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Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 1 of 14 Page ID #:1

1 LEWIS BRISBOIS BISGAARD & SMITH LLP


JONATHAN S. PINK, SB# 179685
2 E-Mail: Jonathan.Pink@lewisbrisbois.com
633 West 5th Street, Suite 4000
3 Los Angeles, California 90071
Telephone: 213.250.1800
4 Facsimile: 213.250.7900
5 Attorneys for Plaintiff Hyper Ice, Inc.
6
7
UNITED STATES DISTRICT COURT
8
CENTRAL DISTRICT OF CALIFORNIA
9
10
HYPER ICE, INC. a California corporation, CASE NO.
11
Plaintiff,
12 ORIGINAL COMPLAINT FOR:
vs. 1. PATENT INFRINGEMENT;
13 2. FEDERAL TRADE DRESS
YOURNICEDAY.COM, a business entity of INFRINGEMENT;
14 unknown type; the UNKNOWN INDIVIDUAL 3. AND FEDERAL UNFAIR
OR BUSINESS ENTITY OWNER OF TUCOWS COMPETITION
15 INC. REGISTRY DOMAIN ID:
2383380252_DOMAIN_COM-VRSN; PING Trial Date: None Set
16 ZHOU, an individual; and DOES 1-10.
17 Defendants

18
19
20 Plaintiff Hyper Ice, Inc. ("Plaintiff") files this Complaint against defendants

21 Yourniceday.com, the unknown individual or business entity owner of Tucows Inc. Registry
Domain ID 2383380252 Domain Com-VRSN, Ping Zhou, and DOES 1-10 (collectively,
22
"Defendants" and individually “Defendant”), and demanding a trial by jury alleges as follows:
23
I. THE PARTIES
24
1. Plaintiff is a California Corporation with a principal place of business at 15440
25
Laguna Canyon Rd. #230, Irvine, California 92618.
26
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 2 of 14 Page ID #:2

1 2. Upon information and belief, Defendant Yourniceday.com is a business entity

2 of unknown type, operating from an unknown physical location, but with an on-line
presence at Yourniceday.com.
3
3. Upon information and belief, Defendant owner of Tucows Inc. Registry Domain
4
ID 2383380252 Domain Com-VRSN is an individual or business entity of unknown type,
5
operating from an unknown physical location who owns or otherwise controls Defendant
6 Yourniceday.com.
7 4. Upon information and belief, Defendant Ping Zhou is an individual who owns
8 or otherwise controls Defendants Yourniceday.com and/or the owner of Tucows Inc.
9 Registry Domain ID 2383380252 Domain Com-VRSN.
5. Upon information and belief, at all relevant times mentioned herein,
10
Defendants DOES 1 through 10 caused injuries and damages to the Plaintiff in the Central
11
District of California. The true names and capacities, whether individual, corporate,
12
partnership, associate or otherwise, of Defendants sued as DOES 1 through 10, inclusive, are
13 currently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names.
14 Plaintiff is informed and believes, and based thereon alleges, that each of the Defendants
15 designated herein as a DOE is legally responsible in some manner for the events and
16 happenings referred to herein, and caused injury and damage proximately thereby to
17 Plaintiff as alleged. Plaintiff will seek leave of this Court to amend this Complaint to show
the true names and capacities of the defendants designated herein as DOES when the same
18
have been ascertained.
19
6. Whenever in this Complaint reference is made to “Defendants,” such allegation
20 means the acts of Defendants acting individually, jointly and/or severally.
21 II. JURISDICTION
22 7. This is an action for patent infringement arising under the patent laws of the
23 United States, 35 U.S.C. § 271, and for violations of the Lanham Act, 15 U.S.C. §1051 et seq.
24 8. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331 and 1338(a)-(b) because it involves substantial claims arising under the Patent Act
25
and Lanham Act.
26
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
2
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 3 of 14 Page ID #:3

1 9. Additionally, the court has subject matter jurisdiction over all of Plaintiff’s

2 claims pursuant to 28 U.S.C. § 1332 as the parties are diverse and amount in controversy
exceeds $75,000.00.
3
10. This Court has specific personal jurisdiction over Defendants as the harm
4
caused by Defendants was expressly aimed at Plaintiff, whose principal place of business is
5
located in Southern California. Additionally, specific jurisdiction exists as a result of the
6
Defendants’ selling of infringing products into the stream of commerce knowing such
7
products would be sold in this state and this district, which acts form a substantial part of
8
the events or omissions giving rise to Plaintiff’s claims.
9
11. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (c)
10
because a substantial part of the events, actions or omissions giving rise to the claims
11
occurred in this district, and because none of the named Defendants resides in the United
12
States.
13
III. GENERAL ALLEGATIONS
14
Plaintiff and Its Protected Intellectual Property Rights
15
A. Design Patent Rights
16
12. Plaintiff is an internationally known purveyor of sports-injury-recovery
17 devices, including, without limitation, its cordless, state-of-the-art vibration massage device,
18 called the HYPERVOLT.
19 13. An image of the HYPERVOLT is shown below:

20
21
22
23
24
25
26 14. On February 22, 2018, Patent Application No. D/637,855 was filed with the

27 U.S. Patent and Trademark Office (“USPTO”) to protect the invention of Robert Marton and

LEWIS 28 Anthony Katz. On August 6, 2019, the USPTO issued United States Patent Number D855,822,
BRISBOIS 4846-0753-8864.1
3
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 4 of 14 Page ID #:4

1 entitled “Percussive Massage Device” (hereinafter that patent is referred to as “the ‘822
2 Patent”) in and to the HYPERVOLT. A true and correct copy of the ‘822 Patent is attached
hereto as Exhibit 1. The ownership rights to the design disclosed and claimed in the ‘822
3
Patent have been assigned to Plaintiff as exclusive assignee in an assignment recorded with
4
the USPTO.
5
15. The ‘822 Patent pertains to a particular ornamental design for the
6 HYPERVOLT, a percussive massage device. The design disclosed and claimed in the ‘822
7 Patent includes the following ornamental features: (i) a cylindrical center post; (ii) an
8 intersecting, cylindrical cross bar, one extreme end of which contains the percussive
9 massage head, the other end of which is flat and contains a series of small holes, roughly
arranged in concentric circles; (iii) a straight edged, half-oval shape near the cylindrical
10
handle with an indented circle; (iv) an illuminated line across the bottom quadrant of the
11
handle; (v) four horizontal cut-out lines across the top quadrant of device, in a location that
12
is roughly the polar opposition to illuminated line in the handle, referenced above; and (vi) a
13 top of which is flat and contains a series of small holes, roughly arranged in concentric
14 circles. These ornamental features, among others, give the percussive massage device its
15 distinct patented design.
16 B. Trade Dress Rights
16. In addition to the foregoing , the HYPERVOLT consists of a distinctive trade
17
dress in its overall design (the “HYPERVOLT Trade Dress”).
18
17. The strength and distinctiveness of the HYPERVOLT Trade Dress is buttressed
19
by its secondary meaning in the marketplace. Plaintiff has marketed, promoted, advertised,
20 and sold the HYPERVOLT product throughout the United States and throughout the world.
21 18. As a result of Plaintiff’s widespread use and display of the HYPERVOLT Trade
22 Dress, the public has come to recognize and identify the product bearing the HYPERVOLT
23 Trade Dress as emanating from, sponsored by, or endorsed by Plaintiff.
24 19. Beginning in 2018, and continuing without interruption, expended a great deal
of time, effort, money in the promotion of its HYPERVOLT product. Due to HYPERVOLT’s
25
unique design, robust marketing efforts, media coverage, and market penetration, the
26
HYPERVOLT has received industry praise and recognition for its highly distinctive design.
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
4
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 5 of 14 Page ID #:5

1 20. Adding to its recognition and secondary meaning in the marketplace, Plaintiff’s

2 HYPERVOLT product has been featured in numerous magazines, press articles, and reviews.
By way of example, HYPERVOLT has been recognized by: (1) Industry Module on its “Global
3
Massage Gun Market 2019” list; (2) New York Magazine in its May 20, 2019 list of “The Best
4
Gifts for Dads with Sore Necks and Backs, According to Experts;” (3) The Manual in its
5
article, “This Insane Hypervolt Massager Will Rattle Your Brain and Relax Your Muscles”; (4)
6 People in its article, “We Tried It: A Stretching Class and Personal Stretch Session;” (5) Los
7 Angeles Times in its article, “The Mother’s Day Gifts Fit Moms Really Want (No Peonies,
8 Please”); (6) Runner’s World in its article, “The Hyperice Hypervolt Makes Foam Rollers
9 Obsolete;” (7) GQ in its article “The Massage Tool That Will Make Recovery Easier Than
Ever.”
10
21. As a result of the foregoing, the HYPERVOLT Trade Dress has acquired
11
distinctiveness in the market place. Indeed, because of Plaintiff’s extensive promotional
12
activities and widespread display of its HYPERVOLT product directed to the public, and as a
13 consequence of Plaintiff’s fair and honorable dealings with its customers, the relevant
14 consuming public has come to recognize and associate sports-injury-recovery devices
15 bearing the HYPERVOLT Trade Dress as high quality goods connected with or offered by a
16 single source, Plaintiff.
22. Thus, the HYPERVOLT Trade Dress has established strong secondary meaning
17
and extensive goodwill.
18
23. Plaintiff devotes extensive time, effort, money and other resources in
19
developing its intellectual property, and in promoting and preserving its reputation for
20 creating high quality sports-injury-recovery devices such as the one at issue here such that
21 the HYPERVOLT Trade Dress has come to symbolize the valuable goodwill and reputation of
22 Plaintiff.
23 Defendants’ Unlawful Conduct

24 24. Defendants are not licensed or otherwise authorized by Plaintiff to


manufacture, sell or offer for sale an article of manufacture that embodies or is a colorable
25
imitation of the ‘822 Patent.
26
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
5
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 6 of 14 Page ID #:6

1 25. Defendants are not licensed or otherwise authorized to make, use, offer for

2 sale and/ or sell directly and/or through intermediaries in this district and/or elsewhere in
the United States any product that embodies one or more claims of the ‘822 Patent.
3
26. Nor are Defendants licensed or otherwise authorized by Plaintiff to market
4
any product that embodies or is a colorable imitation of the HYPERVOLT Trade Dress.
5
27. Nonetheless, on or about October 28, 2019, Plaintiff learned, and based thereon
6 alleges, that Defendants began competing with Plaintiff by manufacturing and selling a
7 percussive massage device with an overall configuration identical to the design claimed by
8 Plaintiff in the ‘822 Patentand which comprises the HYPERVOLT Trade Dress (hereinafter,
9 the “Infringing Massage Gun”). See, e.g. a print out of Defendants’ website,
https://yourniceday.com/products/last-day-promotion-multifunctional-massage-gun-helps-relieve-
10
muscle-soreness-and-stiffness?_pos=1&_sid=5e8fbad71&_ss=r (last accessed on January 16,
11
2020), a true and correct copy of which is attached hereto as “Exhibit 2.”
12
28. Specifically, a side-by-side comparison of the HYPERVOLT and the Infringing
13 Massage Gun is set forth below:
14
15
16
17
18
19
20
21
22
23
Hypervolt Infringing Massage Gun
24 (https://yourniceday.com/products/multifunctional-
massage-gun-helps-relieve-muscle-soreness-and-
25 stiffness-70-off-only-
today?_pos=4&_sid=96a13aed9&_ss=r)
26
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
6
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 7 of 14 Page ID #:7

1 29. Upon learning of this infringement, Plaintiff sent Defendant Yourniceday.com a

2 letter on October 28, 2019, demanding that it immediately cease and desist. A true and
correct copy of that letter is attached hereto as “Exhibit 3.”
3
30. When Defendants failed to abide by the letter of October 28, 2019, Plaintiff
4
sent another letter dated November 22, 2019, again demanding that Defendants cease and
5
desist their infringing activity. A true and correct copy of that email is attached hereto as
6 “Exhibit 4.”
7 31. In addition to including Shopify.com (“Shopify”) in its original emailing of
8 Exhibits 4 and 5, Plaintiff sent Shopify.com, the website that hosts Yourniceday.com,
9 infringement notices on October 28, 2019 and November 25, 2019 in order to alert
Defendant of its continuing misconduct. True and correct copies of those notices are
10
attached hereto as Exhibits 5 and 6, respectively.
11
32. Exhibit 5 state, in relevant part, that Plaintiff owns, inter alia, patent rights in
12
the ‘822 patent, that Defendants here have infringed those patent rights, and that Plaintiff
13 therefore encourages Shopify to deal with this infringement directly and take all appropriate
14 measures to remove from this vendor’s offerings and others products that infringe
15 Hyperice’s intellectual property rights. However, even though Shopify responded by
16 confirming that the infringing content had been taken offline, the Infringing Massage Gun is
17 still advertised, sold, and distributed on yourniceday.com.
33. Shopify is fast becoming one of the world’s most valuable online retail
18
companies. While it is a Canadian e-commerce company headquartered in Ottawa, Ontario,
19
it maintains two offices in the United States: (i) 33 New Montgomery Street, Ste. 750 San
20 Francisco, California 94105; and (ii) 627 Broadway, 9th Floor New York, New York 10012,
21 and is publicly traded on the New York Stock Exchange (ticker symbol SHOP).
22 34. Shopify’s website is a vast online marketplace where it retails products and
23 serves as a host website for (mostly) of third-party vendors. Plaintiff is informed and
24 believes, and thereon alleges, that in order to use Shopify’s services, third-party vendors
such as the defendants here must assent to Shopify’s terms of service. In exchange for the
25
foregoing, Shopify offers assistance and guidance with designing, setting pricing and
26
facilitating payments for the websites it hosts. Although Shopify does not have direct
27 influence over the design and manufacture of third-party products (such as those at issue

LEWIS 28
BRISBOIS 4846-0753-8864.1
7
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 8 of 14 Page ID #:8

1 here), Plaintiff is informed and believes, and thereon alleges, that Shopify has the right in its
2 sole discretion to suspend, prohibit, or remove any product listings and/or to terminate or
suspend any hosting services to third-party vendors for any reason, including the
3
infringement of intellectual property rights such as those at issue here. Indeed, as third-
4
party vendors using the Shopify website are not obligated to use real names or to provide a
5
physical address for their business to users, Shopify is in a better position than the Plaintiff
6 to prevent the sale of infringing products once Shopify has been notified of the same. Based
7 on the foregoing, Plaintiff is informed and believes, and thereon alleges, that Shopify, which
8 exerts substantial market control over product sales on its site, jointly with the Defendants,
9 offers for sale the product at issue in this lawsuit.
35. In light of the foregoing, Plaintiff is informed and believes, and thereon alleges,
10
that the Defendants in this action have not only ignored the cease and desist letters Plaintiff
11
has sent, they have continued to manufacture, sell and/or offer for sale the Infringing
12
Massage Gun in conscious disregard of Plaintiff’s intellectual property rights of Plaintiff’s
13 rights, and they have done so in direct competition with Plaintiff’s business.
14 FIRST CLAIM FOR RELIEF
15 (Direct Patent Infringement of the ‘822 Patent Under 35 U.S.C. §271(a); asserted
16 against all Defendants and Does 1-5)

17 36. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

18 through 35 above, as though set forth fully herein.


37. At all times herein mentioned, the ‘822 Patent was and is valid and fully
19
enforceable.
20
38. As shown below, a side-by-side comparison of Plaintiff’s ‘822 Patent (on the
21 left) and Defendants’ Infringing Massage Gun (on the right) quickly reveals that the
22 Infringing Massage Gun appears substantially the same as the ‘822 Patent to an ordinary
23 observer, and indeed, the resemblance is so close as to deceive an observer, inducing
24 him/her to purchase one supposing it to be the other:
25
26
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
8
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 9 of 14 Page ID #:9

1
2
3
4
5
6
7
8
9
10
11
39. As such, Defendants have directly infringed, and continue to directly infringe,
12 one or more claims of the ‘822 Patent under 35 U.S.C. §271(a) by making, having made,
13 using, offering for sale, and/or selling directly and/or through intermediaries, in this district
14 and/or elsewhere in the United States, one or more of the Infringing Massage Guns, and/or
15 by importing into the United States one or more of the Infringing Massage Guns.
16 40. Defendants’ infringement of the ‘822 Patent has caused and will continue to
cause great damage to Plaintiff and is thereby entitled to an award of damages adequate to
17
compensate it for the infringement in an amount that is in no event less than a reasonable
18
royalty pursuant to 35 U.S.C. § 284.
19
41. Additionally, Defendants had knowledge of the ‘822 Patent before the filing of
20 this Complaint via Plaintiff’s multiple cease and desist communications, but have
21 nevertheless continued to directly infringe the ‘822 Patent, despite an objectively high
22 likelihood that its actions constitute infringement of the ‘822 Patent. Accordingly,

23 Defendants’ infringement has been and continues to be willful, and Plaintiff is entitled to
enhanced damages under 35 U.S.C. §284.
24
SECOND CLAIM FOR RELIEF
25
(Contributory Patent Infringement of the ‘822 Patent Under 35 U.S.C. §§271(b);
26
asserted against all Defendants and Does 1-5)
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
9
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 10 of 14 Page ID #:10

1 42. Plaintiff incorporates by reference the allegations contained in Paragraphs 1

2 through 41 above, as though set forth fully herein.


43. Plaintiff is informed and believes, and thereon alleges, that at all times herein
3
mentioned, Defendants and Does 1 through 5 knew that the ‘822 Patent was (and is) valid
4
and enforceable, knew of the direct infringement of the ‘822 Patent as alleged above, and
5
knew that their contributory activity as alleged herein would cause that direct infringement
6 of the ‘822 Patent.
7 44. Plaintiff is informed and believes, and thereon alleges, that Defendants’ and
8 Does 1 through 5’s knowledge of the foregoing is evidenced by the numerous cease and
9 desist letters Plaintiff sent to Defendants and to Shopify, as alleged above (copies of which
are attached as previously referenced Exhibits hereto).
10
THIRD CLAIM FOR RELIEF
11
(Federal Trade Dress Infringement Under 15 U.S.C. § 1125(a); asserted against
12
all Defendants and Does 5-10)
13
45. Plaintiff incorporates by reference the allegations contained in Paragraphs 1
14 through 44 above, as though set forth fully herein.
15 46. Plaintiff has continuously and pervasively used the HYPERVOLT Trade Dress
16 over the last several years.
17 47. By virtue of its substantially exclusive use of the HYPERVOLT Trade Dress,

18 Plaintiff owns a valid and protectable interest in the HYPERVOLT Trade Dress.
48. Through the promotion, advertisement, marketing and sale of goods under the
19
HYPERVOLT Trade Dress, the consuming public has come to recognize that the HYPERVOLT
20
Trade Dress indicates a common origin of goods and services.
21 49. Without Plaintiff’s authorization or consent, and having knowledge of
22 Plaintiff’s prior rights in the HYPERVOLT Trade Dress, Defendants have copied, distributed,
23 advertised, sold, offered for sale the Infringing Massage Gun embodying the HYPERVOLT
24 Trade Dress to the consuming public.
25 50. This conduct is likely to induce consumers to believe, contrary to the fact, that
Defendants’ product bearing the HYPERVOLT Trade Dress is sponsored, endorsed, approved
26
by or connected with Plaintiff.
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
10
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 11 of 14 Page ID #:11

1 51. As a direct and proximate result of Defendants’ unlawful conduct, Defendants

2 have misappropriated Plaintiff’s rights in the HYPERVOLT Trade Dress, as well as the
goodwill associated therewith, and have diverted sales and profits from Plaintiff to
3
Defendants. Thus, as a direct and proximate result of Defendants’acts of willful
4
infringement, Plaintiff has suffered and/or will suffer damage to its valuable brand and
5
reputation, and other damages in an amount to be proven at trial, including Defendant’s
6 profits and Plaintiff’s lost profits.
7 52. Additionally, because Plaintiff has sent Defendants two separate cease and
8 desist letters, Defendants had actual knowledge of Plaintiff’s prior and senior rights in the
9 HYPERVOLT Trade Dress. As a result, Defendants have committed their infringement with
full knowledge of Plaintiff’s rights in the HYPERVOLT Trade Dress. Thus, Defendants have
10
willfully, deliberately, and maliciously engaged in the described acts with an intent to injure
11
Plaintiff and to deceive the public.
12
53. Defendants’ conduct has been and is being committed with the intent and
13 purpose of appropriating and trading upon the goodwill and reputation associated with
14 Plaintiff’s HYPERVOLT Trade Dress. Such acts have damaged, impaired and diluted that part
15 of Plaintiff’s goodwill symbolized by its well-known HYPERVOLT Trade Dress, to Plaintiff’s
16 immediate and irreparable harm.
54. Defendants’ unauthorized use of a colorable imitation of Plaintiff’s
17
HYPERVOLT Trade Dress constitutes trade dress infringement in violation of 15 U.S.C. §
18
1125(a). Upon information and belief, Defendant has profited from this infringement.
19
55. Defendants’ conduct has caused damage to Plaintiff in an amount to be
20 determined at trial, and unless restrained, will continue to seriously and irreparably impair
21 further the value of Plaintiff’s HYPERVOLT Trade Dress, for which there is no adequate
22 remedy at law.
23 56. In light of the foregoing, Plaintiff is entitled to injunctive relief prohibiting

24 Defendants from using the HYPERVOLT Trade Dress or any colorable imitation thereof.
Additionally, as a result of the willful infringement, Plaintiff is entitled to recover from
25
Defendants all damages, including attorney’s fees and a disgorgement of Defendants’ illicit
26
profits in an amount not yet known, as well as the costs of this action.
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
11
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 12 of 14 Page ID #:12

1 FOURTH CLAIM FOR RELIEF

2 (Federal Unfair Competition – 15 U.S.C. §1125(a))


57. Plaintiff repeats, realleges, and incorporates by reference, as though fully set
3
forth herein, the allegations contained in Paragraphs 1-56.
4
58. Plaintiff owns all right, title, and interest in and to the above referenced
5
HYPERVOLT Trade Dress.
6 59. Plaintiff has actively marketed, promoted, and continuously sold the products
7 embodying the HYPERVOLT Trade Dress since 2018 such that it has become distinctive of
8 Plaintiff’s goods.
9 60. Without Plaintiff’s authorization or consent, and having knowledge of
Plaintiff’s prior rights in the HYPERVOLT Trade Dress, Defendants have copied, distributed,
10
advertised, sold, offered for sale the Infringing Massage Gun embodying the HYPERVOLT
11
Trade Dress to the consuming public in direct competition with Plaintiff, in or affecting
12
interstate commerce.
13 61. Defendants’ use of the HYPERVOLT Trade Dress has caused a likelihood of
14 confusion of members of the public.
15 62. Defendants’ acts set out above constitute trade dress infringement in violation

16 of § 43(a) of the Lanham Act and Federal Unfair Competition laws.


63. By reason of the acts alleged herein, Plaintiff has suffered damage to its
17
business, reputation and goodwill and monetary damages in an amount not yet determined,
18
but currently estimated at not less than $200,000.00
19
64. On information and belief, Defendants’ conduct described herein is willful,
20 wanton, malicious, oppressive and in conscious disregard of Plaintiff’s rights in its
21 HYPERVOLT Trade Dress, and Plaintiff is entitled to damages pursuant to 15 U.S.C. § 1117,
22 including Defendants’ profits, Plaintiff’s actual damages and costs of this action, punitive and
23 exemplary damages and reasonable attorneys’ fees.
24 IV. PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment as follows:
25
1. That judgment be entered in favor of Plaintiff and against Defendants on all
26
claims for relief in Plaintiff’s Complaint.
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
12
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 13 of 14 Page ID #:13

1 2. For damages suffered by Plaintiff in an amount to be proven at trial on all of

2 Plaintiff’s claims for relief, but currently estimated at not less than $500,000.00.
3. For an award trebling of damages and/or exemplary damages because of
3
Defendants’ willful infringement.
4
4. For Plaintiff’s costs of suit herein including attorneys’ fees.
5
5. For injunctive relief to: (1) prohibit the continued acts of Defendants, and
6 everyone of them, along with all third parties who may be, in any way, acting in association,
7 affiliation, alliance, conjunction, collaboration or confederation with the Defendants, or any
8 one of them, from selling, offering for sale, importing, manufacturing, copying, distributing,
9 or offering to distribute any and all products embodying the ‘822 Patent and/or the
HYPERVOLT Trade Dress, and (2) for purposes of preventing the irreparable harm alleged
10
herein from happening again in any respect.
11
6. For such other and further relief as the Court deems just and proper.
12
13 DATED: January 16, 2020 LEWIS BRISBOIS BISGAARD & SMITH LLP
14
15 By: /s/ Jonathan S. Pink

16 Jonathan S. Pink
Attorneys for Plaintiff Hyper Ice, Inc.
17
18
19
20
21
22
23
24
25
26
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
13
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1 Filed 01/17/20 Page 14 of 14 Page ID #:14

1 DEMAND FOR JURY TRIAL

2 Pursuant to Fed. R. Civ. Pro. Rule 38, Plaintiff hereby demands a trial by jury on all
issues set forth herein that are properly triable to a jury.
3
4
5
DATED: January 16, 2020 LEWIS BRISBOIS BISGAARD & SMITH llp
6
7 By: /s/ Jonathan S. Pink
8 Jonathan S. Pink

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

LEWIS 28
BRISBOIS 4846-0753-8864.1
14
BISGAARD ORIGINAL COMPLAINT FOR PATENT INFRINGEMENT, FEDERAL TRADE DRESS INFRINGEMENT
& SMITH LLP AND FEDERAL UNFAIR COMPETITION
ATTORNEYS AT LAW
Case 8:20-cv-00115 Document 1-1 Filed 01/17/20 Page 1 of 7 Page ID #:15

EXHIBIT 1
Case 8:20-cv-00115 Document 1-1 Filed 01/17/20 Page 2 of 7 Page ID #:16
Case 8:20-cv-00115 Document 1-1 Filed 01/17/20 Page 3 of 7 Page ID #:17
Case 8:20-cv-00115 Document 1-1 Filed 01/17/20 Page 4 of 7 Page ID #:18
Case 8:20-cv-00115 Document 1-1 Filed 01/17/20 Page 5 of 7 Page ID #:19
Case 8:20-cv-00115 Document 1-1 Filed 01/17/20 Page 6 of 7 Page ID #:20
Case 8:20-cv-00115 Document 1-1 Filed 01/17/20 Page 7 of 7 Page ID #:21
Case 8:20-cv-00115 Document 1-2 Filed 01/17/20 Page 1 of 29 Page ID #:22

EXHIBIT 2
1/16/2020 70% OFF
Case 8:20-cv-00115 ONLY TODAY1-2
Document - Multifunctional Massage GunPage
Filed 01/17/20 Helps Relieve
2 of Muscle – Hypervolt
29 Page ID #:23

Hypervolt  s  

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29 Page ID #:24

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29 Page ID #:25

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29 Page ID #:26

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29 Page ID #:27

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29 Page ID #:28

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29 Page ID #:29

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29 Page ID #:30

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Hypervolt
ID #:31

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Hypervolt
ID #:32

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ID #:33

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Hypervolt
ID #:34

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1-2 Massage GunPage
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Hypervolt
ID #:35

70% OFF ONLY TODAY - Multifunctional Massage


Gun Helps Relieve Muscle Soreness and Stiffness
 (36)

$399.99 $129.90

Color

Silver carbon fiber Light blue Red Ye l l o w Black

Plug type

US EU

Quantity  1 

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15 ofMuscle
29 –Page
Hypervolt
ID #:36

Add to Cart

🎉3th anniversary celebration, Last Day Promotion!!🎉

🔥We are going to sell out 100 items at the lowest price at $129.90
🔥Later on, the rate will be reset to its original price at $399.99
1. Are you suffering from muscle pain or joint soreness?
2. Need a small and convenient device to combat muscle soreness and discomfort?
3. Want to enjoy relaxing and stimulating deep tissue massages at home?

This personal handheld massager gun is ready for you.

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Hypervolt
ID #:37

A b o u t t h e p ro d u c t

Adjustable Intensity – This neck massager pad has 3 speed strength levels, which allow you
to get the right and appropriate amount of pressure to relieve your muscle pain.

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17 ofMuscle
29 –Page
Hypervolt
ID #:38

Relieves Muscle Soreness – Helps relieve muscle soreness and stiffness with 4
interchangeable head attachments. Promotes circulation and Improves range of motion and
helps accelerate warmup and recovery.

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Hypervolt
ID #:39

Quietest Massage Tool - Using Unique Quiet Glide technology with a high-torque motor
and three adjustable speed settings delivering up to 3, 200 percussions per minute.

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Hypervolt
ID #:40

Rechargeable Battery – Rechargeable lithium-ion battery (Up to 4 hours of use per charge).
Lighweight - Lightweight (2.5 lbs), Ergonomic and easy-to-use for self-myofascial release.

P ro d u c t D e s c r i p t i o n

Limitless Uses - This massager tool is not only great for relieving chronic sore muscles,
working out a difficult muscle knot, and workout recovery, but also to relieve achy legs, back,
neck and shoulder from sitting for extended periods while at work or traveling. Many customers
love it to loosen up the muscles for a deeper stretch before doing yoga or pilates.

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1-2 Massage GunPage
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20 ofMuscle
29 –Page
Hypervolt
ID #:41

Powerful high- torque brushless motor, Featuring High Frequency, High Speed.

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Hypervolt
ID #:42

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1-2 Massage GunPage
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Hypervolt
ID #:43

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1-2 Massage GunPage
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Hypervolt
ID #:44

Certification authority:

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1-2 Massage GunPage
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Hypervolt
ID #:45

3 year warranty
If you are not satisfied within 90 days, you can return it for free.
Handling time>> Ship within 24 hours after payment.
Returns>> Fast refund,100% Money Back Guarantee
100% Satisfaction Guaranteed

Package Includes:

1*Massager gun
1*Flat head attachment
1*Spiral head attachment
1*Globule head attachment
1*Forked head attachment
1*User's Manual
1*Charger
1*Portable Carry Case

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Hypervolt
ID #:46

Specifications:

Charging Voltage: 110-220 V


Working Time: 4-5 Hours
Charging Time: 2-3 Hours
Battery Capacity: 2500 mAh
Vibration Frequency: 1300-4600 rpm/min

We truly offer the most stunning, trendy highest-qualityproducts in the world.


We will do WHATEVER it takes with outstanding customer service support to assist
everyone as we highly value our customer satisfaction with absolute ZERO risk.
We make sure that every customer is 100% satisfied in every aspect!
If you are not satisfied with receiving the goods, you can apply for a refund.
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1-2 Massage GunPage
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26 ofMuscle
29 –Page
Hypervolt
ID #:47
You can pay with PayPal, which will protect your money.If you don't have a PayPal
account, we accept all credit cards: just select 'PayPal' and click the "Pay with Debit or
Credit Card"

__________________________________________________________

Tracking Orders >> Allow for up to 24 hours after the shipment confirmation email has been
sent to be able to track the package.
International Shipping >> We offer worldwide shiping
Payment >> PayPal is welcomed here.If you don't have a PayPal account, we accept all credit
cards: just select 'PayPal' and click the "Pay with Debit or Credit Card"

Return Policy >> If you don't have a positive experience for ANY reason, We offers a 90 days
guaranteed return policy that is intended to offer you peace of mind when shopping. We want to
do our best to make each purchase a perfect one for you, however if either of these conditions
exist, you can return the item to us within 90 days.

How to Return >> Complete the return form on the packing slip and include in the return
shipment. The cost of return shipping is the responsibility of the purchaser. For your
convenience, a pre-printed address label has been provided on the front of the packing slip.

Get Money Back >> Within 90 days, with the packing slip or receipt and tags attached,
receive a full refund in the original form of payment online.

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Frequently Bought Together

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1-2 Massage GunPage
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29 –Page
Hypervolt
ID #:48


+ +
+ +
+ +


Total price: $309.67 $928.56

Add selected to cart

This item: 70% OFF ONLY TODAY - Multif unct ional Mas s age Gun Helps R elieve
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 36 Reviews Write a review

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Document - Multifunctional
1-2 Massage GunPage
Filed 01/17/20 Helps Relieve
28 ofMuscle
29 –Page
Hypervolt
ID #:49

Jason M.  Nicholes H.
8/22/2019 7/12/2019

 
Everyone at my I am a personal
private gym loves trainer and run my
it amd is helping own business and
people feel better use this unit on my
already. Great clients as well as
product and myself. Lightweight
sounds very quiet 2.5 lbs great
compared to other workmanship, and
massage guns the best battery life
with similar
Item type:
products. If your
carbon fiber / US
looking to buy a
percussion
massager only go
with this product.

Elina S. 
1/11/2020


have exercise with
it worked very well
M***n
Item type:
3/25/2019
Silver / US

Very very very very
long sent and also Mark C. 
long went, but the 1/9/2020
goods are

excellent
Really beneficial in
our therapy suite
of my chiropractic
antonio e.  office helping
12/26/2019
reduce pain,
muscle spasm,
 and joint stiffness.
Helps me with Item type:
recovery after Silver / US
Crossift and weight Robert F. 
lifting
12/10/2019
Item type:
carbon fiber / US 

Michael C.  Machine is great,


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1-2 Massage GunPage
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29 ofMuscle
29 –Page
Hypervolt
ID #:50
11/9/2019
everything I
expected. Price
 was even better!
It's Great, the whole Item type:
family loves it. Yellow / US
Relaxes me after a
days work. Cody R.
Item type: 11/8/2019
carbon fiber / US


Martin I.  Great
10/12/2019

 Judith K. 
My two boys love 10/12/2019
the easy operation

and the
performance of It really helps in
this machine muscle recovery.

Item type: Item type:


carbon fiber / US carbon fiber / US

Show more reviews

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Case 8:20-cv-00115 Document 1-3 Filed 01/17/20 Page 1 of 7 Page ID #:51

EXHIBIT 3
Case 8:20-cv-00115 Document 1-3 Filed 01/17/20 Page 2 of 7 Page ID #:52

Jonathan S. Pink
633 West 5th Street, Suite 4000
Los Angeles, California 90071
Jonathan.Pink@lewisbrisbois.com
Direct: 213.580.6312

October 28, 2019 File No. 34647-04

VIA EMAIL ONLY

YourNiceDay.com
Attn: Owner or General Counsel
Email: legal666legal@gmail.com
Info@YourNiceDay.com

Re: Cease and Desist: YourNiceDay.com Massage Gun; Unauthorized Use of HyperIce,
Inc.’s Intellectual Property

Dear Sir or Madam:

This office is legal counsel to Hyperice, Inc. Hyperice is an internationally known purveyor of
sports-injury-recovery devices. These devices, used by top athletes, combine state of the art
technology with sleek and appealing designs. One product that fits this description is the
“Hypervolt,” a cordless, state-of-the-art vibration massage device that helps relax sore and
stiff muscles to improve mobility.

An image of that product is here:

• • • • • • • • •
• • • • • • •
• • • • • • •
Case 8:20-cv-00115 Document 1-3 Filed 01/17/20 Page 3 of 7 Page ID #:53
YourNiceDay.com
Attn: Owner or General Counsel
legal666legal@gmail.com
Info@YourNiceDay.com
October 28, 2019
Page 2

Hyperice owns federally registered trademarks in the words HYPERICE and HYPERVOLT.
Pursuant to 15 U.S.C. Section 1114 et. sec., Hyperice also owns and is entitled to protection in
Hypervolt’s “trade dress.” (See U.S. Patent and Trademark Office Serial Number 88357560).

Trade dress protection applies to “a combination of any elements in which a product is


presented to a buyer,” including the shape and design of a product. J.Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition § 8:1, at 8-3 (4th ed. 2008). Courts have
interpreted this to mean that the manner in which goods are presented to perspective
purchasers, or the physical features of the product itself, may serve as an indication of source
so as to come within the purview of federal trademark law as set forth in 15 U.S.C. Section
1125 et. sec. (Section 43(a) of the federal Lanham Act). See, El-Com Hardware, Inc. v. Fireman’s
Fund Ins. Co. (2001) 92 Cal.App.4th 205, 213-215. Trade dress has also been defined as the
“total image of a product and may include features such as shape, color or color combinations,
. . . but the design of the product itself may also constitute protectable trade dress.” See, Clicks
Billiards, Inc. v. Sixshooters, Inc. 251 F.3d 1252, 1257 (9th Cir. 2001); Poof Toy Products, Inc. v.
USF&G Co. (E.D. Mich. 1995) 891 F.Supp. 1228, 1232.1

Trade dress protection belongs to those who first use it in connection with specified goods or
services. Levi Strauss & Co. v. BlueBell, Inc., 778 F.2d 1352, 1363 (9th Cir. 1985). Registration
is not a prerequisite; a senior user may prohibit a junior user’s adoption of the same or similar
trade dress where such use is likely to cause consumer confusion. Dawn Donut Co. v. Hart’s
Food Stores, Inc. 267 F.2d 358 (2d Cir. 1959);Western Pub. Co. v. Rose Art Indus. Inc., 910 F.2d
57, 59 (2d Cir. 1990); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200,
205 (2d Cir. 1979) (“The public’s belief that the mark’s owner sponsored or otherwise
approved the use of the [trade dress] satisfies the confusion requirement.”). To the extent
goods serve the same purpose or fall within the same general class, the use of similar

As with a company’s trademark, its trade dress is useful as a source identifier, allowing
consumers to identify and distinguish a company’s goods from those sold by others. See In re
Chemical Dynamics, supra; Aloha Pacific, Inc. v. California Ins. Guar. Assn. (2000) 79 Cal.App.4th
297, 318-320 (holding that trade dress is a species of trademark). To this end, it puts the
purchasing public on notice that goods bearing the relevant trade dress originated from the
same source and therefore is of equal quality. See generally Retail Servs., Inc. v. Freebies
Publ'g, 364 F.3d 535, 538 (4th Cir. 2004). Thus, a company’s trade dress not only protects the
goodwill represented by particular marks, but also allows consumers readily to recognize
products and their source, preventing consumer confusion between products and between
sources of products. In re Chem. Dynamics, supra, at 839 F.2d at 1571; OBX-Stock, Inc. v. Bicast,
Inc., 558 F.3d 334, 339 (4th Cir.2009). Notably, the products in question need not be identical.
CAE, Inc. v. Clean Air Eng'g, Inc., 267 F.3d 660, 679 (7th Cir.2001).
Case 8:20-cv-00115 Document 1-3 Filed 01/17/20 Page 4 of 7 Page ID #:54
YourNiceDay.com
Attn: Owner or General Counsel
legal666legal@gmail.com
Info@YourNiceDay.com
October 28, 2019
Page 3

designations [e.g. their respective protected configuration]is more likely to cause confusion."
Lang v. Ret. Living Pub. Co., 949 F.2d 576, 582 (2d Cir.1991); Levi Strauss & Co. v. BlueBell,
supra.

Here, it has come to our attention that YourNiceDay.com is manufacturing, selling and/or
distributing the “Multifunctional Massage Gun” (see
https://YourNiceDay.com/products/multifunctional-massage-gun-helps-relieve-muscle-
soreness-and-stiffness?variant=28447780208724), a product that so closely mimics
Hypervolt’s protected trade dress that it is an illegal counterfeit likely to cause consumer
confusion as to source, approval and/or sponsorship of the same. The photographs below
make this clear.

Hypervolt Multifunctional Massage Gun

But for the fact that your massage gun has been doctored to remove the Hyperice trademark,
it is virtually identical to the Hypervolt, with the same: (i) overall shape and design; (ii)
straight edged oval shape near the handle with an indented circle; (iv) line across the handle;
and (iii) four horizontal lines on the upper cylinder.

Moreover, evidence of YourNiceDay.com’s willful infringement (which will be used to seek


additional monetary damages) may be found in its use on its website of the image shown
below:
Case 8:20-cv-00115 Document 1-3 Filed 01/17/20 Page 5 of 7 Page ID #:55
YourNiceDay.com
Attn: Owner or General Counsel
legal666legal@gmail.com
Info@YourNiceDay.com
October 28, 2019
Page 4

These images clearly show Hyperice’s double v design mark on the product.

1. Patent Infringement

In addition to the foregoing rights, Hyperice owns a patent in the Hypervolt (U.S. Patent No.
D855,822). As a direct counterfeit of the Hypervolt, your sale of that product infringes the
‘822 patent in every respect as evidenced by the comparison, below:

US D855,822 Shape of Infringing Product (without TM)


Case 8:20-cv-00115 Document 1-3 Filed 01/17/20 Page 6 of 7 Page ID #:56
YourNiceDay.com
Attn: Owner or General Counsel
legal666legal@gmail.com
Info@YourNiceDay.com
October 28, 2019
Page 5

Liability for patent infringement attaches immediately. See 35 U.S.C. §289. Under Section
289, a design patent infringer is “liable to the owner to the extent of his total profit,” that is, all
the profit made from the manufacture or sale “of the article of manufacture to which the
design or colorable imitation has been applied.” The term “article of manufacture” covers
both a product sold and protected component parts thereof. Thus, a component of an
infringing product may give rise to an infringement claim despite the fact that consumers
cannot buy it separately from the infringing article. Under the Patent Act, the patentee may
recover its profits even where the accused infringer was unaware of the patented design, and
regardless of whether the infringement was willful. Id. To this end, even if YourNiceDay.com
did not know its sale of a counterfeit “Hypervolt” infringed Hyperice’s valuable intellectual
property rights (as if this were possible), YourNiceDay.com will still be liable for damages
arising out of that infringement.

2. Pending Legal Action; Demand that You Cease and Desist

Based on the foregoing, your advertising, selling and offering for sale a direct knock-off of the
Hypervolt should be sufficient for Hyperice to assert jurisdiction over you in a U.S. federal
court where you may face substantial liability.

Indeed, if Hyperice is forced to file such a suit, it will seek injunctive relief, an award of treble
damages, a disgorgement of your profits and a recovery of its legal fees and costs. It may also
seek a recovery of damages for secondary infringement from your hosting site, Shopify.com.
By copy of this letter, we place Shopify.com on notice of the same.

Hyperice intends to take such legal action within the next ten business days unless you, and all
those working on your behalf:

Immediately cease and permanently desist the sale, marketing,


advertising, production, manufacturing and/or distribution of any
product whatsoever whose configuration resembles, is confusingly
similar to, or infringes Hyperice’s intellectual property rights in the
HYPERVOLT;

Provide Hyperice with all records, financial and otherwise, arising


out of or related to your marketing, manufacturing, fabrication,
purchasing, sales, shipments of YourNiceDay.com’s Deep Muscle
Massager , commencing with the date you first engaged in the same
in any market and in any media throughout the world;
Case 8:20-cv-00115 Document 1-3 Filed 01/17/20 Page 7 of 7 Page ID #:57
YourNiceDay.com
Attn: Owner or General Counsel
legal666legal@gmail.com
Info@YourNiceDay.com
October 28, 2019
Page 6

Reimburse Hyperice for its legal fees and costs in pursuing this
matter; and

Execute a Settlement Agreement which includes, inter alia, the


foregoing and your consent to exclusive jurisdiction, venue,
injunctive relief, and a recovery of attorney’s fees for any violation
thereof.

While Hyperice would prefer to resolve this matter without resorting to litigation, it may file
suit absent your written agreement to comply with the foregoing by the close of business on
Friday, November 1, 2019. To this end, we ask that you countersign this letter where
indicated below and return it to Rohini Roy, Esq. on or before that date.

Very truly yours,

Jonathan S. Pink

JSP:RR

Having read and understood the foregoing, the undersigned affirms and covenants on behalf of
YourNiceDay.com and all those working on its behalf (including, without limitation, its owners,
operators, partners and affiliates) that it will immediately cease and desist all activities
identified, and otherwise comply with the requirements set forth in this letter. Furthermore,
YourNiceDay.com will comply with such further demands that Hyperice may make arising out of
or relating to Hyperice’s efforts to stop the infringement that is the subject matter set forth in
this correspondence.

YourNiceDay.com

By: _________________________________ Date: October ______, 2019

Its: _________________________________

Cc: legal@shopify.com
Jim Huether
Case 8:20-cv-00115 Document 1-4 Filed 01/17/20 Page 1 of 7 Page ID #:58

EXHIBIT 4
Case 8:20-cv-00115 Document 1-4 Filed 01/17/20 Page 2 of 7 Page ID #:59

Jonathan S. Pink
633 West 5th Street, Suite 4000
Los Angeles, California 90071
Jonathan.Pink@lewisbrisbois.com
Direct: 213.580.6312

November 22, 2019 File No. 34647-04

VIA EMAIL ONLY

YourNiceDay.com
Attn: Owner or General Counsel
Email:

Re: Cease and Desist: YourNiceDay.com Massage Gun; Unauthorized Use of HyperIce,
Inc.’s Intellectual Property

Dear Sir or Madam:

This office is legal counsel to Hyperice, Inc. Hyperice is an internationally known purveyor of
sports-injury-recovery devices. These devices, used by top athletes, combine state of the art
technology with sleek and appealing designs. One product that fits this description is the
“Hypervolt,” a cordless, state-of-the-art vibration massage device that helps relax sore and
stiff muscles to improve mobility.

An image of that product is here:

• • • • • • • • •
• • • • • • •
• • • • • • •
Case 8:20-cv-00115 Document 1-4 Filed 01/17/20 Page 3 of 7 Page ID #:60
YourNiceDay.com
Attn: Owner or General Counsel
November 22, 2019
Page 2

Hyperice owns federally registered trademarks in the words HYPERICE and HYPERVOLT and
its double v design mark. (US Registration Nos. 5489979, 5498668, and 5100331,
respectively).Pursuant to 15 U.S.C. Section 1114 et. sec., Hyperice also owns and is entitled to
protection in Hypervolt’s “trade dress.” (See U.S. Patent and Trademark Office Serial Number
88357560).

Trade dress protection applies to “a combination of any elements in which a product is


presented to a buyer,” including the shape and design of a product. J.Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition § 8:1, at 8-3 (4th ed. 2008). Courts have
interpreted this to mean that the manner in which goods are presented to perspective
purchasers, or the physical features of the product itself, may serve as an indication of source
so as to come within the purview of federal trademark law as set forth in 15 U.S.C. Section
1125 et. sec. (Section 43(a) of the federal Lanham Act). See, El-Com Hardware, Inc. v. Fireman’s
Fund Ins. Co. (2001) 92 Cal.App.4th 205, 213-215. Trade dress has also been defined as the
“total image of a product and may include features such as shape, color or color combinations,
. . . but the design of the product itself may also constitute protectable trade dress.” See, Clicks
Billiards, Inc. v. Sixshooters, Inc. 251 F.3d 1252, 1257 (9th Cir. 2001); Poof Toy Products, Inc. v.
USF&G Co. (E.D. Mich. 1995) 891 F.Supp. 1228, 1232.1

Trade dress protection belongs to those who first use it in connection with specified goods or
services. Levi Strauss & Co. v. BlueBell, Inc., 778 F.2d 1352, 1363 (9th Cir. 1985). Registration
is not a prerequisite; a senior user may prohibit a junior user’s adoption of the same or similar
trade dress where such use is likely to cause consumer confusion. Dawn Donut Co. v. Hart’s
Food Stores, Inc. 267 F.2d 358 (2d Cir. 1959);Western Pub. Co. v. Rose Art Indus. Inc., 910 F.2d
57, 59 (2d Cir. 1990); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200,
205 (2d Cir. 1979) (“The public’s belief that the mark’s owner sponsored or otherwise
approved the use of the [trade dress] satisfies the confusion requirement.”). To the extent
goods serve the same purpose or fall within the same general class, the use of similar

As with a company’s trademark, its trade dress is useful as a source identifier, allowing
consumers to identify and distinguish a company’s goods from those sold by others. See In re
Chemical Dynamics, supra; Aloha Pacific, Inc. v. California Ins. Guar. Assn. (2000) 79 Cal.App.4th
297, 318-320 (holding that trade dress is a species of trademark). To this end, it puts the
purchasing public on notice that goods bearing the relevant trade dress originated from the
same source and therefore is of equal quality. See generally Retail Servs., Inc. v. Freebies
Publ'g, 364 F.3d 535, 538 (4th Cir. 2004). Thus, a company’s trade dress not only protects the
goodwill represented by particular marks, but also allows consumers readily to recognize
products and their source, preventing consumer confusion between products and between
sources of products. In re Chem. Dynamics, supra, at 839 F.2d at 1571; OBX-Stock, Inc. v. Bicast,
Inc., 558 F.3d 334, 339 (4th Cir.2009). Notably, the products in question need not be identical.
CAE, Inc. v. Clean Air Eng'g, Inc., 267 F.3d 660, 679 (7th Cir.2001).
Case 8:20-cv-00115 Document 1-4 Filed 01/17/20 Page 4 of 7 Page ID #:61
YourNiceDay.com
Attn: Owner or General Counsel
November 22, 2019
Page 3

designations [e.g. their respective protected configuration]is more likely to cause confusion."
Lang v. Ret. Living Pub. Co., 949 F.2d 576, 582 (2d Cir.1991); Levi Strauss & Co. v. BlueBell,
supra.

Here, it has come to our attention that YourNiceDay.com is manufacturing, selling and/or
distributing the “Multifunctional Massage Gun” (see
https://yourniceday.com/products/multifunctional-massage-gun-helps-relieve-muscle-
soreness-and-stiffness-70-off-only-today?_pos=3&_sid=7e54e86c0&_ss=r), a product that so
closely mimics Hypervolt’s protected trade dress that it is an illegal counterfeit likely to cause
consumer confusion as to source, approval and/or sponsorship of the same. The photographs
below make this clear.

Hypervolt Multifunctional Massage Gun

But for the fact that your massage gun has been doctored to remove the Hyperice trademark,
it is virtually identical to the Hypervolt, with the same: (i) overall shape and design; (ii)
straight edged oval shape near the handle with an indented circle; (iv) line across the handle;
and (iii) four horizontal lines on the upper cylinder.

Moreover, evidence of YourNiceDay.com’s willful infringement (which will be used to seek


additional monetary damages) may be found in its use on its website of the image shown
below:
Case 8:20-cv-00115 Document 1-4 Filed 01/17/20 Page 5 of 7 Page ID #:62
YourNiceDay.com
Attn: Owner or General Counsel
November 22, 2019
Page 4

This image clearly shows Hyperice’s double v design mark on the product.

1. Patent Infringement

In addition to the foregoing rights, Hyperice owns a patent in the Hypervolt (U.S. Patent No.
D855,822). As a direct counterfeit of the Hypervolt, your sale of that product infringes the
‘822 patent in every respect as evidenced by the comparison, below:

US D855,822 Shape of Infringing Product (without TM)

Liability for patent infringement attaches immediately. See 35 U.S.C. §289. Under Section
289, a design patent infringer is “liable to the owner to the extent of his total profit,” that is, all
the profit made from the manufacture or sale “of the article of manufacture to which the
Case 8:20-cv-00115 Document 1-4 Filed 01/17/20 Page 6 of 7 Page ID #:63
YourNiceDay.com
Attn: Owner or General Counsel
November 22, 2019
Page 5

design or colorable imitation has been applied.” The term “article of manufacture” covers
both a product sold and protected component parts thereof. Thus, a component of an
infringing product may give rise to an infringement claim despite the fact that consumers
cannot buy it separately from the infringing article. Under the Patent Act, the patentee may
recover its profits even where the accused infringer was unaware of the patented design, and
regardless of whether the infringement was willful. Id. To this end, even if YourNiceDay.com
did not know its sale of a counterfeit “Hypervolt” infringed Hyperice’s valuable intellectual
property rights (as if this were possible), YourNiceDay.com will still be liable for damages
arising out of that infringement.

2. Pending Legal Action; Demand that You Cease and Desist

Based on the foregoing, your advertising, selling and offering for sale a direct knock-off of the
Hypervolt should be sufficient for Hyperice to assert jurisdiction over you in a U.S. federal
court where you may face substantial liability.

Indeed, if Hyperice is forced to file such a suit, it will seek injunctive relief, an award of treble
damages, a disgorgement of your profits and a recovery of its legal fees and costs. It may also
seek a recovery of damages for secondary infringement from your hosting site, Shopify.com.
By copy of this letter, we place Shopify.com on notice of the same.

Hyperice intends to take such legal action within the next ten business days unless you, and all
those working on your behalf:

Immediately cease and permanently desist the sale, marketing,


advertising, production, manufacturing and/or distribution of any
product whatsoever whose configuration resembles, is confusingly
similar to, or infringes Hyperice’s intellectual property rights in the
HYPERVOLT;

Provide Hyperice with all records, financial and otherwise, arising


out of or related to your marketing, manufacturing, fabrication,
purchasing, sales, shipments of YourNiceDay.com’s infringing
product , commencing with the date you first engaged in the same in
any market and in any media throughout the world;

Reimburse Hyperice for its legal fees and costs in pursuing this
matter; and

Execute a Settlement Agreement which includes, inter alia, the


foregoing and your consent to exclusive jurisdiction, venue,
Case 8:20-cv-00115 Document 1-4 Filed 01/17/20 Page 7 of 7 Page ID #:64
YourNiceDay.com
Attn: Owner or General Counsel
November 22, 2019
Page 6

injunctive relief, and a recovery of attorney’s fees for any violation


thereof.

While Hyperice would prefer to resolve this matter without resorting to litigation, it may file
suit absent your written agreement to comply with the foregoing by the close of business on
Friday, November 29, 2019. To this end, we ask that you countersign this letter where
indicated below and return it to Rohini Roy, Esq. on or before that date.

Very truly yours,

Jonathan S. Pink

JSP:RR

Having read and understood the foregoing, the undersigned affirms and covenants on behalf of
YourNiceDay.com and all those working on its behalf (including, without limitation, its owners,
operators, partners and affiliates) that it will immediately cease and desist all activities
identified, and otherwise comply with the requirements set forth in this letter. Furthermore,
YourNiceDay.com will comply with such further demands that Hyperice may make arising out of
or relating to Hyperice’s efforts to stop the infringement that is the subject matter set forth in
this correspondence.

YourNiceDay.com

By: _________________________________ Date: November ______, 2019

Its: _________________________________

Cc: legal@shopify.com
Jim Huether
Jonathan S. Pink
Case 8:20-cv-00115 Document 1-5 Filed 01/17/20 Page 1 of 7 Page ID #:65

EXHIBIT 5
Case 8:20-cv-00115 Document 1-5 Filed 01/17/20 Page 2 of 7 Page ID #:66

Jonathan S. Pink
633 West 5th Street, Suite 4000
Los Angeles, California 90071
Jonathan.Pink@lewisbrisbois.com
Direct: 213.580.6312

October 28, 2019 File No. 34647-04

VIA ELECTRONIC MAIL


Shopify Inc.
Attn: Shopify Legal Operations
150 Elgin Street, 8th Floor
Ottawa, Ontario K2P 1L4
Email: legal@shopify.com

Re: Notice of Trademark Infringement with respect to infringement by


www.YourNiceDay.com

Dear Sir or Madam:

This office is legal counsel to Hyper Ice, Inc. (“Hyperice”). Hyperice is an internationally
known purveyor of sports-injury-recovery devices. These devices, used by top athletes,
combine state of the art technology with sleek and appealing designs. One product that fits
this description is the “Hypervolt,” a cordless, state-of-the-art vibration massage device that
helps relax sore and stiff muscles to improve mobility.

An image of that product is here:

It has come to our attention that Shopify is currently providing domain name service for
hosting, transmitting, permitting access to, and placing content on a website located at the
• • • • • • • • •
• • • • • • •
• • • • • • •
Case 8:20-cv-00115 Document 1-5 Filed 01/17/20 Page 3 of 7 Page ID #:67
Shopify Inc.
Attn: Shopify Legal Operations
October 28, 2019
Page 2

URL www.YourNiceDay.com, which constitutes an unauthorized use of the trademarks


belonging to Hyperice and, therefore, subjects you and any other operators of the website to
claims for trademark infringement under the Lanham Act and state trademark laws.
Accordingly, this correspondence constitutes a “take-down” notice pursuant to your own
trademark-infringement notice procedures. Please act expeditiously to remove or disable
access to the material listed below.

1. Contact Information

Jonathan S. Pink of
LEWIS BRISBOIS BISGAARD & SMITH LLP
633 West 5th Street, Suite 4000
Los Angeles, California 90071
Jonathan.Pink@lewisbrisbois.com
Direct: 213.580.6312

2. Hyperice’s Rights and the Infringing Content on YourNiceDay.com

a. Hyperice’s Trademark and Trade Dress Rights

Hyperice owns federally registered trademarks in the words HYPERICE and HYPERVOLT. (US
Registration Nos. 5489979, 5498668, and 5100331, respectively). Pursuant to 15 U.S.C.
Section 1114 et. sec., Hyperice also owns, and is entitled to protection in, Hypervolt’s trade
dress, e.g. its product configuration.

Trade dress protection applies to “a combination of any elements in which a product is


presented to a buyer,” including the shape and design of a product. J.Thomas McCarthy,
McCarthy on Trademarks and Unfair Competition § 8:1, at 8-3 (4th ed. 2008). Courts have
interpreted this to mean that the manner in which goods are presented to perspective
purchasers, or the physical features of the product itself, may serve as an indication of source
so as to come within the purview of federal trademark law as set forth in 15 U.S.C. Section
1125 et. sec. (Section 43(a) of the federal Lanham Act). See, El-Com Hardware, Inc. v. Fireman’s
Fund Ins. Co. (2001) 92 Cal.App.4th 205, 213-215. Trade dress has also been defined as the
“total image of a product and may include features such as shape, color or color combinations,
. . . but the design of the product itself may also constitute protectible trade dress.” See, Clicks
Billiards, Inc. v. Sixshooters, Inc. 251 F.3d 1252, 1257 (9th Cir. 2001); Poof Toy Products, Inc. v.
USF&G Co. (E.D. Mich. 1995) 891 F.Supp. 1228, 1232.1

As with a company’s trademark, its trade dress is useful as a source identifier, allowing
consumers to identify and distinguish a company’s goods from those sold by others. See In re
Chemical Dynamics, supra; Aloha Pacific, Inc. v. California Ins. Guar. Assn. (2000) 79 Cal.App.4th
Case 8:20-cv-00115 Document 1-5 Filed 01/17/20 Page 4 of 7 Page ID #:68
Shopify Inc.
Attn: Shopify Legal Operations
October 28, 2019
Page 3

Trade dress protection belongs to those who first use it in connection with specified goods or
services. Levi Strauss & Co. v. BlueBell, Inc., 778 F.2d 1352, 1363 (9th Cir. 1985). Registration
is not a prerequisite; a senior user may prohibit a junior user’s adoption of the same or similar
trade dress where such use is likely to cause consumer confusion. Dawn Donut Co. v. Hart’s
Food Stores, Inc. 267 F.2d 358 (2d Cir. 1959);Western Pub. Co. v. Rose Art Indus. Inc., 910 F.2d
57, 59 (2d Cir. 1990); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200,
205 (2d Cir. 1979) (“The public’s belief that the mark’s owner sponsored or otherwise
approved the use of the [trade dress] satisfies the confusion requirement.”). To the extent
goods serve the same purpose or fall within the same general class, the use of similar
designations [e.g. their respective protected configuration]is more likely to cause confusion."
Lang v. Ret. Living Pub. Co., 949 F.2d 576, 582 (2d Cir.1991); Levi Strauss & Co. v. BlueBell,
supra.

Here, it has come to our attention that YourNiceDay.com is manufacturing, selling and/or
distributing the “Hypergun,” a product that so closely mimics Hypervolt’s trademarks and
protected trade dress that it is an illegal counterfeit that is likely to cause consumer confusion
as to source, approval and/or sponsorship of the same. The photographs below make this
clear.

297, 318-320 (holding that trade dress is a species of trademark). To this end, it puts the
purchasing public on notice that goods bearing the relevant trade dress originated from the
same source and therefore is of equal quality. See generally Retail Servs., Inc. v. Freebies Publ'g,
364 F.3d 535, 538 (4th Cir. 2004). Thus, a company’s trade dress not only protects the
goodwill represented by particular marks, but also allows consumers readily to recognize
products and their source, preventing consumer confusion between products and between
sources of products. In re Chem. Dynamics, supra, at 839 F.2d at 1571; OBX-Stock, Inc. v. Bicast,
Inc., 558 F.3d 334, 339 (4th Cir.2009). Notably, the products in question need not be identical.
CAE, Inc. v. Clean Air Eng'g, Inc., 267 F.3d 660, 679 (7th Cir.2001).
Case 8:20-cv-00115 Document 1-5 Filed 01/17/20 Page 5 of 7 Page ID #:69
Shopify Inc.
Attn: Shopify Legal Operations
October 28, 2019
Page 4

Hypervolt YourNiceDay.com’s Multifunctional Massage Gun2

But for the fact that the product on the right has been doctored to remove the Hyperice
trademark, these products are identical. Both products contain the same: (i) color
configuration; (ii) circular center post; (iii) straight edged oval shape near the handle with an
indented circle; (iv) line across the handle; and (v) four horizontal lines on the upper cylinder.

Moreover, evidence of YourNiceDay.com’s willful infringement (which will be used to seek


additional monetary damages) may be found in its use on its website of the image shown
below:

These images clearly show Hyperice’s double v design mark on the product.

https://YourNiceDay.com/products/multifunctional-massage-gun-helps-relieve-
muscle-soreness-and-stiffness?variant=28447780208724
Case 8:20-cv-00115 Document 1-5 Filed 01/17/20 Page 6 of 7 Page ID #:70
Shopify Inc.
Attn: Shopify Legal Operations
October 28, 2019
Page 5

As your legal counsel will undoubtedly explain to you upon learning of this correspondence,
such conduct is illegal under state and federal law, and may lead to substantial and costly legal
consequences for trademark infringement, trade dress infringement, reverse passing off, false
advertising and unfair competition.

b. Patent Infringement

In addition to trademark and trade dress rights, Hyperice owns a patent in the Hypervolt (U.S.
Patent No. D855,822). YourNiceDay.com’s product, being a direct knock-off of the Hypervolt,
infringes the ‘822 patent in every respect. To the extent it is necessary, a comparison
evidencing this fact is set forth below:

US D855,822 Shape of Infringing Product (without TM)

Liability for patent infringement attaches immediately. See 35 U.S.C. §289. Under Section 289,
a design patent infringer is “liable to the owner to the extent of his total profit,” that is, all the
profit made from the manufacture or sale “of the article of manufacture to which the design or
colorable imitation has been applied.” The term “article of manufacture” covers both a
product sold and protected component parts thereof. Thus, a component of an infringing
product may give rise to an infringement claim despite the fact that consumers cannot buy it
separately from the infringing article. Under the Patent Act, the patentee may recover its
profits even where the accused infringer was unaware of the patented design, and regardless
of whether the infringement was willful. Id. To this end, even if YourNiceDay.com did not
know its sale of a counterfeit “Hypervolt” infringed Hyperice’s valuable intellectual property
rights (as if this were possible), YourNiceDay.com will still be liable for damages arising out of
that infringement.
Case 8:20-cv-00115 Document 1-5 Filed 01/17/20 Page 7 of 7 Page ID #:71
Shopify Inc.
Attn: Shopify Legal Operations
October 28, 2019
Page 6

To this end, we respectfully request and hereby demand that Shopify immediately remove
or disable access to the website, www.YourNiceDay.com and to all images on the same
website. We further request and demand that Shopify likewise cease all conduct that
substantially assists www.YourNiceDay.com, its owners and operators, in their promotion,
sale and/or distribution of the infringing Hypervolt products and other violations of
Hyperice’s intellectual property rights. We further request, given the repeated problems of
infringing Hyperice products offered for sale on Shopify, that Shopify screen for the use of
Hyperice’s trademarked material on any other Shopify-hosted websites, and that Shopify
remove or disable access to those sites.

By and through its counsel, Hyperice hereby swears under penalty of perjury: (1) that use of
the trademark, as described above, in the manner Hyperice has complained, is not authorized
by the trademark owner, its agent, or the law; (2) that the information is accurate, and that I
am authorized to act on behalf of the owner of the trademark rights described above; and (3) I
acknowledge that a copy of this infringement notice, including any contact information
provided above, may be provided to the person that posted the content being reported.

Very truly yours,

Jonathan S. Pink

JSP:RR
Case 8:20-cv-00115 Document 1-6 Filed 01/17/20 Page 1 of 4 Page ID #:72

EXHIBIT 6
Case 8:20-cv-00115 Document 1-6 Filed 01/17/20 Page 2 of 4 Page ID #:73

Trademark Infringement Notice

1. Trademark
Trademark Owner: Hyper Ice, Inc.

2. Complainant's Contact Information


First Name: Rohini
Last Name: Roy
Company/Organization: Lewis Brisbois Bisgaard & Smith LLP
Email: Rohini.Roy@lewisbrisbois.com

3. Trademarks
What is the trademark?
HYPERICE and HYPERVOLT, and double v design mark
Country/countries the trademark is registered in: USA
Trademark registration number: US Registration Nos. 5489979 and 5498668 and 5100331
Category of products and/or services covered by the registration:
Sports injury recovery devices

4. Allegedly Infringing Content


Links to the allegedly infringing work:
https://yourniceday.com.co/products/multifunctional-massage-gun-helps-relieve-
muscle-soreness-and-stiffness
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/a_1296x.jpg?v=1569045352
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/61W2b6YkT_L._SL1001_129
6x.jpg?v=1569045352
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/61Mk6DAgeLL._SL1001_129
6x.jpg?v=1569045352
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/c_1296x.jpg?v=1569045352
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/h_1296x.jpg?v=1569045352
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/e_1296x.jpg?v=1569045352
https://cdn.shopify.com/s/files/1/0245/6171/3236/products/61Mk6DAgeLL._SL1001_larg
e.jpg?v=1560587068
https://cdn.shopify.com/s/files/1/0245/6171/3236/products/61W2b6YkT_L._SL1001_larg
Case 8:20-cv-00115 Document 1-6 Filed 01/17/20 Page 3 of 4 Page ID #:74

e.jpg?v=1560587071
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/11130880490_1459392961_
1296x.jpg?v=1569045353
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/11161097163_1459392961_
1296x.jpg?v=1569045353
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/11130877612_1459392961_
1296x.jpg?v=1569045353
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/11099013326_1459392961_
1296x.jpg?v=1569045353
https://cdn.shopify.com/s/files/1/0270/9245/1433/products/11161073826_1459392961_
1296x.jpg?v=1569045353
Description of how the material is infringing:
This office is legal counsel to Hyper Ice, Inc. (“Hyperice”). Hyperice is an internationally
known purveyor of sports-injury-recovery devices. These devices, used by top athletes,
combine state of the art technology with sleek and appealing designs. One product that fits
this description is the “Hypervolt,” a cordless, state-of-the-art vibration massage device that
helps relax sore and stiff muscles to improve mobility. An image of that product can be
found at https://hyperice.com/hypervolt. It has come to our attention that
YourNiceDay.com is manufacturing, selling and/or distributing a massage gun that so closely
mimics Hypervolt’s protected trade dress that it is an illegal counterfeit that is likely to cause
consumer confusion as to source, approval and/or sponsorship of the same. A side by side
comparison shows that, but for the fact that the YourNiceDay product has been doctored to
remove the Hyperice trademark, these products are identical. Both products contain the
same: (i) configuration; (ii) circular center post; (iii) straight edged oval shape near the handle
with an indented circle; and (iv) four horizontal lines on the upper cylinder. In fact, the top
of the page exhibits the HYPERVOLT word mark and some of the images on
YourNiceDay.com exhibits the double v design mark. Such conduct is illegal under California
state and U.S. federal law (see e.g. 15 U.S.C. Section 1125 et. seq.), and may lead to costly
legal consequences for InfernoHome, its owner(s) and operators. It is a “text book example”
of blatant and willful trademark infringement, trade dress infringement, false advertising
and unfair competition.
Case 8:20-cv-00115 Document 1-6 Filed 01/17/20 Page 4 of 4 Page ID #:75

5. Declarations
I have a good faith belief that use of the trademark as described above, in the manner I have
complained of, is not authorized by the trademark owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate, and
that I am the owner or authorized to act on behalf of the owner of the trademark rights
described above. Please note that you could be liable for damages (including costs and
attorney's fees) if you materially misrepresent that material is infringing your trademark(s).

I acknowledge that a copy of this infringement notice, including any contact information
provided above, may be provided to the person that posted the content being reported.

6. Electronic Signature
Rohini Roy