Official Complaint for Declaratory Judgement in Civil Action No. 4:14-cv-00450: Springfree L.P. et. al. v. JumpSport, Inc. Filed in U.S. District Court for the Eastern District of Texas, no judge yet assigned. See http://news.priorsmart.com/-laFK for more info.
Official Complaint for Declaratory Judgement in Civil Action No. 4:14-cv-00450: Springfree L.P. et. al. v. JumpSport, Inc. Filed in U.S. District Court for the Eastern District of Texas, no judge yet assigned. See http://news.priorsmart.com/-laFK for more info.
Official Complaint for Declaratory Judgement in Civil Action No. 4:14-cv-00450: Springfree L.P. et. al. v. JumpSport, Inc. Filed in U.S. District Court for the Eastern District of Texas, no judge yet assigned. See http://news.priorsmart.com/-laFK for more info.
FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION
SPRINGFREE L.P. and SPRINGFREE TRAMPOLINE USA INC.,
Plaintiffs,
JUMPSPORT, INC.,
Defendant.
CASE NO. ____
JURY TRIAL DEMANDED
COMPLAINT AND JURY DEMAND
Plaintiffs Springfree L.P. and Springfree Trampoline USA Inc. (collectively Springfree) allege as follows: PARTIES 1. Springfree L.P. is a Canadian limited partnership with a principal place of business at 3933 N Central Expressway #400, Plano, TX 75023. Springfree Trampoline USA, Inc. is a corporation formed under the laws of Canada with a principal place of business at 151 Whitehall Dr., Unit 2, Markham, Ontario, Canada L3R9T1. 2. JumpSport, Inc. (JumpSport) is a corporation formed under the laws of California with a principal place of business at 2055 South 7th Street, Suite A, San Jose, CA 95112. NATURE OF THIS ACTION 3. Springfree seeks a declaratory judgment that U.S. Patent No. 8,430,795 (the 795 patent) is invalid and is not infringed by Springfrees trampoline enclosures. The relief is necessary because JumpSport has alleged that Springfrees trampoline enclosures infringe the 795 patent and has created a justiciable controversy between Springfree and JumpSport. 4. This is also an action by Springfree for false advertising, false association, and
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unjust enrichment in violation of the Lanham Act, 15 U.S.C. 1125(a), Texas Business and Commerce Code 16.29, and the common law of Texas. JURISDICTION AND VENUE 5. Jurisdiction over the parties and subject matter of this action is proper in this Court under 35 U.S.C. 271 et seq. and 28 U.S.C. 1331 (actions arising under the laws of the United States), 28 U.S.C. 1338(a) (actions relating to patents and trademarks), 28 U.S.C. 1338(b) (claims of unfair competition when joined with a substantial and related claim under patent or trademark laws), and 28 U.S.C. 2201-02 (declaratory judgment actions). This Court also has supplemental jurisdiction over the counterclaims herein that arise under state statutory and common law pursuant to 28 U.S.C. 1367(a). 6. Venue is proper in this district pursuant to 28 U.S.C. 1391 and 1400 because JumpSport sells its products in this judicial district and JumpSports false advertising has taken place in this judicial district. 7. This Court has personal jurisdiction over JumpSport under the laws of the State of Texas, including the Texas long-arm statute, TEX. CIV. PRAC. & REM. CODE 17.042, due at least to its substantial business in this State and judicial district, including: (a) its false advertising activities alleged herein; and (b) regularly doing or soliciting business, engaging in other persistent conduct, and/or deriving substantial revenue from goods sold and services provided to Texas residents. FACTS 8. Springfree was founded more than a decade ago, and since then it has become a leader and innovator in designing and creating safe trampolines. The Springfree Trampoline was invented and designed by New Zealand engineer and professor at the University of Canterbury,
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Dr. Keith Alexander. The design was commercialized in 2003 and is now sold in over 20 countries, including the United States. 9. Springfree L.P. is headquartered in Plano, Texas, and operates three retail locations in the United States: in Issaquah, Washington; Plano, Texas; and Frisco, Texas. Springfree trampolines are also available online at www.springfreetrampoline.com. 10. As a result of its marketing efforts, innovation, and the reliability and safety features of its products, Springfree and its trampolines have acquired goodwill and a favorable reputation among consumers. The 795 Patent 11. The 795 patent issued to JumpSport, Inc. on April 30, 2013. The 795 patent identifies the inventors as Mark W. Publicover and Donald Strasser. A copy of the 795 patent is attached as Exhibit A. On information and belief, Mark Publicover is the Chief Executive Officer of JumpSport, Inc. 12. The 795 patent is within the same patent family as U.S. Patent Nos. 6,261,207 (the 207 patent) and 6,053,845 (the 845 patent). Each of the 795, 207, and 845 patents is entitled Trampoline or the like with enclosure. JumpSport filed a lawsuit against Springfree in the Eastern District of Texas, Tyler Division, Cause No. 6:13-cv-929-JDL, in which certain Springfree trampoline systems are accused of infringing the 207 and 845 patents. That case is currently pending. 13. JumpSport recently communicated to Springfree that JumpSport believes Springfree also infringes the 795 patent and that JumpSport intends to assert the 795 patent against Springfrees trampoline systems. 14. There is an actual controversy between Springfree and JumpSport regarding
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whether Springfrees trampolines infringes the 795 patent and whether the 795 patent is valid. JumpSports Unlawful Conduct 15. JumpSport competes with Springfree in the trampoline business. JumpSport is well acquainted with Springfree and has been aware of Springfrees trampoline business for over a decade. 16. JumpSport sells its trampolines online at www.jumpsport.com. On its website, JumpSport touts its trampolines as rated #1 in Safety, see Exhibit B. On www.jumpsport.com/Compare, JumpSport compares its trampolines to those of Unsafe Trampolines, Being Sold by Discount Retailers, its competitors, and contains a hyperlink to TrampolineSafety.com, see Exhibit C. On www.jumpsport.com/Compare-Springfree- Trampoline is a side-by-side comparison of JumpSports AlleyOop trampolines and Springfree trampolines, complete with video clips depicting a Springfree trampoline net collapsing as a jumper hurtles into the net, see Exhibit D. The ten-factor comparison between JumpSports AlleyOop trampolines and Springfree trampolines concludes with Springfree trampolines being labeled clearly inferior. On that webpage, JumpSport attributes the comparison to a purportedly unbiased tester for trampoline safety by asserting that TrampolineSafety.com gives AlleyOop Top Trampoline Ratings over the competition and including a hyperlink to TrampolineSafety.com. Another webpage, www.jumpsport.com/Safety-Alert, concludes that Testing Proves that the Other Enclosures are Not Safe! and features videos of distorted impacts in Springfree trampolines as well as trampolines from other manufacturers, see Exhibit E. The videos are noted as provided courtesy of TrampolineSafety.com and again provides a hyperlink. JumpSports customer reviews webpage, www.jumpsport.com/Reviews, further directs customers to visit TrampolineSafety.com [f]or full reviews of our products and our
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competition, See Exhibit F. TrampolineSafety.coms logo and hyperlink is placed next to a logo of the Better Business Bureau and below references to reviews from Google Checkout and Amazon such that a visitor to the webpage would associate the reputation of TrampolineSafety.com with the reputation of the Better Business Bureau, Google, and Amazon. 17. Nowhere on the domain www.jumpsport.com does JumpSport disclose its affiliation with, or sponsorship of, TrampolineSafety.com. Yet, upon information and belief, JumpSport owns and operates, or directs and controls, the actions and content of TrampolineSafety.com. 18. TrampolineSafety.com holds itself out to consumers as an independent party concerned with providing the public service of educating consumers on trampoline safety. Instead, it disparages and misrepresents the safety of Springfree trampolines, as well as other competitor trampolines, while consistently inflating the comparative quality of JumpSport trampolines as rated top of the industry. Only after clicking on a small About Us link at the bottom of its homepage does TrampolineSafety.com disclose that it is [u]nder sponsorship from Jumpsport. On information and belief, TrampolineSafety.com did not include the disclosure of JumpSports sponsorship until 2011. 19. TrampolineSafety.com also operates a YouTube channel containing disparaging videos showing alleged testing of Springfree trampolines. The About link reveals that TrampolineSafety.Com has received support from JumpSport, Inc., including the free use of its test facilities. In addition, some of the content on TrampolineSafety.Com has been authored by employees of JumpSport. On information and belief, TrampolineSafety.coms YouTube channel did not include the disclosure of JumpSports support and authorship until 2011. 20. As shown in some of TrampolineSafety.coms disparaging videos about
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competitor trampolines, Justin Brock was one of the individuals testing the Springfree trampolines between 2007 and 2010. On information and belief, Mr. Brock was an employee of JumpSport during this time period. 21. JumpSports disparaging comparisons, video footage of testing, and references to evaluations conducted by TrampolineSafety.com constitute commercial advertising or promotion and misrepresent the characteristics and qualities of Springfrees trampolines, and falsely denigrate the safety of Springfree trampolines. In addition, JumpSport knew or should have known that concealing and/or obfuscating its affiliation with TrampolineSafety.com is likely to cause confusion, mistake, or deceive consumers as to the neutrality of TrampolineSafety.coms evaluation and comparison of trampolines in the marketplace. 22. JumpSports unlawful activities have resulted in and, unless restrained by this Court, will continue to result in unjust enrichment to JumpSport and serious irreparable harm and injury to Springfree. COUNT I Declaratory Judgment of Non-Infringement 23. Springfree realleges and incorporates paragraphs 1 to 22 as if fully set forth herein. 24. Springfree designs, develops, manufactures, and sells trampoline systems. JumpSport has alleged that Springfree infringes the 795 patent and that JumpSport intends to assert the 795 patent against Springfrees trampoline systems. Therefore, an actual controversy has arisen and now exists between the parties as to whether Springfree has infringed either directly or indirectly (through contributory infringement or inducement of infringement) the 795 patent.
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25. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. 2201 et seq., Springfree requests a declaration by the Court that it does not infringe any claim of the 795 patent, either directly, contributorily, or by inducement. COUNT II Declaratory Judgment of Patent Invalidity 26. Springfree realleges and incorporates paragraphs 1 to 25 as if fully set forth herein. 27. Based on the allegations above, an actual controversy has arisen and now exists as to the validity of the 795 patent. 28. The 795 patent is invalid for failure to comply with the requirements of 35 U.S.C. 101 et seq., including but not limited to 102, 103, and 112. 29. The 795 patent is invalid because, among other things, there is prior art that anticipates the claims and/or renders the claims obvious. 30. Pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. 2201 et seq., Springfree requests a declaration by the Court that the claims of the 795 patent are invalid. COUNT III False Advertising Under 43(a) of the Lanham Act, 15 U.S.C. 1125 31. Springfree realleges and incorporates paragraphs 1 to 30 as if fully set forth herein. 32. JumpSports statements on its website and on TrampolineSafety.com, as identified above, are false and/or misleading representations of fact about Springfree and its products. 33. JumpSports statements on its website and on TrampolineSafety.com appeared
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and continue to appear in interstate commerce including on the internet. 34. The foregoing acts of JumpSport deceived, or had the capacity to deceive, a substantial segment of potential consumers. 35. The foregoing acts of JumpSport are likely to influence consumer purchasing decisions. 36. Springfree, along with Springfrees entire line of trampoline products, are in interstate commerce through offices in two states, an internet presence, and sales throughout the United States. 37. Springfree has been and is likely to be injured (both economic and reputational) as a result of JumpSports false and/or misleading representations. 38. JumpSports actions constitute false advertising in violation of 43(a) of the Lanham Act. 39. JumpSports unlawful acts have caused great and irreparable injury to Springfree, and will continue to irreparably harm Springfree unless enjoined. 40. JumpSports acts have been willful and deliberate justifying an award of attorney fees. 41. Upon information and belief, JumpSport has profited from its unlawful actions and has been unjustly enriched to the detriment of Springfree. JumpSports unlawful actions have caused Springfree monetary damage in an amount presently unknown, but in an amount to be determined at trial. COUNT IV False Association Under 43(a) of the Lanham Act, 15 U.S.C. 1125 42. Springfree realleges and incorporates paragraphs 1 to 41 as if fully set forth
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herein. 43. JumpSports statements on its website, hyperlinking to TrampolineSafety.com, and statements made on TrampolineSafety.com, as identified above, are likely to cause confusion, to cause mistake, or to deceive as to the affiliation, connection, or association of JumpSport with TrampolineSafety.com and/or as to TrampolineSafety.coms approval of JumpSports products in relation to Springfrees products. 44. JumpSports statements on its website and on TrampolineSafety.com appeared and continue to appear in interstate commerce including on the internet. 45. The foregoing acts of JumpSport deceived, or had the capacity to deceive, a substantial segment of potential consumers. 46. The foregoing acts of JumpSport are likely to influence consumer purchasing decisions. 47. Springfree, along with Springfrees entire line of trampoline product, are in interstate commerce through offices in two states, an internet presence, and sales throughout the United States. 48. Springfree has been and is likely to be injured (both economic and reputational) as a result of JumpSports false and/or misleading representations. 49. JumpSports actions constitute false association in violation of 43(a) of the Lanham Act. 50. JumpSports unlawful acts have caused irreparable injury to Springfree, and will continue to irreparably harm Springfree unless enjoined. 51. JumpSports acts have been willful and deliberate justifying an award of attorney fees.
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52. Upon information and belief, JumpSport has profited from its unlawful actions and has been unjustly enriched to the detriment of Springfree. JumpSports unlawful actions have caused Springfree monetary damage in an amount presently unknown, but in an amount to be determined at trial. COUNT V Injury to Business Reputation Under Tex. Bus. & Com. Code 16.29 53. Springfree realleges and incorporates paragraphs 1 to 52 as if fully set forth herein. 54. JumpSports statements on its website and on TrampolineSafety.com, as identified above, likely tarnished or appropriated the goodwill and reputation associated with Springfree. 55. JumpSports acts constitute a violation of Texas Business and Commercial Code 16.29 for injury to Springfrees business reputation. 56. JumpSports acts have caused irreparable injury to Springfree, and will continue to irreparably harm Springfree unless enjoined. 57. JumpSports acts have been willful and deliberate justifying an award of attorney fees. COUNT VI Texas Common Law Business Disparagement 58. Springfree realleges and incorporates paragraphs 1 to 57 as if fully set forth herein. 59. JumpSports statements on its website and on TrampolineSafety.com, as identified above, are false and disparage Springfree by implying that Springfree trampolines are
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not safe. 60. Upon information and belief, JumpSport published its statements on its website and on TrampolineSafety.com with knowledge that they were false, with reckless disregard about the statements truth, or with ill will or intent to interfere with Springfrees economic interest. 61. Upon information and belief, JumpSport was not privileged to publish the false and disparaging information about Springfree. 62. JumpSports acts have specifically damaged and will continue to damage Springfree. JumpSports acts have caused Springfree monetary damage in an amount presently unknown, but in an amount to be determined at trial. 63. JumpSports acts constitute business disparagement under Texas common law. COUNT VII Defamation 64. Springfree realleges and incorporates paragraphs 1 to 63 as if fully set forth herein. 65. JumpSports website and TrampolineSafety.com are publications. The webpages are available cost-free to the public online. 66. JumpSports representations on its website and on TrampolineSafety.com, as identified above, are statements of fact rather than opinion. 67. JumpSports representations on its website and on TrampolineSafety.com are defamatory about Springfree. 68. JumpSport knew of the falsity of the representations or published the statements with reckless disregard of whether the representations were false or not.
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69. JumpSports acts have damaged and will continue to damage Springfree. JumpSports acts have caused Springfree monetary damage in an amount presently unknown, but in an amount to be determined at trial. 70. JumpSports actions constitute defamation under Texas common law. COUNT VIII Tortious Interference with Contractual and/or Business Relations 71. Springfree realleges and incorporates paragraphs 1 to 70 as if fully set forth herein. 72. Springfree had valid contracts with customers, distributors, and resellers. These agreements are lawful and enforceable contracts. Springfree has fulfilled, in all respects, its obligations under these contracts. 73. Upon information and belief, JumpSport knew of Springfrees contracts and business relations with customers, distributors, and resellers. 74. JumpSport tortiously, willfully and intentionally interfered with Springfrees contracts and business relations by publishing, and continuing to publish, the statements on its website and on TrampolineSafety.com, as identified above. 75. JumpSports activities in publishing the statements on its website and on TrampolineSafety.com caused actual damages or loss to Springfree, which has suffered and will continue to suffer losses and irreparable injury to its business relations and contracts with third parties. 76. The interference was the proximate cause of Springfrees injury. 77. JumpSports actions constitute tortious interference with Springfrees contracts and business relations under Texas common law.
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78. By reason of the foregoing, Springfree is entitled to damages including, but not limited to, exemplary damages and injunctive relief. COUNT IX Tortious Interference with Prospective Contracts and/or Business Relations 79. Springfree realleges and incorporates paragraphs 1 to 78 as if fully set forth herein. 80. There was a reasonable probability that Springfree would have entered into business relationships with certain prospective customers, distributors, as resellers. 81. Upon information and belief, JumpSport knew about these potential contracts and intentionally interfered with the relationships by improperly publishing the statements on its website and on TrampolineSafety.com, as identified above. Upon information and belief, JumpSport acted with a conscious desire to prevent the relationships from occurring or JumpSport knew that the interference was certain or substantially certain to occur as a result of publishing the statements. 82. JumpSports conduct is independently tortious or unlawful because it violates federal and state law as alleged herein. 83. JumpSports activities in publishing the statements on its website and on TrampolineSafety.com caused actual damages or loss to Springfree, which has suffered and will continue to suffer losses and irreparable injury to its prospective business relations and contracts with third parties. 84. The interference was the proximate cause of Springfrees injury. 85. JumpSports actions constitute tortious interference with Springfrees prospective contracts and business relations under Texas common law.
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86. By reason of the foregoing, Springfree is entitled to damages including, but not limited to, exemplary damages and injunctive relief. COUNT X Common Law Unfair Competition 87. Springfree realleges and incorporates paragraphs 1 to 86 as if fully set forth herein. 88. Upon information and belief, JumpSports willful, intentional and illegal acts, as alleged in this Complaint, have interfered and will interfere with Springfrees ability to conduct its business, and constitutes unfair competition at common law. 89. As a result of JumpSports willful, intentional and illegal acts, Springfree has suffered commercial damage for which Springfree may recover. In addition, JumpSports actions warrant the imposition of exemplary damages because, upon information and belief, they were willful, intentional and performed with malice. COUNT XI Common Law Unjust Enrichment 90. Springfree realleges and incorporates paragraphs 1 to 89 as if fully set forth herein. 91. By reason of the foregoing, JumpSport has unjustly enriched itself, and continues to do so, in an unknown amount, and Springfree is entitled to just compensation under the common law of the State of Texas PRAYER Springfree respectfully requests a judgment against JumpSport as follows:
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A. In favor of Springfree and against JumpSport on all of Springfrees claims; B. A declaration that Springfree does not infringe the 795 patent; C. A declaration that the 795 patent is invalid; D. JumpSport be ordered to immediately terminate any further dissemination and displaying of the materials complained of herein; E. JumpSport, its officers, agents, servants, employees, attorneys and all others in active concert or participation with JumpSport, be enjoined and restrained permanently from: a. Disseminating, displaying, or otherwise distributing or causing to be displayed the statements complained of herein or otherwise insinuating that Springfree trampolines are unsafe; b. Unfairly competing with Springfree in any manner whatsoever; c. Causing likelihood of injury to Springfrees business reputation; and d. Committing any other act or making any other statement that constitutes an act of unjust enrichment; F. JumpSport be ordered to file with this Court and serve on Springfree within thirty (30) days after service of such injunction, a written report under oath pursuant to 15 U.S.C. 1116 setting forth in detail the manner and form in which JumpSport has complied with the injunction; G. That JumpSport account for and pay over to Springfree its profits and all damages sustained by Springfree;
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H. Actual damages and exemplary damages; I. An award to Springfree of its costs and attorneys fees incurred in this action; and J. Further relief as the Court may deem just and proper. JURY DEMAND Springfree hereby demands trial by jury on all issues so triable.
Dated: July 9, 2014 Respectfully submitted,
By: /s/ Carl E. Bruce
Carl E. Bruce bruce@fr.com Texas Bar No. 24036278 Rex A. Mann mann@fr.com Texas Bar No. 24075509 Jane J. Du du@fr.com Texas Bar No. 24076355 FISH & RICHARDSON P.C. 1717 Main Street, Suite 5000 Dallas, TX 75201 (214) 747-5070 (Telephone) (214) 747-2091 (Facsimile)
COUNSEL FOR PLAINTIFFS SPRINGFREE L.P. AND SPRINGFREE TRAMPOLINE USA INC.
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