ADAM K. DERMAN MELISSA A.

SALIMBENE WOLFF & SAMSON PC One Boland Drive West Orange, New Jersey 07052 Telephone: (973) 325-1500 Facsimile: (973) 325-1501 Attorneys for Plaintiff English Riding Supply, Inc. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ENGLISH RIDING SUPPLY, INC., Civil Action No.: Plaintiff, vs. INTERNATIONAL RIDING HELMETS, INC., Defendant. Plaintiff English Riding Supply, Inc. (ERS), located at 520 Kane Street, Scranton, Pennsylvania, by way of complaint against the Defendant International Riding Helmets, Inc. (Defendant), says: NATURE OF ACTION 1. This is an action for patent infringement, trade dress infringement, unfair COMPLAINT Jury Trial Demanded

competition, false advertising and other relief arising under the laws of the United States, specifically 35 U.S.C.A. 271 (the Patent Act), 15 U.S.C. 1125 (the Lanham Act), and the laws of the State of New Jersey, as a result of Defendants manufacturing, distributing, selling, advertising and marketing of horseback riding helmets that are imitations of ERSs original, patented and/or highly distinctive horseback riding helmets.

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THE PARTIES 2. Plaintiff ERS is a corporation organized and existing under the laws of the State

of Delaware with its principal place of business located at 520 Kane Street, Scranton, Pennsylvania. 3. Upon information and belief, Defendant International Riding Helmets, Inc. is a

corporation organized and existing under the laws of the State of New Jersey with its principal pace of business located at 21 Industrial Drive, Cliffwood Beach, New Jersey. JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction over this action pursuant to 35 U.S.C.

271 and 28 U.S.C. 1331 and 1338 because ERSs claims arise under the patent and trademark laws of the United States. This Court also has supplemental jurisdiction pursuant to 28 U.S.C. 1338(b) and 1367 over ERSs claims that arise under the laws of the State of New Jersey. 5. This Court has personal jurisdiction over the parties to this action because (i)

ERSs claims arise in this judicial district, and (ii) Defendant is incorporated in, has its principal place of business in and does business in this judicial district. 6. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 because

Defendant is incorporated in, has its principal place of business in and does business in this judicial district, witnesses and evidence are located within this judicial district, and the acts complained of herein have taken place in this judicial district. FACTUAL SUMMARY A. ERSs Trade Dress and Design Patent Rights 7. ERS is an independent company that markets and sells horseback riding

products, apparel and equipment, including horseback riding helmets, to retailers throughout 2
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the United States and abroad. Since its formation, ERS has sold millions of dollars worth of horseback riding products, apparel and equipment and, as a result, ERS has developed a strong reputation in the horseback riding products market in the United States. 8. Many of ERSs horseback riding products, apparel and equipment feature

distinctive designs and trade dress which customers have come to associate with ERS and ERSs product lines. 9. Among the lines of products ERS markets and sells, are ERSs popular Ovation

and One-K lines of horseback riding helmets. For several years, ERS has marketed and sold its Ovation Deluxe Schooler horseback riding helmet under the Ovation line, and has marketed and sold it One-K Defender horseback riding helmet under the One-K line. 10. ERSs Ovation Deluxe Schooler and One-K Defender helmets feature distinctive

designs and trade dress that consumers have come to associate with ERS and its brands. 11. Additionally, ERS is the exclusive licensee of U.S. Design Patent No. US

D602,640 for Horseback Riding Helmet, issued October 20, 2009 (the Design Patent), which covers aspects of ERSs Ovation Deluxe Schooler helmet design. ERS is the exclusive licensee of the Design Patent through and until the expiration of the Design Patent. A copy of the Design Patent is attached hereto as Exhibit A.

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12.

ERSs Ovation Deluxe Schooler helmet is depicted below:

13.

ERSs Ovation Deluxe Schooler helmet design and trade dress consists of the

following elements: Three decorative boomerang shaped vents within a raised teardropshaped ornamental design on the top, center of the helmet, which features are protected by the Design Patent; Two decorative vertical, elongated, triangular shaped vents on the front sides of the helmet, which features are protected by the Patent; Two decorative vertical, elongated, triangular shaped vents on the back sides of the helmet, which features are protected by the Patent; and Placement of the OV Ovation logo on the front, center of the helmet in white lettering.

14.

None of the elements of ERSs Ovation Deluxe Schooler helmet design and

trade dress described above are functional, but instead are all purely decorative features.

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15.

ERSs other helmet at issue, the One-K Defender, is depicted below:

16. elements:

ERSs One-K Defender helmet design and trade dress consists of the following

A decorative design of two boomerang shaped vents on the top, front of the helmet contained within a curved triangular panel; An ornamental design of two parallel lines extending to the back of the helmet; Two decorative horizontal, elongated, triangular shaped mesh vents on the sides of the helmet; Decorative strap design that includes a triangular shape cutout; and An ornamental circular medallion containing ERSs Stylized One-K logo located on the front, center of the helmet.

17.

None of the elements of ERSs One-K Defender helmet design and trade dress

described above are functional, but instead are all purely decorative features.

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18.

ERS has invested a substantial amount of time, money and other resources

advertising, promoting and marketing its Ovation Deluxe Schooler and One-K Defender riding helmets, which feature its proprietary designs, throughout the United States. As a result of ERSs substantial advertising, marketing and promotional efforts, its proprietary helmet designs have acquired substantial consumer recognition and goodwill and have become important source indicators which identify the quality horseback riding products, apparel and equipment provided by ERS. 19. ERSs trade dress for its Ovation Deluxe Schooler and One-K Defender helmets

has acquired secondary meaning and fame, which is further evidenced by the knock-off riding helmets that have been manufactured, distributed and sold by Defendant in order to trade off of the goodwill and fame associated with ERSs helmets 20. Indeed, ERSs trade dress for its Ovation Deluxe Schooler and One-K Defender

helmets has become extremely well known and highly recognizable as an indicator of source in the horseback riding apparel and equipment market and is entitled to the utmost protection, such that ERS is entitled to relief against any unauthorized use. 21. ERSs trade dress for the Ovation Deluxe Schooler and One-K Defender helmets

is non-functional. B. Defendants Infringing Products 22. Defendant is engaging in a pattern of manufacturing, advertising, marketing,

distributing and selling its IRH Equi-Pro and IRH IR4G horseback riding helmets (collectively, the Infringing Products) that blatantly misappropriate ERSs patented helmet design and trade dress utilized for its Ovation Deluxe Schooler and One-K Defender riding helmets.

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23.

Specifically, Defendant is selling its IRH Equi-Pro helmet which product is a

virtual copy of ERSs Ovation Deluxe Schooler helmet and specifically covers all the elements covered by the Design Patent as well as the trade dress and overall look and feel of ERSs Ovation Deluxe Schooler helmet. Depicted below are side-by-side comparisons of ERSs Ovation Deluxe Schooler helmet and Defendants IRH Equi-Pro helmet:

ERSs Ovation Deluxe Schooler 24.

Defendants IRH Equi-Pro

Defendants IRH Equi-Pro helmet features infringing trade dress including three

decorative boomerang shaped vents within a raised teardrop-shaped ornamental design on the top, center of the helmet, as well as two decorative vertical, elongated, triangular shaped vents on the front sides of the helmet and two decorative vertical, elongated, triangular shaped vents on the back sides of the helmet, all of which are the exact same features that are included on ERSs Ovation Deluxe Schooler helmet and are features covered by the Design Patent. Defendant even goes so far as to place its IRH logo in the same exact position on the IRH Equi-Pro helmet that ERSs OV Ovation logo is placed on the Ovation Deluxe Schooler

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helmet and uses the same white lettering for its logo that ERS uses for its logo. (See side by side comparison in 23 above). 25. In addition, another of Defendants helmets, the IRH IR4G helmet, is a virtual

copy of the design and overall look and feel of ERSs One-K Defender helmet. Depicted below are side-by-side comparisons of ERSs One-K Defender helmet and Defendants IRH IR4G helmet:

ERSs One-K Defender Helmet 26.

Defendants IRH IR4G

Defendants IRH IR4G helmet features infringing trade dress including a

decorative design of three boomerang shaped vents on the top, front of the helmet contained within a curved triangular panel, with an ornamental design of two parallel lines extending to the back of the helmet, and two decorative horizontal, elongated, triangular shaped mesh vents on the sides of the helmet, which design is confusingly similar to the design of ERSs One-K Defender helmet. The decorative design of the straps for Defendants IRH IR4G is also confusingly similar to the design of the straps on ERSs One-K Defender. Moreover,

Defendants IRH IR4G helmet includes an ornamental circular medallion containing an IR 8

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logo, which medallion is identical in shape, design and placement as the medallion containing the ERSs stylized One-K logo on the One-K Defender helmet. (See side by side comparison in 25 above). Upon information and belief, Defendant does not use such a circular medallion of its logo on any of its other helmets in the marketplace, just on the one that is confusingly similar in design to ERSs One-K Defender helmet. Also upon information and belief,

Defendant does not use the IR logo on any of its other products, but rather uses and IRH logo for International Riding Helmets. (See for example, the logo on Defendants IRH EquiPro helmet in 23 above). Only here, where the IR logo design is confusingly similar to ERSs stylized One-K logo, does Defendant suddenly use this shortened IR logo. 27. Defendant is selling its infringing helmets side by side with ERSs identical

helmets in horseback riding supply stores and via the Internet through major third-party online retailers of horseback riding supplies. 28. There is no question that Defendant has blatantly and willfully copied ERSs

trade dress and design elements covered by the Design Patent in order to trade upon the popularity and goodwill associated with ERSs Ovation and One-K product lines, including the Ovation Deluxe Schooler and One-K Defender helmets. As a result of Defendants

appropriation of ERSs above-depicted trade dress and design elements covered by the Design Patent, when an ordinary consumer encounters Defendants Infringing Products in the marketplace, they will believe that the Infringing Products and ERSs helmets are substantially the same, and the resemblance is such that the consumer will be induced to purchase Defendants products, believing that they are part of ERSs Ovation and One-K lines of products.

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29.

In addition, by producing helmets comprised of the aforementioned knock-off

designs, Defendant has appropriated the novelty which distinguishes ERSs proprietary helmet designs from that of other designs. Defendants use of ERSs trade dress and design elements covered by the Design Patent will suggest to consumers a sponsorship with or approval of Defendants goods by ERS which Defendant does not have and unquestionably constitutes an infringement of ERSs valuable rights. 30. Upon information and belief, Defendant has directly and indirectly benefited

from its infringing conduct and the Infringing Products described above and is engaging in unfair competition by appropriating the goodwill associated with ERSs well known trade dress and design elements covered by the Design Patent. Defendants sale of its Infringing Products has caused and is likely to cause damage to the exclusivity of ERSs designs by flooding the market with copies of ERS helmet designs in the form of imitations. C. ERSs Notice to Defendant of the Infringing Conduct and Products 31. Immediately after ERS learned about Defendants marketing and sale of the

Infringing Products, counsel for ERS sent a cease and desist letter to Defendant dated September 12, 2013. In that letter, ERS advised that it was the exclusive licensee of the Design Patent which covers aspects of ERSs Ovation Deluxe Schooler helmet and notified Defendant that it was engaging in a pattern of infringing upon ERSs Design Patent and trade dress rights in its Ovation Deluxe Schooler and One-K Defender helmets. ERS demanded that Defendant cease manufacturing and selling the Infringing Products. 32. By letter dated September 18, 2013, counsel for Defendant responded by merely

stating that it was in receipt of the September 12, 2013 letter and that ERSs allegations will be reviewed and responded to in due course.

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33.

To date, however, Defendant has provided no substantive response to

Defendants September 12, 2013 letter. Upon information and belief, Defendant has failed to comply with any of the demands set forth in ERSs September 12, 2013 letter, and has continued to manufacture, market and sell the Infringing Products. COUNT I TRADE DRESS INFRINGEMENT UNDER THE LANHAM ACT, 15 U.S.C. 1125(a) 34. ERS repeats and reallages each and every allegation contained in the proceeding

paragraphs of the Complaint as if they were set forth in full herein. 35. Defendants unauthorized use of ERSs trade dress used in connection with

ERSs Ovation Deluxe Schooler and One-K Defender helmets, as described and depicted above, falsely indicates that Defendant is connected with, sponsored, endorsed, authorized, approved by or affiliated with ERS, which it is not. 36. Defendants use of ERSs trade dress in connection with Defendants IRH Equi-

Pro and IRH IR4G riding helmets, as described and depicted above, is likely to cause, and has already caused confusion, mistake or deception as to the source or affiliation of Defendants goods. 37. Defendants unauthorized use of ERSs trade dress allows Defendant to receive

the benefit of ERSs goodwill, which ERS has established at great labor and expense, and further allows Defendant to gain acceptance of its goods, based not upon its own quality and ingenuity, but on the reputation, investment, hard work and goodwill of ERS. 38. The acts of Defendant complained of herein constitute an infringement of ERSs

trade dress in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).

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39.

Upon information and belief, Defendants infringement of ERSs trade dress has

been willful and deliberate, and designed to trade on ERSs goodwill associated with the trade dress. 40. As a result of Defendants actions, Defendant is being unjustly enriched and

ERS has been and is being injured and damaged both in terms of lost sales and loss of control over its valuable brands and goodwill, and ERS has been harmed in an amount to be determined at trial and will continue to be harmed and will suffer irreparable injury unless Defendant is enjoined from the foregoing actions. COUNT II DESIGN PATENT INFRINGEMENT 41. ERS repeats and reallages each and every allegation contained in the proceeding

paragraphs of the Complaint as if they were set forth in full herein. 42. Defendant, through its conduct as described above, has infringed and continues

to infringe the Design Patent by making, using, selling and/or offering for sale its IRH EquiPro helmet bearing the identical or virtually identical design elements covered by the Design Patent (as shown next to ERSs Ovation Deluxe Schooler in 23 above). 43. been willful. 44. ERS has been damaged and irreparably harmed, and if Defendants conduct is Upon information and belief, Defendants infringement of the Design Patent has

not enjoined, ERS will continue to be damaged and irreparably harmed by Defendants infringement of the Design Patent.

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COUNT III UNFAIR COMPETITION UNDER 15 U.S.C. 1125, THE LANHAM ACT 45. ERS repeats and reallages each and every allegation contained in the proceeding

paragraphs of the Complaint as if they were set forth in full herein. 46. Defendant, through its conduct as described above, is marketing and selling in

commerce the Infringing Products which infringe on and are imitations of ERSs trade dress and Design Patent rights, and which are or have been likely to cause confusion or mistake and/or to deceive in violation of Section 43(a) of the Lanham Act (15 U.S.C. 1125). 47. Defendant has committed such acts willfully and with full knowledge of ERSs

prior use of and rights in its trade dress and Design Patent rights. 48. As a result of the Defendants acts of unfair competition, ERS has suffered and

will continue to suffer serious harm. COUNT IV UNFAIR COMPETITION UNDER N.J.S.A. 56:4-1 49. ERS repeats and reallages each and every allegation contained in the proceeding

paragraphs of the Complaint as if they were set forth in full herein. 50. Defendant has and continues to, among other things, sell the Infringing Products

utilizing the identical trade dress that is utilized by ERS in connection with ERSs Ovation Deluxe Schooler and One-K Defender helmets. In addition, Defendant is selling its IRH IR4G helmet utilizing the identical designs of the Design Patent that is exclusively licensed to and utilized by ERS. 51. Defendants unauthorized use of ERSs trade dress and design elements covered

by the Design Patent, as described and depicted above, falsely indicates that Defendant is

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connected with, sponsored, endorsed, authorized, approved by or affiliated with ERS, which it is not. 52. Defendants use of ERSs trade dress and design elements covered by the

Design Patent in connection with the Infringing Products, is likely to cause confusion, mistake or deception as to the source or affiliation of Defendants goods. 53. Defendants unauthorized use of ERSs trade dress and design elements covered

by the Design Patent in connection with the Infringing Products allows Defendant to receive the benefit of ERSs goodwill, which ERS has established at great labor and expense and further allows Defendant to gain acceptance of its goods, based not upon its own quality and ingenuity, but on the reputation, investment, hard work and goodwill of ERS. 54. The acts of Defendant complained of herein constitute unfair competition in

violation of the New Jersey Unfair Competition Statute (N.J.S.A. 56:4-1) and the common law of the State of New Jersey. 55. 56. The acts of Defendant complained of herein were committed willfully. As a result of Defendants actions, Defendant is being unjustly enriched and

ERS has been harmed in an amount to be determined at trial and will continue to be harmed and will suffer irreparable injury unless Defendant is enjoined from the foregoing actions. COUNT V UNFAIR COMPETITION UNDER THE COMMON LAW OF THE STATE OF NEW JERSEY 57. ERS repeats and reallages each and every allegation contained in the proceeding

paragraphs of the Complaint as if they were set forth in full herein.

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58.

Defendant, through the above-described conduct, has engaged in misleading and

deceptive practices in order to unfairly compete with ERS in violation of the common law of the State of New Jersey. 59. Defendant has and continues to, among other things, sell the Infringing Products

utilizing the identical trade dress and design elements covered by the Design Patent that is utilized by ERS in connection with ERSs Ovation Deluxe Schooler and One-K Defender helmets. In addition, Defendant is selling its IRH IR4G helmet utilizing the identical designs of the Design Patent that is exclusively licensed to and utilized by ERS. 60. Defendants unfair competitive actions as set forth above were knowing,

intentional, willful and malicious, and designed to inflict immediate and irreparable injury upon ERS as well as to cause ERS to suffer substantial damages. 61. As a direct and proximate result of Defendants actions, ERS has been harmed

in an amount to be determined at trial and will continue to be harmed and will suffer irreparable injury unless Defendant is enjoined from the foregoing actions. COUNT VI VIOLATION OF THE NEW JERSEY FAIR TRADE ACT 62. ERS repeats and reallages each and every allegation contained in the proceeding

paragraphs of the Complaint as if they were set forth in full herein. 63. ERSs claims hereunder arise under the New Jersey Fair Trade Act, N.J.S.A.

56:4-1 (the Fair Trade Act). 64. Defendants use of ERSs trade dress and design elements covered by the

Design Patent is likely to cause confusion, mistake or deception as to the source or affiliation of Defendants goods.

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65.

The aforesaid acts by Defendant constitute the appropriation of ERSs brands,

reputation and goodwill in violation of the Fair Trade Act. 66. As a direct and proximate result of Defendants actions, ERS has been harmed

in an amount to be determined at trial and will continue to be harmed and will suffer irreparable injury unless Defendant is enjoined from the foregoing actions. PRAYER FOR RELIEF WHEREFORE, ERS demands judgment in its favor and against Defendant as follows: 1. Declaring that Defendant has infringed ERSs Design Patent rights in violation

of 35 U.S.C. 271; 2. Declaring that Defendant has infringed ERSs distinctive and source identifying

trade dress associated with Defendants infringing helmets in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), and the common law of the State of New Jersey, and have unfairly competed with ERS under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), and have engaged in false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 3. That Defendant, and its members, officers, agents, servants, distributors,

affiliates, employees, attorneys and representatives and all those in privity or acting in concert with Defendant, and each of them, be permanently enjoined and restrained from, directly or indirectly: (a) Engaging in further acts that infringe upon ERSs trade dress and Design Patent rights by, among other things, manufacturing or selling the Infringing Products identified above; (b) Engaging in further acts that are likely to cause confusion as to whether Defendants helmets originate from the same source as ERSs helmets, or 16
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as to an association, affiliation or connection between ERS and Defendant or their respective products, including but not limited to the sale, marketing or manufacture of Defendants Infringing Products described herein; (c) Falsely designating the origin, sponsorship, or affiliation of Defendants products in any manner; (d) (e) Otherwise competing unfairly with ERS in any manner; Using any words, names, styles, designs, titles, designations, or marks which create a likelihood of injury to the business reputation of ERS and the goodwill associated therewith; (f) Using any trade practices whatsoever including those complained of herein, which tend to unfairly compete with or injure ERSs business and goodwill pertaining thereto; and (g) Continuing to perform in any manner whatsoever any of the acts complained of in this Complaint. 4. Declaring that Defendant has infringed ERSs rights in violation of the New

Jersey Unfair Competition Statute (N.J.S.A. 56:4-1) and the New Jersey Fair Trade Act (N.J.S.A. 56:4-1). 5. That Defendant be required to pay to ERS compensatory damages for the

injuries sustained by ERS in consequence of the unlawful acts alleged herein pursuant to 35 U.S.C. 284 and 15 U.S.C. 1117, and that such damages be trebled as provided by applicable law because of the willful and unlawful acts as alleged herein. 6. That Defendant be required to account for and pay over to ERS all gains, profits

and advantages derived by Defendant from the unlawful activities alleged herein pursuant to 35 U.S.C. 289 and 15 U.S.C. 1117.

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7.

That Defendant, pursuant to 15 U.S.C. 1118, shall deliver for destruction or

show proof of said destruction, all products, stationary, signs, advertisements, promotional flyers, cards, brochures, menus, promotional materials, packaging, labels and any other written materials in the possession, custody or control of Defendant bearing ERSs distinctive trade dress or which infringes ERSs above-referenced trade dress and Design Patent rights, together with all plates, molds, matrices and other means and materials for making or reproducing the same. 8. That Defendant be required to recall from any and all channels of distribution any

and all advertisements which include false or misleading statements about Defendants Infringing Products. 9. That Defendant be required to engage in advertising to correct the false and

misleading statements about Defendants Infringing Products. 10. That Defendant be required to pay to ERS all of its litigation expenses, including

but not limited to reasonable attorneys fees and the costs of this action pursuant to 35 U.S.C. 285 and 15 U.S.C. 1117. 11. and proper. That ERS be awarded such other and further relief as the Court may deem just

WOLFF & SAMSON PC Attorneys for Plaintiff English Riding Supply, Inc.

By: Dated: October 9, 2013

s/ Adam K. Derman ADAM K. DERMAN

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JURY DEMAND ERS demands trial by jury of all claims and defenses in this action so triable. WOLFF & SAMSON PC Attorneys for Plaintiff English Riding Supply, Inc.

By: Dated: October 9, 2013

s/ Adam K. Derman ADAM K. DERMAN

LOCAL RULE 11.2 CERTIFICATION The matter in controversy is not the subject of any other action pending in any other court or any pending arbitration or administrative proceeding. WOLFF & SAMSON PC Attorneys for Plaintiff English Riding Supply, Inc.

By: Dated: October 9, 2013

s/ Adam K. Derman ADAM K. DERMAN

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EXHIBIT A