Netlist, Inc. v. Google Inc.

Filing 8

NOTICE of Appearance by Shelley Kay Mack (Mack, Shelley) (Filed on 12/23/2009)

Netlist, Inc. v. Google Inc.

Doc. 8

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TOWNSEND AND TOWNSEND AND CREW LLP GREGORY S. GILCHRIST (Bar # 111536) GIA L. CINCONE (Bar # 141668) Two Embarcadero Center, 8th Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff LEVI STRAUSS & CO.\

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

LEVI STRAUSS & CO., Plaintiff, v. GOODS MANUFACTURED WITH CARE, INC., and DOES 1-10, Defendants.

Case No.

C-04-1938 JCS

COMPLAINT FOR FEDERAL TRADEMARK INFRINGEMENT; UNFAIR COMPETITION; DILUTION; CALIFORNIA DILUTION AND TRADEMARK INFRINGEMENT; UNFAIR COMPETITION; AND ACCOUNTING (INJUNCTIVE RELIEF SOUGHT) JURY TRIAL DEMAND

Plaintiff Levi Strauss & Co. ("LS&CO.") complains against defendants Goods Manufactured With Care, Inc. and Does 1-10 (collectively "Defendants") as follows: JURISDICTION, VENUE AND INTRA-DISTRICT ASSIGNMENT 1. Plaintiff's first, second and third claims arise under the Trademark Act of 1946 (the

Lanham Act), as amended by the Federal Trademark Dilution Act of 1995 (15 U.S.C. §§ 1051, et seq.). This Court has jurisdiction over such claims pursuant to 28 U.S.C. §§ 1338(a) and 1338(b) (trademark and unfair competition), 28 U.S.C. § 1331 (federal question) and 15 U.S.C. § 1121
COMPLAINT

- 1 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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(Lanham Act). This Court has supplemental jurisdiction over the remaining state law claims under 28 U.S.C. § 1367. 2. Venue is proper in this Court under 28 U.S.C. § 1391(b) because Defendants transact

affairs in this district and because a substantial part of the events giving rise to the claims asserted herein arose in this district. 3. Intra-district assignment to any division of the Northern District is proper under Local

Rule 3-2(c) and the Assignment Plan of this Court as an "Intellectual Property Action." PARTIES 4. LS&CO. is a Delaware corporation which has its principal place of business at Levi's

Plaza, 1155 Battery Street, San Francisco, California 94111. Since approximately 1850, LS&CO. has manufactured, marketed and sold a variety of clothing products, including its traditional denim blue jean products. 5. LS&CO. is informed and believes and on that basis alleges that defendant Goods

Manufactured With Care, Inc. ("GMWC") is a California corporation with its principal place of business at 110 East Ninth Street, Los Angeles, California 90079. LS&CO. is informed and believes that GMWC manufactures or has manufactured for it a line of men's and women's clothing, including jeans, under the brand name FOR JOSEPH which is sold in this judicial district and throughout the United States. LS&CO. is informed and believes that GMWC has authorized, directed, and/or actively participated in the wrongful conduct alleged herein. 6. LS&CO. is unaware of the true names and capacities of the defendants named as

"Does" herein. LS&CO. is informed and believes and on that basis alleges that each of the Doe defendants is legally liable and responsible directly or indirectly for the matters alleged herein. LS&CO. will seek leave to amend this Complaint to show the true names and capacities of the Doe defendants when they become known. 7. LS&CO. is informed and believes and on that basis alleges that at all times mentioned

in this Complaint each of the Defendants, including Does 1-10, was the agent or principal or both for one another, was acting within the scope of such agency when engaging in the conduct alleged in this Complaint, and is jointly and severally liable for all damages and profits arising from the conduct COMPLAINT - 2 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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described herein. FACTS AND ALLEGATIONS COMMON TO ALL CLAIMS 8. Since the 1850's and continuously thereafter, LS&CO. has developed, manufactured,

promoted and sold a variety of clothing products, including its traditional denim blue jeans. 9. Through substantial financial investment and effort, LS&CO. has built up considerable

good will and a reputation for qualify products. 10. For well over a century, LS&CO. has continuously used its federal and state registered

trademarks to distinguish its products. LS&CO.'s trademarks have a significant degree of inherent distinctiveness. 11. For many years prior to the events giving rise to this Complaint, and continuing to the

present, LS&CO. annually has spent great time, money, and effort in the promotion and advertisement of products on which its trademarks are used and displayed, and has sold tens of millions of products displaying its trademarks all over the world. 12. LS&CO.'s trademark registrations are valid, extant, in full force and effect, and

exclusively owned by LS&CO. LS&CO. has continuously used each of its trademarks, from the registration date or earlier, until the present and during all time periods relevant to the claims in this Complaint. 13. LS&CO. has continuously used its trademarks in interstate commerce throughout the

world and in the United States, including California, on or in connection with the manufacture, distribution, sale, advertisement, and promotion of its products, including LEVI'SŪ brand jeans. 14. By virtue of LS&CO.'s long use of its trademarks, as well as LS&CO.'s extensive

advertising and large volume of sales, consumers and retailers accept and recognize LS&CO.'s trademarks as identifying LS&CO.'s products only and distinguishing them from products manufactured and sold by all others. 15. Since the issuance of the registrations for its trademarks, LS&CO. has given notice that

the marks are registered. LS&CO.'s Tab Device Trademark 16.
COMPLAINT

LS&CO. is the owner of the famous Tab Device Trademark (hereinafter the "Tab - 3 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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Trademark"), which consists of a small marker of textile or other material sewn into one of the regular structural seams of the garment. LS&CO. first used the Tab Trademark in 1936 to identify genuine LEVI'SŪ products. 17. In or about 1936, LS&CO. first began to display the Tab Trademark on the rear pocket

of its pants when LS&CO.'s then National Sales Manager, Leo Christopher Lucier, first proposed placing a folded cloth ribbon in the structural seams of the rear pocket. Examples of the Tab Trademark as used on LEVI'SŪ jeans are attached as Exhibit A. The purpose of this "tab" was to provide "sight identification" of LS&CO.'s products. Given the distinctiveness of the Tab Trademark, Mr. Lucier noted that "no other maker of overalls can have any other purpose in putting a colored tab on an outside patch pocket, unless for the express and sole purpose of copying our mark, and confusing the customer." 18. Trademark: a. Registration No. 356,701 (first used as early as September 1, 1936; registered LS&CO. owns, among others, the following United States Registrations for its Tab

May 10, 1938), attached as Exhibit B; b. Registration No. 516,561 (first used as early as September 1, 1936; registered

October 18, 1949), attached as Exhibit C; c. Registration No. 577,490 (first used as early as September 1, 1936; registered

July 21, 1953), attached as Exhibit D; d. Registration No. 774,625 (first used as early as May 22, 1963; registered

August 4, 1964), attached as Exhibit E; e. Registration No. 775,412 (first used as early as October 9, 1957; registered

August 18, 1964), attached as Exhibit F; and f. Registration No. 1,157,769 (first used as early as September 1, 1936; registered

June 16, 1961), attached as Exhibit G. These registrations have become incontestable under the provisions of 15 U.S.C. § 1065. Defendants' Infringement of LS&CO.'s Trademark 19.
COMPLAINT

Beginning at some time in the past and continuing until the present, Defendants, with - 4 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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actual or constructive knowledge of LS&CO.'s federal registered trademark, have manufactured or arranged for the manufacture for sale in the United States, promoted and sold clothing, including denim jeans, that infringe LS&CO.'s Tab Trademark (hereinafter the "infringing products"). 20. On information and belief, Defendants manufacture, source, market and/or sell jeans

that display a tab on the rear pocket (hereinafter referred to as the "For Joseph tab"). A color image of the For Joseph tab as displayed on a pair of For Joseph jeans is attached as Exhibit H. The For Joseph tab, as used by Defendants, is similar to LS&CO.'s Tab Trademark. 21. On information and belief, Defendants have manufactured, marketed and sold

substantial quantities of the infringing products and obtained and continue to obtain substantial profits thereby. 22. On information and belief, each of the Defendants has at all times knowingly

participated with one another to manufacture, promote and/or sell these infringing products and are, accordingly, jointly and severally liable for all damages from their conduct. 23. Defendants' actions have caused and will cause LS&CO. irreparable harm for which

money damages and other remedies are inadequate. Unless Defendants are restrained by this Court, Defendants will continue and/or expand the illegal activities alleged in this Complaint and otherwise continue to cause great and irreparable damage and injury to LS&CO. through, inter alia: a. trademark; b. Creating a likelihood of confusion, mistake and deception among consumers Depriving LS&CO. of its statutory rights to use and control use of its

and the trade as to the source of the infringing products; c. versa; d. Causing incalculable and irreparable damage to LS&CO.'s goodwill and Causing the public falsely to associate LS&CO. with the Defendants or vice

dilution of the value of its trademark; and e. 24. Causing LS&CO. to lose sales of its genuine clothing products.

Accordingly, in addition to other relief sought, LS&CO. is entitled to preliminary and

permanent injunctive relief against Defendants and against all persons acting in concert with them. COMPLAINT - 5 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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COMPLAINT

FIRST CLAIM FEDERAL TRADEMARK INFRINGEMENT (15 U.S.C. §§ 1114-1117; Lanham Act § 32) 25. LS&CO. realleges and incorporates by reference each of the allegations contained in

paragraphs 1 through 24 of this Complaint. 26. Without LS&CO.'s consent, Defendants have used, in connection with the sale,

offering for sale, distribution or advertising of Defendants' goods, designs that infringe upon LS&CO.'s registered Tab Trademark. 27. These acts of trademark infringement have been committed with the intent to cause

confusion, mistake, or deception, and are in violation of 15 U.S.C. § 1114. 28. As a direct and proximate result of Defendants' infringing activities as alleged herein,

LS&CO. has suffered substantial damage. 29. Defendants' infringement of LS&CO.'s trademark as alleged herein is an exceptional

case and was intentional. Said exceptional and intentional infringements have damaged LS&CO. as described herein, entitling LS&CO. to treble its actual damages and to an award of attorneys' fees under 15 U.S.C. §§ 1117(a) and 1117(b). SECOND CLAIM FEDERAL UNFAIR COMPETITION (False Designation of Origin and False Description) (15 U.S.C. § 1125; Lanham Act § 43(a)) 30. LS&CO. realleges and incorporates by reference each of the allegations contained in

paragraphs 1 through 29 of this Complaint. 31. Defendants' conduct constitutes the use of words, terms, names, symbols or devices

tending falsely to describe the infringing products, within the meaning of 15 U.S.C. § 1125(a)(1). Defendants' conduct is likely to cause confusion, mistake, or deception by or in the public as to the affiliation, connection, association, origin, sponsorship or approval of the infringing products to the detriment of LS&CO. and in violation of 15 U.S.C. § 1125(a)(1).

- 6 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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THIRD CLAIM FEDERAL DILUTION OF FAMOUS MARK (Federal Trademark Dilution Act of 1995) (15 U.S.C. § 1125(c); Lanham Act § 43(a)) LS&CO. realleges and incorporates by reference each of the allegations contained in

paragraphs 1 through 31 of this Complaint. 33. LS&CO.'s Tab Trademark is distinctive and famous within the meaning of the Federal

Trademark Dilution Act of 1995, 15 U.S.C. § 1125(c). 34. Defendants' activities as alleged herein constitute dilution of the distinctive quality of

LS&CO.'s trademark in violation of the Federal Trademark Dilution Act of 1995, 15 U.S.C. § 1125(c). 35. 36. LS&CO. is entitled to injunctive relief pursuant to 15 U.S.C. § 1125(c). Because Defendants willfully intended to trade on LS&CO.'s reputation or to cause

dilution of LS&CO.'s famous trademark, LS&CO. is entitled to damages, extraordinary damages, fees and costs pursuant to 15 U.S.C. § 1125(c)(2). FOURTH CLAIM CALIFORNIA DILUTION AND TRADEMARK INFRINGEMENT (Cal. Bus. & Prof. Code §§ 14320, 14330, 14335, 14340) LS&CO. realleges and incorporates by reference each of the allegations contained in

paragraphs 1 through 36 of this Complaint. 38. Defendants' intentional and blatant infringement of LS&CO.'s federal and state

registered trademark constitutes infringement and dilution under California Business & Professions Code §§ 14320, 14330, and 14335. 39. Defendants infringed LS&CO.'s Tab Trademark with knowledge and intent to cause

confusion, mistake or deception. 40. Defendants' conduct is aggravated by that kind of willfulness, wantonness and malice

for which California law allows the imposition of exemplary damages. That is, Defendants' activities were intentional, willful, wanton, fraudulent, and without justification or excuse, and were undertaken with gross indifference to the rights of LS&CO. 41. Alternatively, Defendants were reckless or grossly negligent in that Defendants' actions - 7 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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involved such an entire want of care as could have resulted only from actual conscious indifference to
COMPLAINT

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the rights and welfare of LS&CO. 42. As a direct and proximate result of Defendants' conduct, pursuant to California

Business & Professions Code § 14340, LS&CO. is entitled to injunctive relief and damages in the amount of three times Defendants' profits and three times all damages suffered by LS&CO. by reason of Defendants' manufacture, use, display or sale of infringing goods. FIFTH CLAIM CALIFORNIA UNFAIR COMPETITION (Cal. Bus. & Prof. Code § 17200) 43. LS&CO. realleges and incorporates by reference each of the allegations contained in

paragraphs 1 through 42 of this Complaint. 44. Defendants' infringement of LS&CO.'s Tab Trademark constitutes "unlawful, unfair or

fraudulent business act[s] or practice[s] and unfair, deceptive, untrue or misleading advertising" within the meaning of California Business & Professions Code § 17200. 45. As a consequence of Defendants' actions, LS&CO. is entitled to injunctive relief and an

order that Defendants disgorge all profits on the manufacture, use, display or sale of infringing goods. SIXTH CLAIM ACCOUNTING (Common Law) 46. LS&CO. realleges and incorporates by reference each of the allegations contained in

paragraphs 1 through 45 of this Complaint. 47. Defendants' activities, as alleged above, have violated LS&CO.'s rights in its Tab

Trademark under the common law. 48. As a direct result of their infringing activities, Defendants have been unjustly enriched

through fraudulent conversion of LS&CO.'s goodwill and its rights in its trademark into their own profits through the sale of the infringing products and have caused LS&CO. to lose sales of its genuine products. 49. As a direct result of Defendants' misconduct, Defendants have received substantial

profits, to which LS&CO. is entitled under common law. 50. an accounting.
COMPLAINT

The amount of such profits is unknown to LS&CO. and cannot be ascertained without - 8 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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PRAYER FOR JUDGMENT WHEREFORE, LS&CO. prays that this Court grant it the following relief: 51. Adjudge that LS&CO.'s Tab Trademark has been infringed by Defendants in violation

of LS&CO.'s rights under common law, 15 U.S.C. § 1114, and/or California law; 52. Adjudge that Defendants have competed unfairly with LS&CO. in violation of

LS&CO.'s rights under common law, 15 U.S.C. § 1125(a), and/or California law; 53. Adjudge that Defendants' activities are likely to, or have, diluted LS&CO.'s famous

Tab Trademark in violation of LS&CO.'s rights under common law, 15 U.S.C. § 1125(c), and/or California law; 54. Adjudge that each of the Defendants, and each of their agents, employees, attorneys,

successors, assigns, affiliates, and joint venturers and any person(s) in active concert or participation with any of them and/or any person(s) acting for, with, by, through or under any of them, be enjoined and restrained at first during the pendency of this action and thereafter permanently from: a. Manufacturing, producing, sourcing, importing, selling, offering for sale,

distributing, advertising, or promoting any goods that display any words or symbols that so resemble LS&CO.'s trademark as to be likely to cause confusion, mistake or deception, on or in connection with any product that is not authorized by or for LS&CO., including without limitation any product that bears the For Joseph tab or any other confusingly similar approximation of LS&CO.'s Tab Trademark; b. Using any word, term, name, symbol, device or combination thereof that causes

or is likely to cause confusion, mistake or deception as to the affiliation or association of Defendants or their goods with LS&CO. or as to the origin of Defendants' goods, or any false designation of origin, false or misleading description or representation of fact; c. Further infringing the rights of LS&CO. in and to any of its trademarks in its

LEVI'SŪ brand products or otherwise damaging LS&CO.'s goodwill or business reputation; d. e. Otherwise competing unfairly with LS&CO. in any manner; and Continuing to perform in any manner whatsoever any of the other acts

complaint of in this Complaint; 55.
COMPLAINT

Adjudge that Defendants be required immediately to supply LS&CO.'s counsel with a - 9 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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complete list of individuals and entities from whom or which they purchased, and to whom or which they sold, offered for sale, distributed, advertised or promoted, infringing products as alleged in this Complaint; 56. Adjudge that Defendants be required immediately to deliver to LS&CO.'s counsel

Defendants' entire inventory of infringing products, including without limitation pants and any other clothing or infringing and unauthorized products, packaging, labeling, advertising and promotional material and all plates, molds, matrices and other material for producing or printing such items, which is in Defendants' possession or subject to their control and which infringe LS&CO.'s trademark as alleged in this Complaint; 57. Adjudge that Defendants, within thirty (30) days after service of the Judgment

demanded herein, be required to file with this Court and serve upon LS&CO.'s counsel a written report under oath setting forth in detail the manner in which they have complied with the Judgment; 58. Adjudge that LS&CO. recover from Defendants its actual damages and lost profits in

an amount to be proven at trial, that Defendants be required to account for any profits that are attributable to their illegal acts, and that LS&CO. be awarded the greater of (1) three times Defendants' profits, or (2) three times any damages sustained by LS&CO., under 15 U.S.C. § 1117, plus prejudgment interest; 59. Impose a constructive trust on all Defendants' funds and assets that arise out of

Defendants' infringing activities; 60. Adjudge that Defendants be required to pay LS&CO. punitive damages for their

oppression, fraud, malice and gross negligence, whether grounded on proof of actual damages incurred by LS&CO. or on proof of Defendants' unjust enrichment; 61. Adjudge that LS&CO. be awarded its costs and disbursements incurred in connection

with this action, including LS&CO.'s reasonable attorneys' fees and investigative expenses; and

COMPLAINT

- 10 - Levi Strauss & Co. vs. Goods Manufactured With Care, Inc.
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62.

Adjudge that all such other relief be awarded to LS&CO. as this Court deems just and

DATED: May 17, 2004

Respectfully submitted,

By:

Gia L. Cincone TOWNSEND AND TOWNSEND AND CREW LLP Two Embarcadero Center, Eighth Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff LEVI STRAUSS & CO.

DEMAND FOR JURY TRIAL Plaintiff hereby demands that this action be tried to a jury.

DATED: May 17, 2004

Respectfully submitted,

By:

Gia L. Cincone TOWNSEND AND TOWNSEND AND CREW LLP Two Embarcadero Center, Eighth Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff LEVI STRAUSS & CO.

COMPLAINT

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COMPLAINT
60200632 v1

CERTIFICATION OF INTERESTED ENTITIES OR PERSONS Pursuant to General Order No. 48, the undersigned certifies that as of this date, there is no such interest to report.

DATED: May 17, 2004

Respectfully submitted,

By:

Gia L. Cincone TOWNSEND AND TOWNSEND AND CREW LLP Two Embarcadero Center, Eighth Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff LEVI STRAUSS & CO.

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Exhibit A

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Exhibit B

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Exhibit C

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Exhibit D

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Exhibit E

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Exhibit F

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Exhibit G

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Exhibit H