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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF VERMONT


CYBEX INTERNATIONAL, INC.
Plaintiff
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Civil Action No. 5: II -Cv_,QC19
TUFFSTUFF FITNESS EQUIPMENT, INC.
Defendant
COMPLAINT FOR FEDERAL PATENT, TRADEMARK AND TRADE DRESS
INFRINGEMENT
1. Plaintiff, Cybex International, Inc ("Cybex") brings this action seeking monetary
damages and injunctive relief against Defendant TuffS tuff Fitness Equipment, Inc.
("TuffStuff') to remedy TuffStuffs infringement of U.S. Patent No. 8,057,367 (the '367
patent, attached as Exhibit A) and U.S. Patent No. 8,070,658 (the '658 patent, attached
as Exhibit B), both entitled "Exercise Apparatus With Selectively Variable
Stabilization," as well as TuffS tuffs infringement and/or dilution of Cybex' trademarks
and trade dress in the brand name "FT -450" or "FT -450/XT" Functional Trainer and its
promotional materials.
PARTIES
2. Cybex incorporates by reference each and every allegation contained in the paragraph
above as though fully set forth herein.
3. Plaintiff Cybex is a corporation organized under the laws of New York that conducts
business generally in the State of Vermont, including marketing, offering for sale and/or
selling the products utilizing the methods set forth in the patents-in-suit, to wit, theFT-
450.
4. On information and belief, Defendant TuffStuff is a corporation that regularly conducts
and/or transacts business in the State of Vermont, including marketing, selling and/or
offering for sale its line of products generally in the State ofVerrnont, which includes at
least one product, the TuffStuffFTX, the use of which infringes upon the patents-in-suit
and infringes upon and dilutes Cybex' trademark in the name and trade dress of its FT-
450.
JURISDICTION AND VENUE
5. Cybex incorporates by reference each and every allegation contained in the paragraphs
above as though fully set forth herein.
6. This is an action for federal patent infringement arising under 35 U.S.C. 271 et seq. and
federal trademark infringement/dilution arising under 15 U.S.C 1125.
7. This Court has original jurisdiction over this matter pursuant to 28 U.S.C. 1331, 1332
and 1338(a); and 15 U.S.C. 1116(a) and 1121.
8. This Court has personal jurisdiction over the parties because both transact business in
Vermont.
9. Venue is proper in this district pursuant to 28 U.S.C. 1391(b) and (c) and 1400(b)
because the Defendant has committed acts of infringement, to wit, advertising, selling
and/or offering for sale a product in the District, the use of which infringes the patents-in-
suit, as well as trademark infringement/dilution, within the District.
FACTS
10. Cybex incorporates by reference each and every allegation contained in the paragraphs
above as though fully set forth herein.
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11. Cybex is engaged in the business of the design, development, sale and manufacture of
exercise equipment.
12. Cybex owns the entire right, title and interest in and to the '367 and '658 patents, issued
on November 15 and December 6, 2011, respectively.
13. In early 2009 Cybex introduced a product that embodied the methods called for by the
patents-in-suit, specifically, the FT-450.
14. The "stabilization pad technology" that is the subject of the patents-in-suit and is utilized
in the FT -450 Functional Trainer is unique and allows the user to isolate specific muscle
groups, which in turn promotes greater focus of effort on specific muscles, and thus
greater efficiency of workout.
15. Cybex has expended substantial time, effort and financial resources in connection with
the promotion, sale, development and design of the FT -450, including but not limited to,
funding third party biomechanical research projects relating to the stabilization pad
technology.
16. Cybex has established and maintains high standards of quality for its FT -450 brand
product bearing or being offered for sale under the name FT-450. For example, theFT-
450 is made in the United States so that Cybex can control the manufacturing process
from raw materials to shipment. The automobile-grade finish of the FT -450 is the result
of an advanced powder coating process used by Cybex in combination with proprietary
powders developed with DuPont that assures a high quality, long lasting finish that
purchasers associate with Cybex equipment designs and products. In addition, Cybex
purchases all steel from U.S. based suppliers to stringent material specification and
chemistry. This means the best grade materials are put to work with a superior
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manufacturing process, resulting in high levels of quality. Finally, Cybex' upholstery is
not only designed to look good but is also built to endure the most rigorous of workouts.
Cybex achieves this level of quality in its cushions by sewing with double stitched nylon
bonded thread and using only the highest quality vinyl, wood and foam. The foregoing
quality control ensures that all FT-450 units, and indeed all functional trainers utilizing
Cybex' patented stabilization pad technology, will be identified by purchasers as
emanating from, licensed by, sponsored by, or authorized by, Cybex.
17. Cybex' FT-450s are widely distributed throughout the United States. There is a
substantial demand for the product, and because of that demand, the right to manufacture,
sell, distribute and/or license such goods is a valuable commercial property right.
18. Cybex' FT-450 has been advertized by Cybex to the public, including through the
Internet and written sales material.
19. Cybex' products, and the appearance and design of the FT-450 in particular in addition to
the FT -450 brand name, have come to be known to the purchasing public throughout the
United States as representing products of the highest quality. As a result the unique
features and appearance of the FT -450, valuable good will has been established and is
now associated with the name and appearance of the FT -450 which are of inestimable
value to Cybex.
20. The FT-450's stabilization pad technology, appearance and design is inherently
distinctive and is immediately identified by the public as being associated with Cybex.
21. Due to its unique design and generally high quality, theFT -450 has become Cybex'
largest single unit strength revenue generator and its fourth highest volume strength unit.
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22. On information and belief defendant has marketed and/or offered for sale at least one
product, specifically, the TuffStuffFTX, the use of which infringes Claims 1 through 11
ofthe '367 patent and Claim 1-5 ofthe '658 patent. This FTX is confusingly similar in
visual and structural appearance and design such that prospective purchasers can be
misled into believing that the FTX originates from the same source as the FT-450.
23. At all relevant times, Defendant has had actual and/or constructive knowledge of the
claims of the patents-in-suit and the applications therefor.
COUNT I
(PATENT INFRINGEMENT)
24. Cybex incorporates by reference each and every allegation contained in the paragraphs
above as though fully set forth herein.
25. TuffStuffs aforesaid activities constitute a direct, contributory and/or inducement of
infringement of the aforesaid patents in violation of35 U.S.C. 271 et seq.
26. TuffS tuffs aforesaid infringement is, and was, willful and knowing.
27. Cybex has suffered and will continue to suffer immediate and ongoing irreparable harm
and monetary damages as a result ofTuffStuffs willful patent infringement.
COUNT TWO
(VIOLATION OF THE LANHAM ACT, 15 U.S.C 1125)
28. Cybex incorporates by reference each and every allegation contained in the paragraphs
above as though fully set forth herein.
29. Defendant's aforesaid conduct constitutes an unfair attempt to trade on the goodwill of
Plaintiffs business in the FT-450 by intentionally attempting to copy and copying the
design, shape, size, appearance, look and feel of the FT-450, its name ("FTX" versus
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"FT-450"), and its associated promotional materials, and as such, is an attempt to pass
off the FTX as the same or similar in source, design or quality to the FT-450.
30. The aforesaid conduct constitutes a violation of Section 43(a) ofthe Lanham Act, 15
U.S.C. 1125(a), and is being undertaken with full knowledge ofCybex' exclusive rights
in and to its FT-450 mark and its trade dress in the FT-450, and such acts have been made
and are being made in conscious disregard for Cybex' rights, entitling Cybex to an award
ofTuffStuffs profits, up to thee times Cybex' actual damages, and Cybex' attorneys'
fees in bringing this action, pursuant to 15 U.S.C. 1117(a).
31. Plaintiff is suffering and will continue to suffer harm and monetary damage in an amount
to be determined at trial unless and until Defendant is enjoined from continuing to engage
in this unlawful conduct.
EXCEPTIONAL CASE
32. This is an exceptional case under 35 U.S.C. 285 in which Cybex is entitled to attorney's
fees incurred in connection with prosecuting this action.
WHEREFORE, Plaintiff requests that this Court enter judgment:
A. Declaring that TuffStuff infringes and has infringed the '367 and '658 patents;
B. Declaring that TuffStuffs infringement of the '367 and '658 patents has been willful;
C. Declaring that TuffStuff infringes and has infringed Cybex' trademark and trade dress;
D. Declaring that TuffStuffs infringement ofCybex' trademark and trade dress has been
willful;
E. Awarding Cybex a preliminary and permanent injunction restraining TuffStuff and all
those in active concert or privity with it from further infringement of the '367 and '658
patents, and further infringement ofCybex' trademark and trade dress in the FT-450;
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F. Awarding Cybex treble damages based on TuffStuffs willful infringement of the '367
and '658 patents, FT-450 trademark and trade dress, as provided under 35 U.S.C. 284 and
15 U.S.C. 1117;
G. Declaring that this is an exceptional case and awarding Cybex its reasonable attorneys
fees and costs pursuant to 35 U.S.C. 285; and
H. Granting Cybex such other and further relief as the Court deems just and proper.
PLAINTIFF HEREBY DEMANDS TRIAL BY JURY
Respectfully submitted,
Dated at Burlington, Vermont this 21st day of December, 2011.
CYBEX INTERNATIONAL, INC.,
By its attorneys,
By: (?
Ian P. Carleton, Esq.
SHEEHEY, FURLONG AND BEHM P.C.
30 Main Street/P.O. Box 66
Burlington, VT 05402
(802) 864-9891
icarleton(a)sheeheyvt.com
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By: /s/ )
M. Lawrence Oliverio, Esq.
RISSMAN HENDRICKS AND OLIVERIO, LLP
100 Cambridge Street, Suite 2101
Boston, MA 02114
(617) 933-4430
loliverio@rhoiplaw.com
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