MIAMI DIVISION Case No. INTELLIBRANDS, LLC, & THE BRAND ...

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. INTELLIBRANDS, LLC, & THE BRAND GROUP, LLC

Plaintiffs, v.

INJUNCTIVE RELIEF SOUGHT & JURY TRIAL DEMANDED

JOBAR INTERNATIONAL, INC.

Defendant. /

COMPLAINT FOR PATENT & TRADEMARK INFRINGEMENT AND DAMAGES

COME NOW, Plaintiffs, INTELLIBRANDS, LLC, & THE BRAND GROUP, LLC

(collectively “Plaintiffs”) hereby sue JOBAR INTERNATIONAL, INC. (“Jobar”) for patent and

trademark infringement and alleges as follows in support of the same:

NATURE OF THE ACTION

1. This is an action for patent infringement of United States Patent No. US8550963B1

("the 963 patent" or “patented product”) arising under the patent laws of the United States, 35

U.S.C. § 1 et. seq. The 963 patent was applied for on or about November 8, 2010 and was granted

and publicized by the USPTO on October 8, 2013. The 963 patent is presently set to expire on

August 24, 2031.

2. This is also an action for trademark infringement arising under the Trademark Act of

1946, 15 U.S.C. § § 1051 et seq. (“Lanham Act”). The Plaintiffs’ are the owners of the federal

trademarks that are the subject of this Lanham Act claim containing the following Serial and Reg.

Numbers (collectively the “trademark”):

Case 2:19-cv-04505-AB-JEM Document 1 Filed 04/04/19 of 19 Page ID #:1

(a) Serial Number 87537238 bearing Reg. Number 5538597:

(b) Serial Number 87472805 bearing Reg. Number 5538353:

(c) Serial Number 85439013 bearing Reg. Number 4181046:

3. When selling its infringing product, Jobar uses the term “Circulation Leg Exerciser”

to describe its product. The term “Leg Exerciser” is purposefully confusingly similar to the

Plaintiffs’ trademark for Legxercise.

4. The infringing products at issue are aftermarket or counterfeit products infringing on

the Plaintiffs’ trademark and 963 patent for Legxercise, which is the easy-to-use, automatic leg

mover that uses continuous movement to soothe pain and help promote healthy circulation.

5. The Legxercise product has been internationally successful and includes a

recognized design that signifies the proprietary design and goodwill associated with the product.

The 963 patented passive exercise technique creates constant leg movement to mimic the natural

muscle activity of walking in the convenience of the owner’s home or office. The 963 patented

product includes a 2-speed setting and a quiet motor including 1410 steps and 1650 steps, both in

30-minute intervals. The 963 patterned product includes electronic foot plates that glide forward

and backwards allowing individuals to exercise their legs comfortably. The 963-patented product


sells direct to consumers on Legxercise.com and through popular intermediaries including Amazon,

EBay, Lexercise.com, Facebook, and QVC.


A. JOBAR INFRINGEMENT

6. Jobar’s infringement in this action pertains to its sale of a “Circulation Leg

Exerciser” that appears in all material respects similar to the Legxercise product and 963 patent and

upon information and belief, is created though the same or substantially similar product mold that is


used to create the Plaintiff’s 963 patented product. Jobar calls its product a “Leg Exerciser” in an

effort to confuse consumers that they are buying the Plaintiffs’ Legxercise product.

7. Besides selling the infringing product on its own website

(https://www.jobar.com/shop/north-american-health-wellness/circulation-leg-exerciser.html), Jobar

sells the infringing product through various online retailers, marketplaces, and through US Catalogs.

As an example:

(i) HSN.com1

1 https://www.hsn.com/products/north-american-healthwellness-motorized-leg-exerciser/8737090?query=north%20american&isSuggested=false


https://www.jobar.com/shop/north-american-health-wellness/circulation-leg-exerciser.html

https://protect-us.mimecast.com/s/TV9yCJ6X8rTB8pmZfOypr3?domain=hsn.com

https://protect-us.mimecast.com/s/TV9yCJ6X8rTB8pmZfOypr3?domain=hsn.com

(ii) Amazon2

2 https://www.amazon.com/North-American-Health-Wellness-Circulation-Exerciser/dp/B077TH551N/ref=sr_1_7_a_it?ie=UTF8&qid=1548353699&sr=8-7&keywords=legxercise


https://protect-us.mimecast.com/s/jKc6CKrE8vIDq8vOio-PHv?domain=amazon.com

https://protect-us.mimecast.com/s/jKc6CKrE8vIDq8vOio-PHv?domain=amazon.com

(iii) Walmart3

(iv) PulseTv4

3 https://www.walmart.com/ip/Motorized-Circulation-Leg-and-Foot-Exerciser-with-Various-Speeds-Glides-Back-and-Forth-to-Ease-Pain/495184165?wmlspartner=wlpa&selectedSellerId=6855&adid=22222222227267588466&wl0=&wl1=g&wl2=c&wl3=318426670996&wl4=pla-589337163316&wl5=9011947&wl6=&wl7=&wl8=&wl9=pla&wl10=114501646&wl11=online&wl12=495184165&wl13=&veh=sem&gclid=Cj0KCQiA4aXiBRCRARIsAMBZGz-7Gm5b1wC4tIqJiuKyAtkQEPTp5cmNEvReI6_rTaKWOgU_S6_UwwkaAoPVEALw_wcB 4 https://www.pulsetv.com/prodinfo.asp?number=8150


https://protect-us.mimecast.com/s/-UqICM8BZxh25x0XIOB_ZR?domain=walmart.com







https://www.pulsetv.com/prodinfo.asp?number=8150

(i) Sears5

(ii) Jet.com6

5 https://www.sears.com/fox-valley-traders-seated-walking-lower-leg-exerciser/p-A028825698?sid=IDx20110310x00001i&gclid=Cj0KCQiA4aXiBRCRARIsAMBZGz-eIzNcQ-0tTIMyG8nafxWrQ1yZASJ3xM5J3mgjY_14D-XofMxtoLoaAv2TEALw_wcB&gclsrc=aw.ds 6 https://jet.com/product/Seated-Walking-and-Lower-Leg-Exerciser/819ab08eeac04246822b11c3076de0c8?jcmp=pla:ggl:nj_roc_gen_sporting_goods_a1:sporting_goods_cardio_equipment_cardio_accessories_a1:na:PLA_1062729724_51712740386_pla-370847102637_c:na:na:na:2PLA15&pid=kenshoo_int&c=1062729724&is_retargeting=true&clickid=de10bbe2-44cc-4036-a292-ffcf1b67d903&kclid=de10bbe2-44cc-4036-a292-ffcf1b67d903&gclid=Cj0KCQiA4aXiBRCRARIsAMBZGz-3kBRHLPPb78fq9Cl61O6uEQQzbPO9rZprZGIkREDiN6qZ1hUyciMaAk90EALw_wcB


(iii) Ebay7

(iv) First Street Catalog8

7 https://www.ebay.com/i/223171217318?chn=ps 8https://www.firststreetonline.com/Healthy+Living/Exercise+amp+Fitness/Easy+Exerciser.axd?gclid=EAIaIQobChMIwZW_49ey4AIVR1qGCh0LFQJpEAYYAyABEgIiTfD_BwE


(v) Walter Drake Catalog9

(vi) AmeriMark Catolog10

9 https://www.wdrake.com/buy-seated-walking-lower-leg-exerciser-357667?sourcecode=WD299SHIP19&cmp=compare_shop&gclid=Cj0KCQiA4aXiBRCRARIsAMBZGz9V-5lSgUvBZiIYO43EjRa_YqO0u29icBKqPfWave34C4FYlBvLOXMaAsb_EALw_wcB 10 https://www.amerimark.com/seated-walking-machine/087241.html?afsrc=1&cm_mmc=PaidSearch-_-GooglePLA-_-FreeShip-_-08724100000&media=PAP0191&gclid=Cj0KCQiA4aXiBRCRARIsAMBZGz9NdR56WA-codxRlB-VA3JzHUvlJNL797n6fZBdWBCNqlSC-PCLnMsaAkWrEALw_wcB


(vii) Easy Comforts Catalog11

8. The Plaintiffs have purchased and disassembled the Jobar “Leg Exerciser”

infringing on their Legxercise product, and the internal workings of Jobar’s product identically

mirrors the 963 patent. In fact, the Plaintiffs believe that Jobar may be using the Plaintiffs’ molds

used to create the 963-patented Legxercise.

9. Amazon has reported to the Plaintiffs that Jobar is the party selling the infringing

products on Amazon.

10. Pulsetv.com has informed the Plaintiffs that Jobar is the company selling the

infringing products on said website.

11https://www.easycomforts.com/easycomforts/displayitem.aspx?id=357667&sourcecode=EC299SHIP19&cmp=compare_shop&gclid=Cj0KCQiA4aXiBRCRARIsAMBZGz9qilII8WNbLF6j7CH9F5pYzDu48E9b1EQu7obuipE_ETjKXWQMY3kaAhhWEALw_wcB


11. On numerous occasions before filing this lawsuit, the Plaintiffs directly complained

to Jobar about the infringement complained of herein. Despite Plaintiffs’ direct complaints, Jobar

did not cease its infringement activity and continues to sell the infringing “Leg Exercise, product

thereby underscoring the willful infringement.

12. The Plaintiff’s 963 patent and trademark prevents the infringement undertaken by

Jobar. Plaintiffs’ patent enforcement efforts have been widely marketed, covered, and reported,

including directly to Jobar in this action. As a result, the Jobar is intimately familiar with the

Plaintiff’s 963 patent. Nevertheless, Jobar continues to import and sell knock-offs and counterfeits

that infringe upon the Plaintiff’s trademark and the 963 patented Legxercise product. Jobar is a

willful infringer of the Plaintiff’s 963 patent and trademark. The Plaintiff brings this action to

recover money damages, for a preliminary and permanent injunction, and for other relief as set

forth herein.

THE PARTIES

13. Plaintiff Intellibrands is a Florida limited liability company with a principal place of

business located at 9905 NW 17th Street, Suite 108, Doral, Florida 33172. Plaintiff is the assignee

of the 963 patent and trademark pursuant to the agreement between Intellibrands and The Brand

Group that is attached as Exhibit “A”.

14. Plaintiff The Brand Group is a Florida limited liability company with a principal

place of business located at 701 Brickell Key Blvd, Miami, Florida 33131. Plaintiff is the assignee

of the 963 patent and trademark.

15. Defendant Jobar is a California corporation with a principal place of business at

21022 S. Figueroa Street, Carson, California 90745. Jobar publicly pronounces that it is a global

leader in the consumer products industry and specializes in products that “Make Life Easier and


More Comfortable”. Jobar publicly claims its products are innovative, functional, and

competitively priced.

16. On information and belief and as shown above, Jobar imports, offers for sale, and

sells leg exercise assemblies that infringe upon the 963 patent referenced herein, including through

Jobar's websites and third-party websites identified in the foregoing paragraphs. On information

and belief and as shown above, most, if not all, sales by Jobar are generic (i.e., without a particular

"brand" identified) infringing leg exercise assemblies that violate the Plaintiffs’ protections through

the 963 patent and its trademark.

JURISDICTION AND VENUE

17. The causes of action herein for patent infringement arise under the patent laws of the

United States, 35 U.S.C. § 271. The causes of action herein for trademark infringement arise under

the Lanham Act. This Court has subject matter jurisdiction over the claims for patent infringement

pursuant to 28 U.S.C. §§ 1331 and 1338(a). This Court has personal jurisdiction over Jobar because

Jobar has committed acts of direct and indirect patent infringement as well as trademark

infringement in this judicial district. Venue is proper in this district under 28 U.S.C. §§ 1391(b), (c)

and 1400(b).

18. Jobar sells their 963 patent infringing products throughout the country, including in

the Southern District of Florida. Jobar does business in Florida by selling infringing leg exercise

assemblies to consumers in the State of Florida and Jobar has perpetrated acts of patent

infringement, a tortious act, in the State of Florida and derives substantial and meaningful revenue

from products provided to individuals and businesses in this District.

19. Jobar has purposefully directed its infringement activities towards residents of

Florida and the claims asserted herein arise out of or relate to Jobar’s activity in Florida, including


through marketing the 963 patent infringed product to consumers in Florida. Jobar should

reasonably expect to be hauled into Court here.

CLAIM FOR RELIEF

COUNT I

(Patent Infringement—35 U.S.C. § 271)

INFRINGEMENT OF U.S. PATENT NO. 8550963B1

20. Plaintiff incorporates by reference each and every allegation contained in Paragraphs

1 through 19 as though fully set forth at length here.

21. Plaintiffs owns all right, title, and interest in, including the right to sue thereon and

the right to recover for infringement thereof, United States Patent No. 8550963B1 which was duly

and legally issued to The Brand Group by the United States Patent and Trademark Office on

October 8, 2013. The Brand Group subsequently entered into an agreement whereby Intellibrands

shares in the ownership interest of the 963 patent as shown at Exhibit “A”. The 963 patent relates

generally to an assembly structured to facilitate exercise of at least the legs of a user especially, but

not exclusively, when the user is in an at least partially seated orientation. Attached as Exhibit “B”

to this Complaint is a true and correct copy of the 963 patent.

22. The 963 patent is valid and enforceable.

23. On information and belief, and after conducting a reasonable investigation, the it is

apparent Jobar has infringed and is infringing the 963 patent, as defined by numerous claims of the

patent in violation of 35 U.S.C. § 271(a), by making, using, importing, offering to sell, and selling

in this judicial district and elsewhere the infringing leg exercise assembly, including but not limited

to, sales through the internet merchants and related catalogs as shown above.

24. The Plaintiffs purchased the infringing products sold by Jobar and dissembled the

products in order to confirm whether the infringing products, in fact, infringed on the 963 patent.


After deconstructing the products being sold by Jobar, it was discovered that the Jobar leg exercise

assembly devices patently infringed with the Plaintiffs’ 963 patent so closely that it appears the

Jobar’s leg exercise assembly devises may be created using the proprietary molds used by Plaintiffs

to create the patented Legxercise product.

25. On information and belief, Jobar has and is actively, knowingly and intentionally

aiding and abetting and inducing infringement of the 963 patent by non-parties in violation of 35

U.S.C. § 271(b), including end-users, despite Jobar's direct knowledge of the 963 patent. Jobar is

generating substantial sums of revenue by violating the Plaintiffs’ 963 patent rights. Furthermore,

the Plaintiffs are losing revenue because of Jobar’s sale of knock off Legxercise products that

infringe on the 963 patent.

26. The Plaintiffs have contacted Jobar to notify it of the fact Jobar is infringing on

Plaintiffs’ 963 patent, but Jobar continues to sell its infringing products on the aforementioned

online merchants and catalogs.

27. On information and belief, Jobar is contributing to the infringement of the 963

patent in violation of 35 U.S.C. § 271(c) by offering to sell or selling within the United States or

importing into the United States components of the patented inventions set forth in the 963 patent

and selling the same to non-party intermediaries, including Fox Valley Traders and HSN. The

components constitute a material part of the inventions. Jobar know that such components are

especially made or especially adapted for use in the infringement of the 963 patent. The

components are not a staple article or commodity of commerce suitable for substantial non-

infringing use.

28. As a result of Jobar's infringing activities, the Plaintiffs suffered, and will continue

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

29. Jobar's acts complained of herein have damaged and will continue to damage the


Plaintiffs irreparably. The Plaintiffs have no adequate remedy at law for these wrongs and injuries.

The Plaintiffs are therefore entitled to a preliminary and permanent injunction restraining and

enjoining Jobar and its agents, servants, and employees, and all persons acting thereunder, in concert

with, or on their behalf, from infringing the claims of the 963 patent.

30. Jobar is not licensed or otherwise authorized to make, use, import, sell, or offer to

sell any leg exercise assembly that violates the 963 patent, and Jobar's conduct is, in every instance,

without the consent of the Plaintiffs.

31. On information and belief, Jobar's infringement has been and continues to be willful.

COUNT II

(Patent Infringement—35 U.S.C. § 271)

INDUCED INFRINGEMENT OF U.S. PATENT NO. 8550963B1

32. Plaintiffs incorporates by reference each and every allegation contained in

Paragraphs 1 through 19 as though fully set forth at length here.

33. Jobar infringed and continue to infringe, indirectly through induced infringement by

(a) actively encouraging infringement by third parties, knowing that the acts they induce constitute

infringement of the 963 patent, (b) encouraging these acts resulting in direct patent infringement of

one or claims of the 963 patent by using, selling, or offering to sell in the United States and/or

importing into the United States and exporting out of the United States, one or more of Plaintiffs’

leg exerciser products that encourage infringement on the proprietary methods in the 963 patent.

Jobar’s infringing activities violate 35 U.S.C. Section 271(b).

34. Jobar’s infringement of the 963 patent has been and continues to be intentional,

willful, and without regard to Plaintiffs’ rights. Jobar’s infringement of the 963 patent has been

intentional, deliberate, and willful. In fact, Jobar had pre-suit knowledge of the 963 patent though

direct and potentially indirect communications with Plaintiffs.


35. Jobar has gained revenues by virtue of the infringement of the 963 patent.

36. Plaintiffs sustained damages as a direct and proximate result of Jobar’s infringement

of the 963 patent.

37. Plaintiffs will suffer and are suffering irreparable harm from Jobar’s infringement of

the 963 patent. Plaintiffs have no adequate remedy at law and are entitled to an injunction against

Jobar’s continuing infringement of the 963 patent. Unless enjoined, Jobar will continue its

infringing conduct with respect to the 963 patent.

38. Jobar’s infringement of the 963 patent renders this case exceptional within the

meaning of 35 U.S.C. Section 285.

COUNT III

(Trademark Infringement—15 U.S.C. § 1114)

FEDERAL TRADEMARK INFRINGEMENT

39. Plaintiffs incorporates by reference each and every allegation contained in

Paragraphs 1 through 19 as though fully set forth at length here.

40. Jobar’s use of a confusingly similar trademark and imitation of Plaintiffs’

Legxercise product is likely to cause confusion, deception, and mistake by creating the false and

misleading impression that Jobar’s goods are manufactured or distributed by Plaintiffs or are

associated or connected with the Plaintiffs, or have the sponsorship, endorsement, or approval of

Plaintiffs.

41. Jobar’s infringing slogan, “Circulation Leg Exerciser”, is confusingly similar to

Plaintiffs’ federally registered marks for “Legxercise” in violation of 15 U.S. C. § 1114. Jobar’s

activities are causing and, unless enjoined by this Court, will continue to cause a likelihood of

confusion and deception of members of the trade and public, and, additionally, injury to Plaintiffs’

goodwill and reputation. Plaintiffs have no adequate remedy at law to prevent the foregoing.


42. Jobar’s actions demonstrate an intentional, willful, and malicious intent to trade on

the goodwill associated with Plaintiffs’ Legxercise product to Plaintiffs’ great and irreparable harm.

43. Jobar caused and is likely to continue cause substantial injury to the public and to

Plaintiffs, and Plaintiffs are entitled to injunctive relief and to recover Jobar’s profits, actual

damages, enhanced profits and damages, costs, and reasonable attorneys’ fees under 15 U.S.C. § §

1114, 1116, and 1117.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray for judgment against Jobar finding as follows:

(i) that the 963 patent is valid and enforceable; (ii) that Jobar has infringed and is infringing the

963 patent; (iii) that such infringement is willful; (iv) that Jobar and its subsidiaries, affiliates,

parents, successors, assigns, officers, agents, representatives, servants, and employees, and all

persons in active concert or participation with them, be preliminarily and permanently enjoined

from continued infringement of the 963 patent; (v) that Jobar be ordered to pay Plaintiffs their

damages caused by Jobar's infringement of the 963 patent and that such damages be trebled,

together with interest thereon; (vi) that this case be declared exceptional pursuant to 35 U.S.C. §

285 and that Plaintiffs be awarded their reasonable attorneys' fees, litigation expenses, expert

witness fees, and costs; and (vii) that Jobar be enjoined from advertising, marketing, promoting,

offering for sale, distributing or selling the infringing product, (viii) that Jobar be enjoined from

infringing on Plaintiffs’ trademarks identified in this lawsuit, (ix) that Jobar be compelled to

account to Plaintiffs for any and all profits derived by Jobar from the sale or distribution of the

infringing product, (x) that based on Jobar’s willful and deliberate infringement and/or dilution of

the Plaintiffs’ Legxercise product and the intellectual property associated with the same, Plaintiffs

be awarded punitive damages, and (xi) that Plaintiffs have such other and further relief as the Court

deems just and proper.


DEMAND FOR JURY TRIAL

Plaintiffs hereby demand trial by jury on all triable issues raised in the Complaint.

COLE, SCOTT & KISSANE, P.A. Counsel for Plaintiffs Intellibrands, LLC, & The Brand Group, LLC Cole, Scott & Kissane Building 9150 South Dadeland Boulevard, Suite 1400 P.O. Box 569015 Miami, Florida 33256 Telephone (786) 268-6415 Facsimile (305) 373-2294 Primary e-mail: [email protected] Secondary e-mail: [email protected] s/ John Cody German JOHN CODY GERMAN Florida Bar No.: 58654


MIAMI DIVISION Case No. INTELLIBRANDS, LLC, & THE BRAND ...

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Transcript of MIAMI DIVISION Case No. INTELLIBRANDS, LLC, & THE BRAND ...