treefrog developments v. dripadz

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Andrew D. Skale (SBN 211096)[email protected] L. Wagner (SBN 243594)[email protected] LEVIN COHN FERRIS GLOVSKY AND POPEO PC3580 Carmel Mountain Road, Suite 300San Diego, CA 92130Telephone: (858) 314-1500Facsimile: (858) 314-1501

Rachael D. Lamkin (SBN 246066)[email protected] General CounselJennifer L. Becker (SBN 284222)[email protected] CounselTREEFROG DEVELOPMENTS, INC.BLUE OCEAN ENTERPRISES4 Embarcadero Center401 West Mountain AvenueSan Francisco, CA 94111Telephone: (916) 747-6091Facsimile: (970) 494-5414

Attorneys for PlaintiffTREEFROG DEVELOPMENTS, INC.D/B/A LIFEPROOF

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

TreeFrog Developments, Inc., d/b/aLifeProof,

Plaintiff,

v.

DriPadz, LLC, d/b/a Global NavigationAuthority, LLC,

Defendant.

Case No.

COMPLAINT AND DEMAND FORJURY TRIAL

'14CV1573 DHBAJB

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COMPLAINT

Plaintiff, TreeFrog Developments, Inc., d/b/a/ LifeProof, by and through its

attorneys, alleges against Defendant, DriPadz, LLC as follows:

THE PARTIES

1. Plaintiff, TreeFrog Developments, Inc., d/b/a LifeProof (“LifeProof”), is

a Delaware corporation with a principal place of business at 15110 Avenue of

Science, San Diego, California 92128.

2. Upon information and belief, Defendant, DriPadz, LLC, d/b/a Global

Navigation Authority (“DriPadz”), is a Florida limited liability company with a

principal place of business at 2419 Treasure Isle Drive, Palm Beach Gardens, Florida

33410.

JURISDICTION AND VENUE

3. This is a civil action seeking declaratory relief of non-infringement of a

trademark. This is also a civil action seeking a judgment of patent infringement.

4. LifeProof’s trademark claims arise under the Declaratory Judgment Act,

28 U.S.C. §§ 2201 and 2202, the Lanham Act, 15 U.S.C. §§ 1114, 1115, and 1125(a)

and various state and common laws. These claims are based on an actual controversy

between the parties regarding DriPadz’s allegations that LifeProof infringes its

alleged LIFEJACKET trademark, U.S. Trademark Registration No. 4,354,783, and

LifeProof’s well-founded assertions that its use of the word “LifeJacket” is fair use,

lawful and does not infringe or unfairly compete with any of DriPadz’s trademark

rights.

5. LifeProof has a reasonable apprehension of being sued by DriPadz

regarding these trademark claims. In May of 2014, in phone calls and email

correspondence, DriPadz alleged LifeProof infringed its purported LIFEJACKET

trademark. Throughout May and June of 2014, discussions between the

representatives continued, with DriPadz reiterating its allegations of trademark

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infringement and threatening suit in phone calls and email communications.

Accordingly, an actual controversy exists of sufficient immediacy and reality to

warrant declaratory relief under 28 U.S.C. § 2201.

6. LifeProof’s patent claims arise under the Patent Act, 35 U.S.C. § 1, et

seq., including 35 U.S.C. §§ 271 and 282-85.

7. This Court has jurisdiction over the subject matter of this action

pursuant to 28 U.S.C. §§ 1331, 1332, 1338, 2201 and 2202, 15 U.S.C. § 1121, and

supplemental jurisdiction under 28 U.S.C. § 1367.

8. LifeProof resides in this District, and a substantial part of the events

giving rise to its claims occurred in this District. Upon information and belief,

DriPadz continuously, systematically and purposefully conducts business within this

District, including but not limited to offering and selling the products accused of

patent infringement and advertising the LIFEJACKET trademark at issue in the

declaratory judgment action in this District. DriPadz has sent electronic

correspondence to representatives of LifeProof, knowing LifeProof resides in this

District, alleging that LifeProof is infringing its trademark rights. DriPadz has

purposefully availed itself of the laws and jurisdiction of this District.

9. Personal jurisdiction and venue are proper in this district pursuant to 28

U.S.C. §§ 1391(b) and (c) and 1400(b).

FACTUAL ALLEGATIONS

A. LifeProof’s Well Known LIFEPROOF Brand and Products

10. LifeProof designs and markets protective cases for portable electronic

devices, including cell phones and tablets, that enable full functionality and

interactivity under virtually any condition encountered in daily life. The

LIFEPROOF brand name is inspired by the protection and operability of portable

electronic devices in water, mud, dirt, or snow as a result of its products.

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11. LifeProof filed for registration of its LIFEPROOF mark on July 10,

2010. Since at least as early as 2011, it has been using the LIFEPROOF mark as its

brand name to sell cases, covers and accessories for portable electronic devices.

12. LifeProof has obtained multiple federal registrations for its

LIFEPROOF mark, including without limitation U.S. Registration Nos. 4,057,201;

4,360,963; 4,519,288; and 4,520,890.

13. LifeProof has invested millions of dollars advertising the LIFEPROOF

mark in the United States and worldwide. The LIFEPROOF mark has accumulated

considerable goodwill as a result of LifeProof’s immense success in the market for

protective covers and cases for portable electronic devices.

14. LifeProof’s products sold under the LIFEPROOF mark have received

multiple awards, including the Mashable Choice Award 2013, the Backpacker 2013

Editor’s Choice Award, the Field & Stream 2013 Best of the Best Award, the CTIA

2013 Best of Show Award, the About.com 2013 Readers’ Choice Award, the Parent

Tested Parent Approved Award, the Impulse Gamer Editor’s Choice Award, the

National Geographic Gear of the Year 2012 Award, the Gear Junkie Top Gear of

2012 Award, the IFA 2012 Best Accessory Award, the CES 2012 Innovation Award,

and the Men’s Journal Gear of the Year 2012 Award.

15. Consequently, consumers throughout the United States have come to

recognize the LIFEPROOF mark as LifeProof’s brand and perceive it as LifeProof’s

primary identity and persona in the marketplace.

16. In 2012, LifeProof began offering a “LifeJacket” for iPhone cell phones

and iPad tablets. LifeProof’s “LifeJacket” is installed on top of an existing

waterproof LIFEPROOF brand case to create a floatable and waterproof iPhone or

iPad device protection system.

17. A photograph of the “LifeJacket” being installed on an iPhone cell

phone over an existing LIFEPROOF brand iPhone 4/4s case is shown in Figure 1.

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18. As shown in Figure 1, the “LifeJacket” is colored high-visibility orange.

The product also recently became available in green for the iPad Air and iPad mini

Retina tablets, although the vast majority of product on display and sold is orange.

These colors are intended to mimic the colors of conventional lifejackets for people.

19. The “LifeJacket” is a lifejacket for an iPhone cell phone or iPad tablet

that keeps the device floating. The name descriptively, if not generically, identifies

what the product does.

20. LifeProof promotes and sells its “LifeJacket” to iPhone and iPad device

users who engage in water-oriented recreational activities. All marketing and

promotion of the “LifeJacket” highlights the well-known, if not famous,

LIFEPROOF house mark to tell consumers who sells the product.

21. The attached Exhibit A is a print-out from the “LifeProof LifeJacket

Float for iPhone 5/5s/5c case” product page on the Lifeproof.com online retail store,

which illustrates how the product is marketed and the way in which the “LifeJacket”

term is used. As shown, the “LifeJacket” descriptor is next to the well-known,

famous, LIFEPROOF mark.

22. LifeProof is not using “LifeJacket” as an indicator of product source;

rather, LifeProof uses the term to describe a type of product that functions as a

flotation device or lifejacket for a portable electronic device.

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23. The “LifeJacket” is available at the Lifeproof.com online retail store for

between $39.99 and $59.99, plus taxes and shipping charges. The product is also

sold in other retail stores nationwide.

B. LifeProof’s U.S. Patents

24. On September 3, 2013, the United States Patent and Trademark Office

issued U.S. Patent No. 8,526,180 (“the ’180 Patent”), entitled “Housing for Encasing

an Object Having an Electrical Connection.” A copy of the ’180 Patent is attached as

Exhibit B.

25. Generally, the claims of the ’180 Patent are directed to an apparatus

and/or system for housing a mobile electronic device that creates a shockproof and/or

water tight protective seal.

26. The ’180 Patent was duly and legally issued to LifeProof as assignee of

the inventor. LifeProof is still the owner of the entire right, title and interest in and

to the ’180 Patent, which is currently in full force and effect.

27. On September 10, 2013, the United States Patent and Trademark Office

issued U.S. Patent No. 8,531,824 (“the ’824 Patent”), entitled “Housing for Encasing

an Object Having a Headphone Port.” A copy of the ’824 Patent is attached as

Exhibit C.

28. Generally, the claims of the ‘’824 Patent are directed to an apparatus

and/or system for housing a mobile electronic device that creates a shockproof and/or

watertight protective seal.

29. The ’824 Patent was duly and legally issued to LifeProof as assignee of

the inventor. LifeProof is still the owner of the entire right, title and interest in and

to the ’824 Patent, which is currently in full force and effect.

C. DriPadz’s Alleged LIFEJACKET Mark and Products

30. Upon information and belief, non-party Forward Industries, Inc. filed an

application to register the word LIFEJACKET as a trademark on November 10, 2011

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for “[w]aterproof protective case for tablet computers.” That application was

assigned U.S. Serial No. 85/469,808, and issued as U.S. Registration No. 4,354,783

(“the ’783 Registration”) on June 18, 2013. A print-out of the ’783 Registration from

the Trademark Status & Document Retrieval database records is attached as Exhibit

D.

31. Upon information and belief, non-party Forward Industries, Inc.

assigned all rights, title, and interest in and to the ’783 Registration and

corresponding LIFEJACKET mark to DriPadz on November 5, 2013.

32. Upon information and belief, DriPadz markets two (2) products under

the alleged LIFEJACKET mark – a “Waterproof iPad Case” and a “Case with

Waterproof USB Charging Port Built In.” Both are for use with iPad tablets. A

print-out from the Lifejacketcase.com online retail store, showing these two product

offerings, is attached as Exhibit E.

33. As shown in Exhibit E, the Lifejacket Waterproof iPad Case is sold on

the Lifejacketcase.com online retail store for $69.99 and the Lifejacket Case with

Waterproof USB Charging Port Built In is sold for $99.99, plus taxes and shipping

charges.

34. An image of DriPadz’s Waterproof iPad Case is depicted in Figure 2.

As shown, it is a black case for iPad tablets and is not designed to resemble a

conventional life jacket.

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35. Upon information and belief, DriPadz’s Waterproof iPad Case does not

bear the alleged LIFEJACKET mark. Rather, it bears the “DRIPADZ” mark to the

right of the screen.

36. Upon information and belief, DriPadz primarily markets its products to

boating enthusiasts as a tool for marine navigation. For example, the DriPadz

website also sells numerous software applications for use on tablets for navigational

purposes. (Exhibit F.) Upon information and belief, all or substantially all of these

applications are directed to marine navigation.

D. DriPadz’s Patent Infringement

37. DriPadz has infringed and is still infringing the ’180 and ’824 Patents by

making, using, selling and offering for sale its tablet cases, either literally or under

the doctrine of equivalents.

38. LifeProof has complied with the notice provision of the patent statutes

by providing notice of patent ownership on its products together with LifeProof’s

website address, http://www.lifeproof.com/en/ip/, accessible to the public without

charge, that associates the ’180 and ’824 Patents with its patented products.

39. DriPadz has actual knowledge of the ’180 Patent and its infringement of

the same and, upon information and belief, actual knowledge of the ’824 Patent and

its infringement of the same. Namely, on June 20, 2014, LifeProof’s representative,

Mr. Tom Smith, advised DriPadz’s CEO, Mr. James Klement, that one or more of

DriPadz’s products infringed at least one of the claims of the ’180 Patent.

40. On June 26, 2014, in response to Mr. Smith’s disclosure of the

infringement concerns, Mr. Klement advised Mr. Smith that DriPadz’s tablet cases

infringed the ’180 Patent. Mr. Klement also informed Mr. Smith that DriPadz’s

attorneys had reviewed LifeProof’s patents, and determined that DriPadz infringed

other LifeProof patents. Mr. Klement advised Mr. Smith that DriPadz would not

cease its infringement because it believed the damages DriPadz would receive for

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LifeProof’s alleged trademark infringement would outweigh any damages LifeProof

would receive for DriPadz’s patent infringement.

41. Despite knowledge of the ’180 Patent and its infringement of the same,

and, upon information and belief, knowledge of the ’824 Patent and its infringement

of the same, DriPadz continues to recklessly, willfully, and/or deliberately

manufacture, distribute and sell products that infringe the ’180 and ’824 Patents.

CLAIM I – DECLARATORY JUDGMENT OF NO TRADEMARK

INFRINGEMENT BASED ON FAIR USE UNDER 15 U.S.C. § 1115

42. LifeProof repeats and incorporates by reference the allegations of

Paragraphs 1 – 41, as if fully set forth herein.

43. LifeProof’s use of “LifeJacket” is fair use, and not use of a mark that

causes confusing similarity, pursuant to 15 U.S.C. § 1115(b)(4), which provides for

the following defense to claims of trademark infringement:

That the use of the name, term, or device charged to be an

infringement is a use, otherwise than as a mark … of a term or

device which is descriptive of and used fairly and in good faith

only to describe the goods or services of such party….

44. “Lifejacket” is a descriptive word that ordinarily refers to a buoyant or

inflatable jacket or vest for keeping something afloat in water.

45. LifeProof’s use of “LifeJacket” is descriptive, and not a trademark use,

pursuant to 15 U.S.C. § 1115(b)(4). LifeProof’s use of the word “LifeJacket”

describes the goods sold by LifeProof, namely a buoyant object designed for staying

afloat. LifeProof’s “LifeJacket” is designed to mimic the colors of conventional

lifejackets—orange and green—thereby further connecting the product to the

definition of the word lifejacket.

46. LifeProof’s use of “LifeJacket” is descriptive, not trademark use, and is

therefore fair use and in good faith.

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CLAIM II – DECLARATORY JUDGMENT OF NO TRADEMARK

INFRINGEMENT UNDER 15 U.S.C. § 1114



48. DriPadz has accused LifeProof of infringing the LIFEJACKET mark,

alleging a likelihood of consumer confusion and damage to DriPadz. Upon

information and belief, there is no likelihood of confusion, resulting in damage to

DriPadz, with respect to LifeProof’s use of the word “LifeJacket.”

49. Upon information and belief, the parties use different marks, on

different products, sold to different consumers, through different channels of trade at

different price points.

50. DriPadz’s mark and LifeProof’s product descriptor are different.

DriPadz’s mark is LIFEJACKET, used in connection with cases for tablets.

LifeProof’s products accused of trademark infringement are identified as

LIFEPROOF brand products, and the “LifeJacket” is a product descriptor for an

accessory sold by LifeProof.

51. The parties’ products are different. DriPdaz’s products marketed and

sold under its alleged LIFEJACKET mark are cases for tablets. LifeProof’s

“LifeJacket” accessory is not a “case,” as that term is used by both parties to describe

their respective products. Rather, LifeProof’s “LifeJacket” is installed on top of an

existing LIFEPROOF brand waterproof case to create a waterproof and floatable

iPhone or iPad protection system.

52. LifeProof’s “LifeJacket” is manufactured from a hard foam material and

colored high-visibility orange or green to mimic the look and feel of a conventional

lifejacket worn by people. Upon information and belief, DriPadz’s tablet cases are

neither made of hard foam nor colored like a conventional lifejacket.

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53. Upon information and belief, the parties’ products are offered at

different price points. Upon information and belief, LifeProof’s products retail

between $39.99 and $59.99 and DriPadz’s products retail between $69.99 and

$99.99.

54. Upon information and belief, the parties do not promote their respective

“lifejacket” products to the same class of consumers. Upon information and belief,

DriPadz target marine enthusiasts using tablets for navigation.

55. LifeProof’s use of the “LifeJacket” descriptor is not likely to cause

confusion or mistake and/or to deceive the public with respect to DriPadz’s alleged

LIFEJACKET mark, and LifeProof has not engaged in acts of trademark

infringement in violation of 15 U.S.C. § 1114.

CLAIM III – DECLARATORY JUDGMENT OF NO FALSE DESIGNATION

OF ORIGIN UNDER 15 U.S.C. § 1125



57. DriPadz has accused LifeProof of using “LifeJacket” in a manner that is

likely to cause confusion by the public as to the origin of LifeProof’s accessories,

thereby allegedly damaging DriPadz. Upon information and belief, there is no

likelihood of confusion, resulting in damage to DriPadz, with respect to LifeProof’s

use of “LifeJacket.”

58. LifeProof has not used, on or in connection with goods, a mark which is

likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,

connection, or association of LifeProof with DriPadz, or as to the origin,

sponsorship, or approval of LifeProof’s goods, or commercial activities, by DriPadz.

59. Upon information and belief, LifeProof is not competing unfairly or

causing any false designation of origin by selling and advertising a “LifeJacket”

accessory.

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60. LifeProof has not engaged in any acts that constitute a false designation

of origin and misrepresentation in violation of 15 U.S.C. § 1125(a).

CLAIM IV – DECLARATORY JUDGMENT OF NO STATE AND

COMMON LAW UNFAIR COMPETITION OR TRADEMARK

INFRINGEMENT



62. DriPadz has accused LifeProof of using “LifeJacket” in a manner that is

likely to cause confusion by the public as to the origin of LifeProof’s accessories,

thereby allegedly damaging DriPadz. Upon information and belief, there is no

likelihood of confusion, resulting in damage to DriPadz, with respect to LifeProof’s

use of “LifeJacket.”

63. LifeProof has not used, on or in connection with goods, a mark which is

likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,

connection, or association of LifeProof with DriPadz, or as to the origin,

sponsorship, or approval of LifeProof’s goods, or commercial activities, by DriPadz.

64. Upon information and belief, LifeProof is not competing unfairly or

causing any false designation of origin by selling and advertising a “LifeJacket”

accessory. LifeProof’s use of “lifejacket” is descriptive, and fair use.

65. LifeProof’s use of the “LifeJacket” descriptor is not likely to cause

confusion or mistake and/or to deceive the public with respect to DriPadz, and

LifeProof has not engaged in any acts that constitute a false designation of origin,

unfair trade practices or misrepresentation in violation of any state or common law.

CLAIM V – INFRINGEMENT OF U.S. PATENT 8,526,180



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67. LifeProof is the assignee of the ’180 Patent and continues to hold all

rights and interest in the ’180 Patent.

68. Upon information and belief, DriPadz has infringed and continues to

infringe the ’180 Patent, either literally or under the doctrine of equivalents.

DriPadz’s infringing activities in the United States and this District include the

manufacture, use, sale, and/or offer for sale of tablet cases that satisfy all the

elements of one or more claims of the ’180 Patent, including at least Claim 1.

69. LifeProof has been damaged by DriPadz’s infringement of the ’180

Patent in an amount to be proven at trial and will continue to be damaged in the

future unless DriPadz is permanently enjoined from infringing the ’180 Patent.

70. DriPadz has actual knowledge of the ’180 Patent and that its use,

manufacture, sale, and/or offer for sale of its tablet cases infringes the ’180 Patent, by

LifeProof’s compliance with the notice provisions of the patent statutes and direct

correspondence from LifeProof.

71. DriPadz’s infringement of the ’180 Patent is now and has been willful

and will continue unless enjoined by the Court.

72. By reason of DriPadz’s willful infringement of the ’180 Patent,

LifeProof is entitled to recover actual damages, treble damages, attorneys’ fees, and

the costs of this litigation pursuant to 35 U.S.C. §§ 284 & 285 and injunctive relief

pursuant to 35 U.S.C. § 283.

CLAIM VI – INFRINGEMENT OF U.S. PATENT 8,531,824



74. LifeProof is the assignee of the ’824 Patent and continues to hold all

rights and interest in the ’824 Patent.

75. Upon information and belief, DriPadz has infringed and continues to

infringe the ’824 Patent, either literally or under the doctrine of equivalents.

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DriPadz’s infringing activities in the United States and this District include the

manufacture, use, sale, and/or offer for sale of tablet cases that satisfy all the

elements of one or more claims of the ’824 Patent, including at least Claim 28.

76. LifeProof has been damaged by DriPadz’s infringement of the ’824

Patent in an amount to be proven at trial and will continue to be damaged in the

future unless DriPadz is permanently enjoined from infringing the ’824 Patent.

77. DriPadz has constructive knowledge of the ’824 Patent by LifeProof’s

compliance with the notice provisions of the patent statutes, and, upon information

and belief, actual knowledge of the ’824 Patent based on DriPadz’s admission that it

reviewed the LifeProof patents.

78. By reason of DriPadz’s willful infringement of the ’824 Patent,

LifeProof is entitled to recover actual damages, treble damages, attorneys’ fees, and

the costs of this litigation pursuant to 35 U.S.C. §§ 284 & 285 and injunctive relief

pursuant to 35 U.S.C. § 283.

PRAYER FOR RELIEF

WHEREFORE, LifeProof respectfully requests relief as follows:

1. Declaring that LifeProof’s use of the word “LifeJacket” does not violate

any federal, state, or common law rights of DriPadz, including a declaration that:

(A) LifeProof’s use of the “LifeJacket” descriptor is a fair use of

DriPadz’s LIFEJACKET mark,

(B) LifeProof’s use of the “LifeJacket” descriptor does not infringe

DriPadz’s alleged LIFEJACKET mark,

(C) LifeProof’s use of the “LifeJacket” descriptor does not constitute

unfair competition or false designation of origin;

2. A judgment that the ’180 and ’824 Patents are valid and enforceable;

3. A judgment that DriPadz is infringing and/or has infringed the ’180 and

’824 Patents, and that such infringement is willful and deliberate;

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4. A permanent injunction providing that DriPadz, its officers, agents,

servants, and employees and those persons in active concert or participation with any

of them be enjoined from further infringing the ’180 and ’824 Patents in accordance

with 35 U.S.C. § 283;

5. An award of compensatory damages to LifeProof, including but not

limited to, lost profits, but in no event less than a reasonable royalty, and that such

damages be trebled for the willful, deliberate, and intentional infringement by

DriPadz, as alleged herein, in accordance with 35 U.S.C. §§ 284 and 285, and that

LifeProof be awarded interest on the damages so computed;

6. An award to LifeProof of its costs, including expert witness fees, and

reasonable attorney fees, incurred in connection with the patent and trademark claims

in this action; and

7. Granting such other and further relief as this Court deems just and

proper.

DEMAND FOR JURY TRIAL

LifeProof hereby demands a trial by jury of all issues so triable.

Dated: July 1, 2014 MINTZ LEVIN COHN FERRIS GLOVSKY &POPEO

By: s/Andrew D. SkaleAndrew D. Skale, Esq.

Andrew D. Skale (SBN 211096)Ben L. Wagner (SBN 243594)MINTZ LEVIN COHN FERRIS GLOVSKYAND POPEO PC

Rachael D. Lamkin (SBN 246066)Jennifer L. Becker (SBN 284222)TREEFROG DEVELOPMENTS, INC.BLUE OCEAN ENTERPRISES

Attorneys for PlaintiffTREEFROG DEVELOPMENTS, INC.D/B/A LIFEPROOF

31622906v.1

treefrog developments v. dripadz

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