Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 1 of 9

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

9 CABOT HOSIERY MILLS, INC.,

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Plaintiff,
vs.

12 CLOUDLINE APPAREL, LLC,

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Defendant.

) No.
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) COMPLAINT
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) JURY DEMAND
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Plaintiff Cabot Hosiery Mills, Inc. (Plaintiff), through its attorneys, complaining of
Defendant Cloudline Apparel, LLC (Defendant), alleges as follows:

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STATEMENT OF THE CASE
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1.
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This is an action for injunctive relief and damages under the Lanham Act and

common law based on Defendants unlawful adoption and use of a design mark that bears
substantial similarity to Plaintiffs logo, a federally registered trademark.

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THE PARTIES
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2.

Cabot Hosiery Mills, Inc. is a corporation organized and existing under the laws

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of the State of Vermont, with its principal address at 364 Whetstone Drive, P.O. Box 307,
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Northfield, Vermont 05663.
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3.

Upon information and belief, Cloudline Apparel, LLC, is a limited liability

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company organized and existing under the laws of the State of Washington, whose registered
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COMPLAINT -- 1

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701

Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 2 of 9

1 agent is Joseph Shaw, 901 5th Ave. N., #214, Seattle, Washington 98109.
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JURISDICTION AND VENUE

4.

Subject matter jurisdiction over the Lanham Act claims in this action is conferred

4 upon the Court pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331, 1338 and 1367.
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5.

This Court has personal jurisdiction over Defendant, which transacts business in

6 this judicial district.

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6.

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) because

8 Defendant resides and does business in this judicial district and/or a substantial part of the events
9 or omissions giving rise to the claims in this Complaint occurred in this judicial district.
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FACTS AND ALLEGATIONS COMMON TO ALL CLAIMS

7.

Plaintiff is the owner of U.S. Reg. No. 3219087 on the Supplemental Register for

12 a design mark consisting of three mountain peaks (the Mountain Logo) for Mens, Womens
13 and Childrens Hosiery in Class 25. The Mountain Logo registered on March 3, 2007, and had a
14 date of first use on June 2, 2004, with a date of first use in commerce of July 12, 2004. The
15 registration certificate for U.S. Reg. No. 3219087 is attached as Exhibit 1.
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8.

Plaintiff is also the owner of U.S. Reg. No. 4490538 on the Principal Register for

17 the Mountain Logo for Hosiery; Socks in Class 25, which mark registered on March 4, 2014,
18 with a date of first use on June 2, 2004, with a date of first use in commerce of July 12, 2004.
19 The registration certificate for U.S. Reg. No. 4490538 is attached as Exhibit 2. The Mountain
20 Logo is pictured below.
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9.

Since at least as early as June 2, 2004, Plaintiff has continually advertised,

marketed and sold clothing under the Mountain Logo, has invested substantial resources in
advertising and promoting its goods bearing the Mountain Logo, and has acquired substantial

COMPLAINT -- 2

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701

Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 3 of 9

1 goodwill and notoriety under its Mountain Logo.

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10.

Plaintiff, which does business under the name Darn Tough Vermont, is a well-

3 known and highly respected company in the hosiery industry. Plaintiff and its socks have been
4 featured in publications such as Runners World magazine, the New York Times and the Wall
5 Street Journal. Plaintiffs socks sell in many national and regional chains and on national and
6 regionally-based websites such as amazon.com, rei.com, backcountry.com, shoebuy.com,
7 getzs.com, jaxmercantile.com, socksaddict.com, and thegrommet.com.
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11.

Plaintiffs Mountain Logo registrations are not limited by channels of trade or

9 classes of purchasers.
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12.

Upon information and belief, since in or around May, 2015, Defendant has been

11 manufacturing, distributing and selling socks bearing a logo that is substantially similar to the
12 Mountain Logo (the Infringing Logo).
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Both the Mountain Logo and the Infringing Logo show similarly styled mountain

14 peaks, the Mountain Logo consisting of three mountain peaks, and the Infringing Logo consisting
15 of two mountain peaks. The logos appear in the same location on the parties respective products,
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COMPLAINT -- 3

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701

Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 4 of 9

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14.

Plaintiff and Defendant use the same channels of advertising. Like Plaintiff,

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Defendant advertises that its products are made of merino wool, are manufactured in the United
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States, and come with an unconditional guarantee.
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15.

Plaintiffs and Defendants respective goods are being offered and sold, and will

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continue to be offered and sold, through the same channels of trade and purchased by the same
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class of purchasers. Defendant sells hiking socks for men, women and children. Plaintiff also
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sells hiking socks, among other products, for men, women and children.
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16.

Plaintiffs customers, people in the trade and the public in general are likely to be

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confused, mistaken or deceived as to the origin, affiliation, endorsement or sponsorship of the
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goods sold and marketed by Defendant bearing the Infringing Logo, and misled into believing
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that such goods are produced, offered or sold by, or emanate from, or are in some way associated
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with Plaintiff, to the damage and detriment of Plaintiff, its good will and reputation.
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17.

Defendant is and has been on constructive notice of Plaintiffs prior rights in the

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Mountain Logo by virtue of the subsistence of the Mountain Logo registrations.
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COMPLAINT -- 4

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701

Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 5 of 9

First Claim: Federal Trademark Infringement

(15 U.S.C. 1114-1117; Lanham Act 32-35)

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Plaintiff realleges and incorporates by reference each of the allegations contained

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in paragraphs 1 through 17 of this Complaint.
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19.
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Without Plaintiffs consent, Defendant has used and is using a mark or

designation, to wit, the Infringing Logo, that is confusingly similar to Plaintiffs Mountain Logo.

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20.

Defendants acts of trademark infringement have been and are being committed

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willfully and with the intent to cause confusion, mistake or deception in violation of 15 U.S.C.
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1114.
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21.

As a direct and proximate result of Defendants infringing activities, Plaintiff has

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suffered or is likely to suffer damages, including without limitation irreparable damage to its
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business reputation and goodwill.
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22.
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Unless enjoined from using the Infringing Logo, Defendants infringing conduct

as alleged herein will continue to cause irreparable harm and injury to Plaintiffs business and

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goodwill for which there is no adequate remedy at law.
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23.

Defendants conduct has also caused and, unless enjoined, will continue to cause

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inevitable public confusion for which there is no adequate remedy at law.
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24.

Consequently, Plaintiff is entitled to injunctive relief pursuant to 15 U.S.C.

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Pursuant to 15 U.S.C. 1117, Plaintiff is entitled to recover damages in an

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1116.
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amount to be determined at trial, including but not limited to the profits earned by Defendant
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from its infringing conduct.
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26.

Defendants trademark infringement as alleged herein is an exceptional case and

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undertaken willfully, thereby entitling Plaintiff to receive three times its actual damages or three
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times Defendants profits, whichever is greater, and to an award of attorneys fees under 15

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U.S.C. 1117(a) and (b).
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COMPLAINT -- 5

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701

Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 6 of 9

27.

Pursuant to 15 U.S.C. 1118, Plaintiff is entitled to the destruction of all

2 products, signs, labels, packages, advertisements, brochures, hang tags, web pages and other
3 items, tangible and intangible, that bear the Infringing Logo and are in the possession or under
4 the control of Defendant.
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Second Claim: False Designation of Origin, Unfair Competition, False Advertising

(15 U.S.C. 1125(a); Lanham Act 43(a))
28.

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in paragraphs 1 through 26 of this Complaint.

29.

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1125(a)(1).
30.

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Defendants use of a mark or designation that is confusingly similar to Plaintiffs

Mountain Logo, to wit, the Infringing Logo, is likely to cause confusion, mistake or deception by
or in the public and persons in the trade as to the affiliation, connection, association, origin,
sponsorship or approval of Defendants and Plaintiffs goods, to the detriment of Plaintiff and in
violation of 15 U.S.C. 1125(a)(1).
31.

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Defendants conduct complained of herein constitutes the use of symbols or

devices tending falsely to describe the infringing product within the meaning of 15 U.S.C.

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Plaintiff realleges and incorporates by reference each of the allegations contained

Defendants conduct was undertaken willfully and with the intent to cause

confusion, mistake and deception in the trade and on the part of persons in the trade and the
public.
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Defendants conduct has damaged Plaintiffs business reputation and good will.

33.

Defendants conduct has caused and, unless enjoined, will continue to cause

irreparable harm and injury to Plaintiffs business reputation and goodwill for which there is no
adequate remedy at law.
34.

Defendants conduct has caused and, unless enjoined, will continue to cause

inevitable confusion in the trade and on the part of the public, for which there is no adequate
remedy at law.

COMPLAINT -- 6

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701

Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 7 of 9

35.

Plaintiff is therefore entitled to injunctive relief pursuant to 15 U.S.C. 1116.

36.

Pursuant to 15 U.S.C. 1117, Plaintiff is entitled to recover damages in an

3 amount to be determined at trial, including but not limited to the profits earned by Defendant
4 from its use of a mark or designation confusingly similar to Plaintiffs Mountain Logo.
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37.

Defendants trademark infringement as alleged herein is an exceptional case and

6 undertaken willfully, thereby entitling Plaintiff to receive three times its actual damages or three
7 times Defendants profits, whichever is greater, and to an award of attorneys fees under 15
8 U.S.C. 1117(a) and 1117(b).
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38.

Pursuant to 15 U.S.C. 1118, Plaintiff is entitled to the destruction of all

10 products, signs, labels, packages, advertisements, brochures, hang tags, web pages and other
11 items, tangible and intangible, that bear the Infringing Logo and are in the possession or under
12 the control of Defendant.
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Third Claim: Common Law Unfair Competition and False Designation of Origin
39.

Plaintiff realleges and incorporates by reference each of the allegations contained

15 in paragraphs 1 through 37 of this Complaint.

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40.

Plaintiff has expended substantial time, resources and effort to develop and obtain

17 an excellent reputation and good will for itself and its Mountain Logo.
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41.

Defendant has knowingly and willfully adopted a confusingly similar mark in an

19 unlawful effort to capitalize on Plaintiffs goodwill for Defendants own pecuniary gain.
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42.

Defendants unlawful adoption and use of the Infringing Logo is calculated and

21 likely to confuse, deceive and mislead the trade and consumers into believing that its goods and
22 services originated or were authorized by Plaintiff.
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43.

Defendants unlawful adoption and use of the Infringing Logo has caused and is

24 likely to continue to cause confusion as to origin, affiliation, endorsement or sponsorship of

25 Defendants goods and services, all to Plaintiffs detriment.
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COMPLAINT -- 7

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701

Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 8 of 9

44.

Upon information and belief, Defendant has obtained gains, profits and

2 advantages as a result of its impermissible and unlawful use of the Infringing Logo in an amount
3 not yet determined or ascertainable.
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45.

Defendants acts as alleged in this Complaint constitute unfair competition and

5 will, unless enjoined by this Court, result in (a) damage to and destruction and/or diversion of
6 Plaintiffs goodwill in its Mountain Logo, and (b) the unjust enrichment of Defendant.
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DEMAND FOR JURY TRIAL

46.

Plaintiff hereby demands a jury trial on all issues so triable.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this Court enter judgment against Defendant as

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(a)

Entering a preliminary and permanent injunction against Defendant from (1) using

13 the Infringing Logo; and (2) engaging in any other act that constitutes trademark infringement,
14 unfair competition or false advertising in violation of Plaintiffs rights;
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(b)

Requiring Defendant to take such action as may be directed by the Court for the

16 purpose of attempting to alleviate or remedy confusion among consumers caused by Defendants

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(c)

Awarding Plaintiff damages pursuant to 15 U.S.C. 1117(a) sufficient to

19 compensate Plaintiff for Defendants false designation of origin and unfair competition through
20 its use of the Infringing Logo;
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(d)

Ordering Defendant to account to Plaintiff for its profits derived by reason of its

22 misappropriation of the Plaintiffs Mountain Logo and Defendants use of the Infringing Logo;
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(e)

Pursuant to 15 U.S.C. 1117, awarding Plaintiff the greater of three times

24 Defendants profits or three times any damages sustained by Plaintiff, whichever is greater;
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COMPLAINT -- 8

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701

Case 2:16-cv-00043 Document 1 Filed 01/11/16 Page 9 of 9

(f)

Pursuant to 15 U.S.C. 1117, awarding Plaintiff its costs, expenses and attorneys

2 fees incurred with respect to this action;

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(g)

Pursuant to 15 U.S.C. 1118, ordering the destruction of all products, signs,

4 labels, packages, advertisements, brochures, hang tags, web pages and other items, tangible and
5 intangible, that bear the Infringing Logo and are in the possession or under the control of
6 Defendants;
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(h)

Awarding Plaintiff both pre-judgment and post-judgment interest on any monies

8 to be paid by Defendant;
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(i)

Awarding Plaintiff its costs, expenses and attorneys fees incurred with respect to

10 this action; and

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(j)

Awarding such other and further relief as to the Court seems just, proper and

12 equitable.
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Dated this 11th day of January, 2016.

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By /s/ Michael G. Atkins

Michael G. Atkins
WSBA# 26026
Atkins Intellectual Property, PLLC
93 South Jackson Street #18483
Seattle, WA 98104-2818
T (206) 628-0983/F (206) 299-3701
Email: mike@atkinsip.com

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By /s/ Gordon E. R. Troy

Gordon E. R. Troy
Pro hac vice application pending
Gordon E. R. Troy, PC
5203 Shelburne Road
Shelburne, VT 05482
T (802) 881-0640/F (646) 588-1962
Email: gtroy@webtm.com

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Attorneys for Cabot Hosiery Mills, Inc.

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COMPLAINT -- 9

ATKINS IP
113 Cherry Jackson Street #18483
Seattle, WA 98104-2205
(206) 628-0983/Fax: (206) 299-3701