) that “the Defender’s patent pending

technology reduces the forces of most frontal impacts by up to 50% in most cases;” (3) that

“[i]ndependent test results concluded that nothing comes close to the protection as the

Defender;” and (4) that the Hockey-Style Mask “will protect you a LOT better than the mask you

use now” (“collectively Force3’s False Claims”).

113. Force3’s False Claims are used in commercial advertising and contain deceptive,

false, or misleading descriptions of fact, or deceptive, false, or misleading representations of fact,

which misrepresent the nature, characteristics, or qualities of Force3’s goods, services, or

commercial activities.

114. Force3’s False Claims placed in interstate commerce contain deceptive, false, or

misleading representations of fact, including actionable statements that may be literally true in

some limited aspect, but that have a tendency to mislead. These deceptive, false, or misleading

representations of fact are material because they are likely to influence the purchasing decision

of consumers.

115. Force3’s False Claims actually deceive, or have a tendency to deceive, a

substantial segment of Force3’s customers and potential customers. This deception is material in

that concerns an inherent property of Force3 Products and is likely to influence the purchasing

decisions of Force3’s customers.

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116. As a competitor of Force3, Ampac has standing to bring this action for false

advertising. Force3’s false and misleading advertising statements and omissions injure both

consumers and Ampac.

117. Force3’s false and misleading advertising statements and omissions violate

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B).

118. Force3 has caused, and will continue to cause, immediate and irreparable injury to

Ampac, including injury to Ampac’s business, reputation, and goodwill, for which there is no

adequate remedy at law. Ampac is therefore entitled to an injunction under 15 U.S.C. § 1116

restraining Force3, its agents, employees, representatives, and all persons acting in concert with

Force3 from engaging in future acts of false advertising and ordering removal of all of Force3’s

false advertisements.

119. Pursuant to 15 U.S.C. § 1117, Ampac is further entitled to recover from Force3

the damages sustained by Ampac as a result of Force3’s acts in violation of 15 U.S.C. § 1125(a).

Ampac is at present unable to ascertain the full extent of the monetary damages it has sustained

by reason of Force3’s acts.

120. Pursuant to 15 U.S.C. § 1117, Ampac is further entitled to recover from Force3

the gains, profits, and advantages that Force3 has obtained as a result of Force3’s acts in

violation of 15 U.S.C. § 1125(a). Ampac is at present unable to ascertain the full extent of the

gains, profits, and advantages Force3 has obtained by reason of Force3’s acts.

121. Pursuant to 15 U.S.C. § 1117, Ampac is further entitled to recover the costs of

this action. Moreover, Ampac is informed and believes, and on that basis alleges, that Force3’s

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conduct was undertaken willfully and with the intention of causing confusion, mistake or

deception, making this an exceptional case entitling Ampac to recover additional damages and

reasonable attorneys’ fees.

SECOND CLAIM

(Infringement Under 35 U.S.C. § 271 of the ʼ347 Patent)

122. Ampac repeats and re-alleges the allegations of the foregoing paragraphs 1

through 121 of this Complaint as if fully set forth herein.

123. Force3, without authorization from Ampac, has made or had made, used, offered

for sale, sold, and/or imported in or into the United States, and continues to make or have made,

use, offer for sale, sell, and/or import into the United States a hockey-style mask (referred to

herein as Force3 2018 Hockey-Style Mask) that embodies the design covered by the ʼ347 Patent

and thus infringes the ʼ347 Patent.

124. An ordinary observer, giving such attention as a purchaser usually gives, would

find the design of the Force3 2018 Hockey-Style Mask to be substantially the same as the design

claimed in the ʼ347 Patent.

125. Ampac has not granted a license or any other rights to Force3 to make, use, offer

for sale, sell, or import the design embodied in the ʼ347 Patent.

126. By the foregoing acts, Force3 has directly infringed, infringed under the doctrine

of equivalents, and/or induced infringement of, and continues to so infringe, the ʼ347 Patent in

violation of 35 U.S.C. § 271.

127. Upon information and belief, the foregoing acts of infringement by Force3 have

been willful, intentional, and in bad faith, and with knowledge of the ʼ347 Patent.

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128. Based on Force3’s infringement of the ʼ347 Patent, Ampac has been and will

continue to be irreparably harmed by Force3’s infringement of the ʼ347 Patent unless enjoined

by this Court under 35 U.S.C. § 283 and/or the equitable powers of this Court.

129. As a direct and proximate result of Force3’s infringement of the ʼ347 Patent,

Force3 has derived and received gains, profits, and advantages in an amount not presently known

to Ampac.

130. Pursuant to 35 U.S.C. § 289, Ampac is entitled to Force3’s total profits from

Force3’s infringement of the ʼ347 Patent.

THIRD CLAIM

(Trade Dress Infringement (15 U.S.C. § 1125(a))

131. Ampac repeats and re-alleges the allegations of the foregoing paragraphs 1

through 130 of this Complaint as if fully set forth herein.

132. The Ampac Hockey-Style Helmet Trade Dress is used in commerce and is not

functional. As a result of the widespread use and display of the Ampac Hockey-Style Helmet

Trade Dress, the trade dress has acquired distinctiveness and has established secondary meaning

to potential purchasers, in that potential purchasers have come to associate the Ampac Hockey-

Style Helmet Shell bearing the overall design of the Ampac Hockey-Style Helmet Trade Dress

with a single source.

133. Subsequent to Ampac’s use and adoption of the Ampac Hockey-Style Helmet

Trade Dress, Force3 developed, advertised, and offered for sale a hockey-style mask that uses

trade dress that is confusingly similar to the Ampac Hockey-Style Helmet Trade Dress. For

example, the Force3 2018 Hockey-Style Mask has the overall design of the Ampac Hockey-Style

Helmet Trade Dress.

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134. The Ampac Face Mask Harness Trade Dress is used in commerce and is not

functional. As a result of the widespread use and display of the Ampac Face Mask Harness

Trade Dress, the trade dress has acquired distinctiveness and has established secondary meaning

to potential purchasers, in that potential purchasers have come to associate the Delta Flex® Face

Mask Harness bearing the overall design of the Ampac Face Mask Harness Trade Dress with a

single source.

135. Subsequent to Ampac’s use and adoption of the Ampac Face Mask Harness Trade

Dress, Force3 developed, advertised, and offered for sale a face mask harness that uses trade

dress that is confusingly similar to the Ampac Face Mask Harness Trade Dress. For example,

the Force3 Pro Catcher’s Harness has the overall design of the Ampac Face Mask Harness Trade

Dress.

136. The Ampac Chest Protector Harness Trade Dress is used in commerce and is not

functional. As a result of the widespread use and display of the Ampac Chest Protector Harness

Trade Dress, the trade dress has acquired distinctiveness and has established secondary meaning

to potential purchasers, in that potential purchasers have come to associate the Delta Flex® Chest

Protector Harness bearing the overall design of the Ampac Chest Protector Harness Trade Dress

with a single source.

137. Subsequent to Ampac’s use and adoption of the Ampac Chest Protector Harness

Trade Dress, Force3 developed, advertised, and offered for sale a chest protector harness that

uses trade dress that is confusingly similar to the Ampac Chest Protector Harness Trade Dress.

For example, the Force3 Chest Protector Harness has the overall design of the Ampac Chest

Protector Harness Trade Dress.

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138. The Ampac Catchers Mitt Trade Dress is used in commerce and is not functional.

As a result of the widespread use and display of the Ampac Catchers Mitt Trade Dress, the trade

dress has acquired distinctiveness and has established secondary meaning to potential purchasers,

in that potential purchasers have come to associate the Ampac Pro-Elite® Catchers Mitt bearing

the overall design of the Ampac Catchers Mitt Trade Dress with a single source.

139. Subsequent to Ampac’s use and adoption of the Ampac Catchers Mitt Trade

Dress, Force3 developed, advertised, and offered for sale catcher’s mitts that use trade dress that

is confusingly similar to the Ampac Catchers Mitt Trade Dress. For example, the Force3

Catcher’s Mitt has the overall design of the Ampac Catchers Mitt Trade Dress.

140. Ampac has used each of the Ampac Hockey-Style Helmet Trade Dress, Ampac

Face Mask Harness Trade Dress, Ampac Chest Protector Harness Trade Dress, and Ampac

Catchers Mitt Trade Dress in commerce, and has established protectable rights in those elements

of Ampac Trade Dress.

141. The elements comprising the Ampac Hockey-Style Helmet Trade Dress, Ampac

Face Mask Harness Trade Dress, Ampac Chest Protector Harness Trade Dress, and Ampac

Catchers Mitt Trade Dress are primarily non-functional.

142. Force3’s use of the Ampac Trade Dress in connection with the Force3 Infringing

Products is likely to cause, or to cause mistake, or to deceive as to the affiliation, connection, or

association of Force3 with Ampac.

143. Force3 chose to use the trade dress of the Force3 Infringing Products with

knowledge of Ampac’s prior use of and rights in the well-known and distinctive Ampac Trade

Dress. Upon information and belief, Force3 has used the Force3 Infringing Products in

commerce with the intent to cause confusion, to cause mistake, or to deceive.

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144. Force3’s actions constitute willful trade dress infringement in violation of Section

43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

145. Due to Force3’s actions, constituting trade dress infringement, Ampac has

suffered and continues to suffer great and irreparable injury, for which Ampac has no adequate

remedy at law.

FOURTH CLAIM

(Unfair Competition (15 U.S.C. § 1125(a))

146. Ampac repeats and re-alleges the allegations of the foregoing paragraphs 1

through 145 of this Complaint as if fully set forth herein.

147. Force3’s use of the Ampac Trade Dress on the Force3 Infringing Products without

Ampac’s consent constitutes a false designation of origin and a false representation as to the

origin of Force3’s goods, is likely to cause confusion, mistake, or deception as to the source of

Force3’s Infringing Products, and is likely to create the false impression that Force3’s Infringing

Products are authorized, sponsored, endorsed, licensed by, or affiliated with Ampac in violation

of 15 U.S.C. § 1125(a).

148. Such conduct by Force3 is likely to confuse, mislead, and deceive Force3’s

customers, purchasers, and members of the public as to the origin of the Ampac Trade Dress, or

cause said persons to believe that Force3 or the Force3 Infringing Products have been sponsored,

approved, authorized, or licensed by Ampac or are in some way affiliated or connected with

Ampac, all in violation of 15 U.S.C. § 1125(a).

149. Upon information and belief, Force3’s actions were undertaken willfully with full

knowledge of the falsity of such designation of origin and false descriptions or representations,

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and with the express intent to cause confusion, to cause mistake, or to deceive the purchasing

public.

150. Force3’s use of the Ampac Trade Dress without Ampac’s consent each constitutes

unfair competition with Ampac, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §

1125(a).

151. Ampac is informed and believes, and thereon alleges, that Force3 has derived and

received, and will continue to derive and receive, gains, profits and advantages from Force3’s

false designation of origin, false or misleading description of fact or false or misleading

representation of fact, and unfair competition in an amount that is not presently known to

Ampac. By reason of Force3’s actions, constituting false designation of origin, false or

misleading description of fact or false or misleading representation of fact, and unfair

competition, Ampac has been damaged and is entitled to monetary relief in an amount to be

determined at trial.

152. Due to Force3’s actions, constituting false designation of origin, false or

misleading description of fact or false or misleading representation of fact, and unfair

competition, Ampac has suffered and continues to suffer great and irreparable injury, for which

Ampac has no adequate remedy at law.

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PRAYER FOR RELIEF

WHEREFORE, Ampac respectfully requests that the Court award Ampac the following

relief:

1. An Order declaring that Force3’s False Claims constitute false advertising under

federal law, as described above;

2. That Force 3, its agents, or anyone working for, in concert with or on behalf of

Force3 be temporarily, preliminarily, and permanently enjoined and restrained from engaging in

false or misleading advertising with respect to the Force3 Products and/or violating Section 43(a)

of the Lanham Act, which relief includes but is not limited to removal of all false or misleading

advertisements and corrective advertising to remedy the effects of Force3’s false advertising;

3. An order requiring Force3 to correct any erroneous impression persons may

have derived concerning the nature, characteristics or qualities of the Force3 Products, including

without limitation the placement of corrective advertising and providing written notice to the

public;

4. That Force3 be adjudged to have violated 15 U.S.C. § 1125(a) by unfairly

competing against Ampac by using false, deceptive or misleading statements of fact that

misrepresent the nature, quality and characteristics of the Force3 Products;

5. That Ampac be awarded damages it has sustained in consequence of Force3’s

conduct related to its False Claims;

6. That Ampac be awarded Force3’s profits obtained by Force3 as a consequence of

Force3’s conduct related to its False Claims;

7. That all of Force3’s misleading and deceptive materials be removed and

destroyed pursuant to 15 U.S.C. § 1118;

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8. That the ʼ347 Patent is deemed valid and willfully infringed by Force3 under 35

U.S.C. § 271;

9. That Force3 account for all gains, profits, and advantages derived by its

infringement of the’347 Patent in violation of 35 U.S.C. § 271;

10. An order requiring Force3 to pay Ampac all damages caused by Force3’s

infringement of the ʼ347 Patent (but in no event less than a reasonable royalty) pursuant to 35

U.S.C. § 284, or the total profit made by Force3 from its infringement of the ʼ347 Patent

pursuant to 35 U.S.C. § 289;

11. That Force 3, its agents, or anyone working for, in concert with or on behalf of

Force3 be temporarily, preliminarily, and permanently enjoined and restrained from directly or

indirectly infringing the ʼ347 Patent;

12. An order requiring Force3 to pay Ampac increased damages up to three times the

amount found or assessed pursuant to 35 U.S.C. § 284;

13. A determination that this action is an exceptional case warranting an award to

Ampac of the attorneys’ fees and costs incurred by Ampac in connection with this action

pursuant to 35 U.S.C. § 285;

14. That Force3, its agents, or anyone working for, in concert with or on behalf of

Force3 be temporarily, preliminarily, and permanently enjoined and restrained from engaging in,

and assisting or inducing, directly or indirectly, others to engage in the following activities:

1. using the Ampac Trade Dress or any other trade dress that is confusingly similar

thereto;

2. falsely designating the origin of Force3’s products;

3. unfairly competing with Ampac in any manner whatsoever;

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4. causing a likelihood of confusion or injuries to Ampac’s business reputation;

5. manufacturing, using, displaying, distributing, or selling any products that use

trade dress that is confusingly similar to the Ampac Trade Dress or any other

trade dress that is confusingly similar thereto; and

15. That an accounting be ordered to determine Force3’s profits resulting from their

infringement, false designation of origin, and unfair competition, and that Ampac be awarded

monetary relief in an amount to be fixed by the Court in its discretion as it finds just as an

equitable remedy and as a remedy under 15 U.S.C. § 1117, including:

1. all profits received by Force3 from sales and revenues of any kind made as a

result of its infringing actions, said amount to be trebled;

2. all damages sustained by Ampac as a result of Force3’s acts of infringement,

unfair competition, and false designation of origin, and that such damages be

trebled; and

3. punitive damages stemming from Force3’s willful, intentional, and malicious acts.

16. An order requiring Force3 to pay Ampac supplemental damages or profits for any

continuing post-verdict infringement up until entry to the final judgment, with an accounting, as

needed;

17. An order requiring Force3 to pay Ampac pre-judgment and post-judgment interest

on any damages or profits awarded;

18. Such further and additional relief as the Court deems just and proper.

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Case 3:18-cv-00314-JCH Document 17 Filed 05/11/18 Page 47 of 48

Respectfully submitted,

/s/ Timothy P. Jensen


Timothy P. Jensen (CT18888)
Michael T. McCormack (CT13799)
O’Sullivan McCormack, Jensen & Bliss PC
Putnam Park, Suite 100
100 Great Meadow Road
Wethersfield, CT 06109
Tel: (860) 258-1993
Fax: (860) 258-1991
tjensen@omjblaw.com
mmccormack@omjblaw.com

Stephanie Scruggs
Bradley Arant Boult Cummings LLP
1615 L Street N.W., Suite 1350
Washington, DC 20036
202.719.8224
sscruggs@bradley.com

Michael S. Denniston
Bradley Arant Boult Cummings LLP
One Federal Place
1819 5th Avenue N
Birmingham, AL 35203
205.521.8244
mdenniston@bradley.com

Counsel for Plaintiff Ampac Enterprises Inc.

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Case 3:18-cv-00314-JCH Document 17 Filed 05/11/18 Page 48 of 48

CERTIFICATE OF SERVICE

I hereby certify that on May 11, 2018, I electronically filed the foregoing by using the

CM/ECF system. Notice of this filing will be sent via e-mail to all parties by operation of the

Court’s electronic filing system. Parties may access this filing through the Court’s system.

/s/ Timothy P. Jensen


Timothy P. Jensen CT18888

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