Case 1:22-cv-00195-UNA Document 1 Filed 02/14/22 Page 1 of 13 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

HYDROW, INC. )
)
Plaintiff, )
)
v. ) C.A. No.:
)
iFIT HEALTH & FITNESS, INC., ) DEMAND FOR JURY TRIAL
)
Defendant. )

COMPLAINT FOR DESIGN PATENT AND

TRADE DRESS INFRINGEMENT

Plaintiff Hydrow, Inc. (“Hydrow”) hereby asserts the following claim for design patent

and trade dress infringement against Defendant iFIT Health & Fitness, Inc. (“iFIT”), and states

as follows:

NATURE OF ACTION

1. This is an action for design patent and trade dress infringement arising under the

laws of the United States, Titles 35 and 15, United States Code, based upon iFIT’s infringing

Hydrow’s intellectual property, including Hydrow’s patented rower design protected by United

States Design Patents D898,843 titled “ROWING MACHINE (the “’843 Patent), and Hydrow’s

distinctive trade dress rights.

2. iFIT has sold traditional fitness equipment, and it develops and manufactures

exercise equipment under the brand name NordicTrack, under which it recently launched a rower

product named the RW900 Rower. The RW900 infringes the ‘843 Patent and Hydrow’s trade

dress in the design. iFIT offers for sale and sells the RW900 in place of the patented product

designed, manufactured and sold by Hydrow.

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3. As a result of iFIT’s unlawful infringement, iFIT has been wrongfully enriched,

and Hydrow has been injured through loss of sales and good will, and accordingly seeks

injunctive and monetary remedies under the federal patent statute, 35 U.S.C. §§ 284, 285 and

289, and the federal Lanham Act, 15 U.S.C. §§ 1114, 1116, 1117, 1118 and 1125(a).

THE PARTIES

4. Plaintiff incorporates the preceding paragraphs herein by reference.

5. Plaintiff Hydrow is a Delaware corporation with principal places of business at 10

Summer Street, Boston, MA 02110, and 14 Arrow Street, Cambridge, MA 02138.

6. Hydrow, formerly known as Crew By True Rowing, Inc., was organized under the

laws of Delaware on November 16, 2017. The name was changed to Hydrow, Inc., on May 23,

2019.

7. Defendant iFIT is a Delaware corporation with a principal place at 1500 South

1000 West, Logan, Utah, 84321. On information and belief, Icon Health & Fitness rebranded to

iFIT Health & Fitness in 2021.

8. iFIT sells its products online and through third-party retailers all across the United

States, and additionally markets and sells the RW900 on its website for its NordicTrack product

line, at https://www.nordictrack.com/rowing-machines/rw900-rower-2022.

JURISDICTION AND VENUE

9. Plaintiff incorporates the preceding paragraphs herein by reference.

10. This is an action for patent infringement brought under the patent laws of the

United States, 35 U.S.C. § 1, et seq. This Court has original subject matter jurisdiction over the

claims in this action pursuant to 28 U.S.C. § 1331 and 1338(a).

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11. This action also arises under the federal Lanham Act, 15 U.S.C. § 1051, et seq.

This Court has subject matter jurisdiction over the claims in this action, which relate to trade

dress infringement, pursuant to the provisions of 28 U.S.C. §§ 1331 and 1338(a) and 15 U.S.C. §

1121.

12. This Court has personal jurisdiction over the defendant because it, among other

things: is incorporated under the laws of the State of Delaware and, on information and belief,

has sold products that practice the ‘843 Patent into the stream of commerce with the knowledge,

or reasonable expectation, that actual or potential purchasers and users of such products were

located within this judicial district.

13. Venue is proper in this judicial district pursuant to 28 U.S.C. §§ 1391, 1400

because iFIT is incorporated in and resides in Delaware.

BACKGROUND FACTS

14. Plaintiff incorporates the preceding paragraphs herein by reference.

15. Rowing is in Hydrow founder Bruce Smith’s blood. His ancestor, W.W.

Ruddock, built single sculls for Harvard crew in the late 1800s. Smith has rowed and coached

rowing his entire life. He has coached at the high school, collegiate, and national level. At the

2015 World Rowing Championships, he coached the United States Lightweight Eight to a

Bronze medal. At the local level, Mr. Smith has endeavored to bring rowing to the masses, and

is the former Executive Director of Community Rowing – Boston.

16. Prior to Hydrow, existing rowing machines on the market were ugly, noisy, and

boring. These attributes were somewhat intentional, as rowing machines of prior generations

were meant to appeal only to those committed to enduring the monotonous training offered by

those rowers. See https://www.concept2.com/indoor-rowers (“Concept2 created the original

 Case 1:22-cv-00195-UNA Document 1 Filed 02/14/22 Page 4 of 13 PageID #: 4

rowing ergometer (or rowing machine) in 1981 as a training tool for competitive athletes.”). One

of those early rowers is pictured below:

17. In 2018, Smith sought to change that dynamic by designing a rowing machine

that was stylish and fun. The result was a rower that was inspired by three visual concepts: a

wave, a 1971 Maserati Ghibli, and the bow of a Stämpfli single scull rower. The Hydrow Rower

was the result of that brainstorm and is shown below:

18. Hydrow began selling its Hydrow Rower in 2018, and the product has been an

overwhelming success. The Hydrow Rower has garnered great goodwill, notoriety and praise in
 Case 1:22-cv-00195-UNA Document 1 Filed 02/14/22 Page 5 of 13 PageID #: 5

the market and the media, including articles in Time, Shape, The Independent, British GQ,

Women’s Health, British Vogue, c/net, Wired UK, The Telegraph UK, The Wall Street Journal,

and others. The Hydrow Rower also received a “best design” award from iF Design in 2020.

See https://ifdesign.com/en/winner-ranking/project/hydrow/272357.

19. Hydrow continues to make and sell the Hydrow Rower and related branded

products to be used in conjunction with the Hydrow Rower. These products are offered for sale

on Hydrow’s on-line shop, at https://shop.hydrow.com/, and at physical locations such as Best

Buy.

20. Hydrow filed for patent protection on its design on July 16, 2019. U.S. Patent No.

D898,843 (“the ’843 Patent”) issued on October 13, 2020. The ’843 Patent is valid and

enforceable, and was duly issued in full compliance with Title 35 of the United States Code.

Hydrow is the owner and assignee of all rights, title and interest in the ’843 Patent. A copy of

the ’843 Patent is attached as Exhibit A.

21. The ’843 Patent claims the ornamental design, as shown below:

’843 Patent, FIG. 1.

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22. Hydrow practices the ’843 patent as the Hydrow Rover, which is covered by the

’843 Patent and Hydrow marks the Hydrow Rower with the ’843 Patent number.

23. On information and belief, iFIT sought to exploit the success of the Hydrow

Rower for its own purposes, and recently began selling the RW900, which copies all of the

significant aspects of the award-winning design that has led to the success of the Hydrow Rower.

iFIT began offering the RW900 within the last few weeks. Upon learning of this product,

Hydrow immediately sent a cease and desist letter attached as Exhibit B. iFIT has not agreed to

stop selling the RW900.

24. The overall appearance of iFIT’s RW900 is substantially the same as the design in

the ’843 Patent, and/or at least a colorable imitation thereof:

Hydrow ’843 Patent iFIT RW 900

25. The ordinary observer, seeing the RW900, would be deceived into believing that

it is the same as Hydrow’s patented design. This conclusion is even more apparent when one

considers the prior art. None of the prior art is remotely similar to the design protected by

Hydrow’s patent and used by the RW900. Two of the rowers that could be considered the

“closest” prior art cited on the front of the ’843 patent are shown below:
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26. The unique distinctive contour shape and ornamental design of the Hydrow

Rower is also protected by the common law of trade dress from a likelihood of confusion under

the Lanham Act. 15 U.S.C. §1125(a) (the “Hydrow Trade Dress”).

27. The elements of the Hydrow Rower subject to trade dress protection include,

without limitation: (A) the overall shape and contour of the main support structure that supports

(B) the moveable seat, (C) stationary foot pads, (D) which is tapered down at the ends, (E) with a

boomerang-like angular bend past midway after the foot pads, (F) where the angular bend

section is wider than the ends in a downward horizontal direction, (G) where the structure bend

provides an upward narrowing tapered section from the main base, (H) at the top of which is

disposed an angular neck supporting a monitor facing the rower.

28. The RW900 possess each of the foregoing elements of the Hydrow Trade Dress, as

shown in the comparison below:

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Hydrow Rower NordicTrack RW900

29. Through is sales and marketing of tens of thousands of Hydrow Rowers to

customers through the United States and internationally for over three years, Hydrow has

achieved substantial good will as noted above in paragraph 18. Accordingly, the Hydrow Trade

Dress has gained significant acquired distinctiveness and secondary meaning for its design,

which consumers associate with Hydrow.

30. In contravention to 35 U.S.C. § 271 and § 289, and 15 U.S.C. §1125(a), iFIT

infringed the ’843 Patent and Hydrow Trade Dress by making, using, selling, and/or offering to

sell, or causing others to make, use, sell, and/or offer to sell the RW900.

31. The trade dress used by the iFIT RW900 copies the shape and contour of

Hydrow’s Trade Dress and is likely to cause confusion, mistake, or deception as to the source,

sponsorship, or approval of the iFIT’s products, in that the trade and consumers are likely to

believe, or will believe, that the iFIT’s products are Hydrow’s products.

32. On information and belief, iFIT was aware of the Hydrow Rower before it

designed the RW900, and the shape and contour of iFIT’s RW900 was directly copied from the

Hydrow Rower, knowingly and intentionally to confuse customers.

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CAUSE OF ACTION
COUNT I
(Infringement of U.S. Patent No. D898,843)
[35 U.S.C. §§ 271, 289]

33. Plaintiff incorporates the preceding paragraphs herein by reference.

34. iFIT has infringed, currently infringes, and will continue to infringe, the ’843

Patent unless enjoined by this Court from making, using, offering for sale, importing and/or

selling products infringing Hydrow’s patented design within the United States. 35 U.S.C. §

271(a).

35. On information and belief, iFIT knew of Hydrow, Hydrow’ patented commercial

product, the ’843 Patent, or was willfully blind to its existence, and iFIT knew or was willfully

blind in consciously ignoring the possibility that its actions would infringe the ’843 Patent.

36. As a direct and proximate result of iFIT’s direct and indirect infringement of the

’843 Patent, Hydrow is suffering damages as well as irreparable injury for which it has no

adequate remedy at law. Hydrow will continue to suffer such harm unless iFIT is enjoined.

37. Hydrow is entitled to recover damages under 35 USC § 284 and § 289 to adequately

compensate for iFIT’s infringement.

CAUSE OF ACTION
COUNT II
(Federal Unfair Competition-Trade Dress Infringement)
[15 U.S.C. § 1125(a)]

38. Plaintiff incorporates the preceding paragraphs herein by reference.

39. This is a claim for trade dress infringement arising under the Lanham Act, Section

43(a), 15 U.S.C. § 1125(a).

40. For over three years, Hydrow has been, and is presently, engaged in the

distribution, promotion, and sale of Hydrow Rowers throughout the United States. Continuously

and long prior to iFIT’ acts, Hydrow has been distributing, promoting, and selling in interstate
 Case 1:22-cv-00195-UNA Document 1 Filed 02/14/22 Page 10 of 13 PageID #: 10

commerce Hydrow Rowers using a distinctive trade dress. For a substantial period of time, and

continuing through the present, said Hydrow Rowers were sold having the distinctive trade dress

shown above.

41. The overall shape and contour of the trade dress for Hydrow Rowers are arbitrary

and non-functional. As a result of Hydrow’s established use and extensive promotion and sales,

the trade dress of Hydrow Rowers has acquired distinctiveness and has become well and

favorably known to distributors and end-users as identifying Hydrow as the sole and exclusive

source thereof.

42. Consumers have also come to recognize that the Hydrow Rowers, in their

distinctive trade dress, are of high quality and, as a result, the distinctive trade dress has come to

represent valuable goodwill which Hydrow owns.

43. Hydrow Rowers are well known by their distinctive trade dress which is

recognized as an indicator of origin with Hydrow, and the trade and consumers have come to

rely on this distinctive trade dress as an indication that they are receiving the genuine products of

Hydrow.

44. The Hydrow Trade Dress is distinctive and has acquired secondary meaning.

45. The trade dress used by the iFIT RW900 copies the shape and contour of

Hydrow’s trade dress and is likely to cause confusion, mistake, or deception as to the source,

sponsorship, or approval of iFIT’s products, in that the trade and consumers are likely to believe,

or will believe, that iFIT’s products are Hydrow’s products.

46. Hydrow has never authorized, licensed or consented in any way to iFIT’s use of

Hydrow’s distinctive, well known, and extremely valuable trade dress.

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47. A nearly limitless number of other shapes and contours could have been used on

the RW900 sold and distributed by iFIT, rather than using a design which so closely copies

Hydrow’s well known product.

48. iFIT’s use of the Hydrow Trade Dress has caused and is likely to cause actual

confusion as to the source or origin of iFIT's products and constitutes trade dress infringement.

49. As a result of iFIT’s acts of infringement, Hydrow has suffered and will continue

to suffer damages in an amount to be proven at trial.

50. By reason of the foregoing, iFIT has violated and is continuing to violate Section

43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Hydrow has no adequate remedy at law and is

suffering irreparable harm.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests the Court enter the following orders on

final judgment against iFIT:

1. Pursuant to 35 U.S.C. § 271, enter a judgment that iFIT infringes U.S. Patent No.

D898,843 by making, offering for sale, selling, importing or using the RW900;

2. Pursuant to 35 U.S.C. § 283, grant a preliminary and permanent injunction

enjoining iFIT, its subsidiaries, affiliates, divisions, officers, agents, servants, employees,

directors, partners, representatives, and all parties in active concert and/or participation with iFIT

from directly or indirectly making, having made, selling, offering for sale, distributing, using, or

importing into the United States products that infringe the ’843 Patent;

3. Pursuant to 35 U.S.C. § 284, direct iFIT to account for and pay to Plaintiff all

damages caused by iFIT’s infringement of the ’843 Patent, including lost profits and interest, but

in no event less than a reasonable royalty;

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4. Pursuant to 35 U.S.C. § 289, award Plaintiff the total extent of iFIT’s total profits

derived from sales of the RW900;

5. Award damages and disgorgement of profits for all convoyed and derivative sales

associated with the RW900;

6. Pursuant to 35 U.S.C. § 285, award Plaintiff its costs and attorneys’ fees incurred

in connection with this action, upon a judgment declaring this an exceptional case;

7. Pursuant to 15 U.S.C. § 1125(a), enter a judgment that iFIT infringes Hydrow’s

trade dress for its Rower;

8. Pursuant to 15 U.S.C. § 1116, grant a preliminary and permanent injunction

enjoining and restraining iFIT, its subsidiaries, affiliates, divisions, officers, agents, servants,

employees, directors, partners, representatives, and all parties in active concert and/or

participation with iFIT from directly or indirectly making, having made, selling, offering for

sale, distributing, using, or importing into the United States products that infringes the Hydrow’s

Trade Dress by offering for sale the RW900 or any other confusingly similar rower that is likely

to cause confusion, deception or mistake;

9. Pursuant to 15 U.S.C. § 1117(b), award to Hydrow all of iFIT’s gross profits and

any other damages Hydrow has sustained as a consequence of iFIT’s trade dress infringement

and requiring iFIT to account for all gains, profits and advantages derived by the iFIT from the

sale and distribution of the RW900, and that the award trebled;

10. Pursuant to 15 U.S.C. § 1117, award to Hydrow the costs of this action together

with reasonable attorneys’ and investigators’ fees and prejudgment interest; and

11. Such other and further relief as the Court deems just and proper.
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JURY DEMAND

Plaintiff demands trial by jury pursuant to Fed. R. Civ. P. 38(b).

HEYMAN, ENERIO
GATTUSO & HIRZEL LLP
OF COUNSEL:
/s/ Dominick T. Gattuso
Christopher S. Schultz Dominick T. Gattuso (##3630)
Howard J. Susser 300 Delaware Avenue, Suite 3200
BURNS & LEVINSON, LLP Wilmington, DE 19081
125 High Street T: (302) 472-7300
Boston, MA 02110 dgattuso@hegh.law
T: (617) 345-3000
cschultz@burnslev.com Attorneys for Plaintiff Hydrow, Inc.
hsusser@burnslev.com

Dated: February 14, 2022

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EXHIBIT A
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JS 44 (Rev. 09/19) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

Hydrow, Inc. iFIT Health & Fitness, Inc.

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Dominick T. Gattuso
Heyman Enerio Gattuso & Hirzel LLP
300 Delaware Ave., Suite 200, Wilmington, DE 19801

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6

Foreign Country
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CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
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’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
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Confinement
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’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 USC S 1, et seq.; 15 USC S 1051, et seq.; 28 USC S 1331, 1338(a)
VI. CAUSE OF ACTION Brief description of cause:
Suit for patent and trade dress infringement
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
02/14/2022 Dominick T. Gattuso
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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JS 44 Reverse (Rev. 09/19)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
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Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.