ALO v. Tonic Active - Complaint
ALO v. Tonic Active - Complaint
ALO v. Tonic Active - Complaint
14 COMPLAINT FOR:
Plaintiff,
15 1. PATENT INFRINGEMENT
v.
16
TONIC ACTIVE, INC., a 2. UNFAIR COMPETITION
17 Canadian corporation; EVOLVE
FIT WEAR, LLC, an Oregon
18 limited liability company; and DEMAND FOR JURY TRIAL
DOES 1 through 10, inclusive,
19
Defendants.
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21 Plaintiff ALO, LLC (“ALO”) alleges against defendants Tonic Active, Inc.
22 (“Tonic Active”), Evolve Fit Wear, LLC (“Evolve Fit Wear”), and Does 1 through 10
23 (collectively, “Defendants”), as follows:
24 NATURE OF THE CASE
25 1. This is an action at law and in equity for patent infringement and unfair
26 competition, arising under 35 U.S.C. section 271 et seq. and common law unfair
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1 competition.
2 2. ALO owns the trademarks ALO® and ALO Yoga® (collectively, “ALO
3 Yoga”), and makes a well-known and exceedingly popular line of athletic wear
4 designed for both athletic and non-athletic settings. This line includes, among other
5 distinctive designs, ALO’s Goddess Legging (“Goddess Legging”), which is at issue
6 in this case.
7 3. Tonic Active, without authorization, is copying ALO’s distinctive
8 Goddess Legging design and, as a result, is offering for sale and selling products
9 through online retailers such as Evolve Fit Wear that are confusingly similar to the
10 Goddess Legging. Defendants’ products are not manufactured by ALO and are not
11 connected to or endorsed by ALO in any way. As a result, Defendants are infringing
12 ALO’s patent on the Goddess Legging. In addition, Defendants’ merchandise is
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
13 likely to cause confusion in the marketplace and to deceive consumers and the public
(650) 327-4200
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13 10. This action arises under 35 U.S.C. section 271 et seq. and common law
(650) 327-4200
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14 unfair competition. This Court has subject matter jurisdiction over this action
15 pursuant to 28 U.S.C. sections 1331 and 1338, as ALO’s claims arise under the Patent
16 Act. This Court has supplemental jurisdiction pursuant to 28 U.S.C. sections 1338(b)
17 and 1367 over ALO’s claims arising under the laws of the State of California.
18 11. This Court has personal jurisdiction over Defendants as, on information
19 and belief, Tonic Active is doing business in this judicial district through its
20 contracted retailers such as Evolve Fit Wear (www.evolvefitwear.com) through
21 which it advertises and sells goods that infringe ALO’s design patent to consumers
22 residing in this judicial district, thereby invoking the benefits and protections of the
23 laws of this judicial district.
24 12. Defendants have distributed or sold infringing merchandise within this
25 judicial district, have manufactured or distributed products used or consumed within
26 this judicial district in the ordinary course of trade, or have otherwise made or
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1 established contacts within this judicial district sufficient to permit the exercise of
2 personal jurisdiction. Venue is proper in this judicial district under 28 U.S.C. section
3 1391(b)(2) as, on information and belief, a substantial part of the events, omissions
4 and acts causing injury that are the subject matter of this action arise out of or relate
5 to Defendants’ activities within this judicial district.
6 FACTUAL ALLEGATIONS
7 13. ALO’s innovative concept of creating an exercise pant with integrated
8 legwarmer revolutionized the athletic wear market when it was first marketed and
9 quickly became one of the hallmarks of ALO’s brand, known for its distinctive
10 appearance and ornamental legwarmer design. ALO first marketed this brand in
11 conjunction with its patent predecessor in interest, Color Image Apparel, Inc.
12 (“CIA”).
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
13 14. On September 6, 2016, the United States Patent and Trademark Office
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14 duly and legally issued United States Design Patent No. US D765,346 S (the “’346
15 Patent”), which covers products sold under ALO’s “Goddess Legging” collection. A
16 true and correct copy of the ’346 Patent is attached hereto as Exhibit A. CIA was the
17 original owner of the entire right, title, and interest in and to the ’346 Patent. CIA
18 assigned the ’346 Patent to ALO on October 18, 2018. CIA and ALO owned the
19 ’346 Patent throughout the period of Defendant’s infringing acts. ALO still owns
20 the ’346 Patent.
21 15. Certain Tonic Active leggings marketed by Evolve Fit Wear under the
22 “Celestina” name infringe the ’346 Patent (collectively, the “Accused Products”).
23 True and correct copies of photographs of the infringing Accused Products as
24 displayed on Evolve Fit Wear’s website (https://evolvefitwear.com/) are attached
25 hereto as Exhibit B.
26 16. The overall appearance and design of the invention embodied in the
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1 ’346 Patent and the corresponding design of the infringing Accused Products are
2 substantially the same.
3 17. On information and belief, an ordinary observer will perceive the overall
4 appearance of the design of the invention embodied in the ’346 Patent and the
5 corresponding designs of Defendants’ infringing Accused Products to be
6 substantially the same.
7 18. Table 1, below, shows side-by-side comparisons of the ’346 Patent
8 design (left), with the infringing Celestina leggings (right). A copy of Table 1 is also
9 attached as Exhibit C.
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Table 1: Comparison of ’346 Patent
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and Defendant’s Infringing Fusions Leggings
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
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’346 Patent Figures Defendant’s Infringing Leggings
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Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
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(650) 327-4200
THOITS LAW
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24 19. Evolve Fit Wear offers for sale and sells the Accused Products to
25 customers in the United States through its website and social media ads, and acts as a
26 contracted retailer to Tonic Active, who designs and manufactures the Accused
Products. Furthermore, Defendants indirectly infringe the ’346 Patent because its
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13 23. ALO has been manufacturing, advertising, and selling the Goddess
(650) 327-4200
THOITS LAW
14 Legging for both athletic and non-athletic use. The Goddess Legging
15 revolutionized the area of sports leggings due to the total image and overall
16 appearance of its design, as it married the athletic nature of leggings with the
17 aesthetic of more ballet-inspired pants with distinctive, non-functional attributes
18 such as a flat front panel at the top of the leggings and a loose panel at the bottom
19 of the leg which gives the appearance of an integrated leg warmer.
20 24. On information and belief, Defendants are, and will continue to
21 manufacture, distribute, advertise, sell and offer for sale its unauthorized products in
22 this judicial district and throughout the United States unless enjoined by this Court.
23 25. The products manufactured, distributed, offered for sale and sold by
24 Defendants are not manufactured by ALO, nor are Defendants associated or
25 connected with ALO, or licensed, authorized, endorsed or approved by ALO in any
26 way.
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1 26. Upon information and belief, Evolve Fit Wear became aware of the
2 infringement allegations and the ‘346 Patent at least as early as September 19, 2019,
3 after a cease and desist letter was sent to Evolve Fit Wear by ALO’s counsel. A true
4 and correct copy of this letter is attached as Exhibit D.
5 27. In response to the letter discussed in Paragraph 26, Evolve Fit Wear
6 sent an email response stating that they were “just the reseller” and that Tonic
7 Active was the manufacturer of the infringing product. Upon information and
8 belief, after further questioning from ALO’s counsel, Evolve Fit Wear noted that
9 they had only sold three pairs of the infringing leggings, as they “aren’t a very big
10 brand for us.” A true and correct copy of this email chain is attached as Exhibit E.
11 28. Upon information and belief, Evolve Fit Wear’s Tonic Active
12 dedicated product page, in contrast to what was claimed by Evolve Fit Wear via
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
13 email to ALO’s counsel, states: “Tonic Clothing | #1 Store Online at Evolve Fit
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14 Wear” in the tab header. As of the date of filing of this complaint, Evolve Fit Wear
15 had three different colors of the Celestina legging available for sale on its website.
16 A true and correct copy of this website landing page is attached as Exhibit F.
17 29. Upon information and belief, Tonic Active became aware of the
18 infringement allegations and the ’346 Patent at least as early as September 26, 2019
19 after a cease and desist letter was sent to Tonic Active by ALO’s counsel. A true and
20 correct copy of this letter is attached as Exhibit G.
21 30. As of the date of this Complaint, ALO has received no response to its
22 letter from Tonic Active.
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13 34. ALO repeats and incorporates by this reference each and every allegation
(650) 327-4200
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1 38. As a result of Defendants’ acts, ALO has suffered, is suffering, and will
2 continue to suffer irreparable injury for which ALO has no adequate remedy at law.
3 ALO is therefore entitled to a permanent injunction against further infringing conduct
4 by Defendants.
5 PRAYER
6 WHEREFORE, Plaintiff prays for an order and judgment against Defendants
7 and requests relief as follows:
8 1. A determination that this action is an exceptional case pursuant to the
9 Patent Act;
10 2. A determination that Defendants have infringed the ‘346 Patent;
11 3. That Defendants and its officers, directors, partners, agents, servants,
12 employees, attorneys, confederates, and all persons acting for, with, by, through or
Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
13 under it, and any others within their control or supervision, and all others in active
(650) 327-4200
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14 concert or participation with the above, be enjoined during the pendency of this action
15 and permanently thereafter from infringing the ‘346 Patent in the manufacturing,
16 marketing, sales, distribution, promotion, advertising, identification, or in any other
17 manner in connection with apparel in the United States;
18 4. That Defendants, and each of its officers, directors, partners, agents,
19 servants, employees, attorneys, confederates, and all persons acting for, with, by,
20 through or under them, and any others within their control or supervision, and all others
21 in active concert or participation with the above, be enjoined during the pendency of
22 this action and permanently thereafter from representing to anyone, either orally or in
23 writing, that their business or goods are affiliated with ALO in any way or are approved
24 by ALO;
25 5. For an order requiring Defendants to cease offering for sale its infringing
26 products, and to destroy all patterns, stencils, molds, plates, masters, or means of
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13 view of the intentional and willful nature of Defendants’ acts, pursuant to 35 U.S.C.
(650) 327-4200
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1 JURY DEMAND
2 Plaintiff ALO, LLC hereby demands trial by jury in the above entitled action
3 pursuant to Fed. R. Civ. P. 38(b).
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Los Altos, California 94022
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
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(650) 327-4200
THOITS LAW
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Exhibit A
True and Correct Copies of Photographs of the Infringing Accused Product as Displayed
on Evolve Fit Wear’s Website
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Case 2:20-cv-04858 Document 1-3 Filed 06/01/20 Page 1 of 2 Page ID #:34
Exhibit C
Side-by-Side Comparisons of the ’346 Patent design (left), with the infringing
Celestina Leggings (right)
True and Correct Copy of Cease and Desist Letter Sent to Evolve Fit Wear
Case 2:20-cv-04858 Document 1-4 Filed 06/01/20 Page 2 of 3 Page ID #:37
Case 2:20-cv-04858 Document 1-4 Filed 06/01/20 Page 3 of 3 Page ID #:38
Case 2:20-cv-04858 Document 1-5 Filed 06/01/20 Page 1 of 5 Page ID #:39
Exhibit E
True and Correct Copy of Cease and Desist Letter Sent to Tonic Active
Case 2:20-cv-04858 Document 1-7 Filed 06/01/20 Page 2 of 3 Page ID #:49
Case 2:20-cv-04858 Document 1-7 Filed 06/01/20 Page 3 of 3 Page ID #:50