Deckers v. Rite Aid - Complaint

Case 2:16-cv-03879-PSG-SK Document 17 Filed 07/26/16 Page 1 of 15 Page ID #:68
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Brent H. Blakely (SBN 157292)

bblakely@blakelylawgroup.com
Cindy Chan (SBN 247495)
cchan@blakelylawgroup.com
Jessica C. Covington (SBN 301816)
jcovington@blakelylawgroup.com
BLAKELY LAW GROUP
1334 Parkview Avenue, Suite 280
Manhattan Beach, California 90266
Telephone: (310) 546-7400
Facsimile: (310) 546-7401
Attorneys for Plaintiff
Deckers Outdoor Corporation
UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DECKERS OUTDOOR
CORPORATION, a Delaware
Corporation,
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Plaintiff,
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v.
RITE AID CORP., a Delaware
Corporation; DEAN STREET GROUP
LLC, a New Jersey Limited Liability
Company; and DOES 1-10, inclusive,
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Defendants.
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) CASE NO. 2:16-cv-03879-PSG (SKx)

)
) FIRST AMENDED COMPLAINT
)
) 1. TRADE DRESS INFRINGEMENT;
)
) 2. PATENT INFRINGEMENT - U.S.
)
PATENT NO. D704,425;
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) 3. TRADE DRESS INFRINGEMENT
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UNDER CALIFORNIA COMMON
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LAW;
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) 4. UNFAIR COMPETITION
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CALIFORNIA UNFAIR BUSINESS
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PRACTICES ACT, CAL. BUS. &
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PROF. CODE, 17200, ET. SEQ.;
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) 5. UNFAIR COMPETITION UNDER
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CALIFORNIA COMMON LAW
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JURY TRIAL DEMANDED
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Plaintiff Deckers Outdoor Corporation for its claims against Defendants Rite
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Aid Corp. and Dean Street Group LLC (Defendants) respectfully alleges as
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follows:
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FIRST AMENDED COMPLAINT
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JURISDICTION AND VENUE

1.
Plaintiff files this action against Defendants for trade dress infringement
and unfair competition under the Lanham Trademark Act of 1946, 15 U.S.C. 1051 et
seq. (the Lanham Act), patent infringement arising under the patent laws of the
United States, and for related claims under the statutory and common law of the state
of California. This Court has subject matter jurisdiction over the claims alleged in this
action pursuant to 28 U.S.C. 1331, 1338.
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2.
This Court has personal jurisdiction over Defendants because Defendants
do business within this judicial district.

3.
This action arises out of wrongful acts by Defendants within this judicial
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district and Plaintiff is located and has been injured in this judicial district by
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Defendants alleged wrongful acts. Venue is proper in this district pursuant to 28
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U.S.C. 1391 because the claims asserted arise in this district.
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THE PARTIES
4.
Plaintiff Deckers Outdoor Corporation (Deckers) is a corporation
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organized and existing under the laws of the state of Delaware with an office and
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principal place of business in Goleta, California. Deckers designs and markets
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footwear identified by its many famous trademarks including its UGG trademark.
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5.
Upon information and belief, Defendant Rite Aid Corp. (Rite Aid) is a
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corporation organized and existing under the laws of the state of Delaware with an
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office and principal place of business located at 30 Hunter Lane, Camp Hill,
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Pennsylvania 17011.
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6.
Upon information and belief, Defendant Dean Street Group LLC (Dean
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Street) is a limited liability company organized and existing under the laws of the
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state of New Jersey with an office and principal place of business located at 155 N.
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Dean Street, Englewood, New Jersey 07631.
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7.
Deckers is unaware of the names and true capacities of Defendants,
whether individual, corporate and/or partnership entities named herein as DOES 1

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through 10, inclusive, and therefore sues them by their fictitious names. Deckers will
seek leave to amend this complaint when their true names and capacities are
ascertained. Deckers is informed and believes and based thereon alleges that said
Defendants and DOES 1 through 10, inclusive, are in some manner responsible for the
wrongs alleged herein, and that at all times referenced each was the agent and servant
of the other Defendants and was acting within the course and scope of said agency and
employment.
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Deckers is informed and believes, and based thereon alleges, that at all
relevant times herein, Defendants and DOES 1 through 10, inclusive, knew or
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reasonably should have known of the acts and behavior alleged herein and the damages
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caused thereby, and by their inaction ratified and encouraged such acts and behavior.
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Deckers further alleges that Defendants and DOES 1 through 10, inclusive, have a
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non-delegable duty to prevent or not further such acts and the behavior described
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herein, which duty Defendants and DOES 1 through 10, inclusive, failed and/or
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refused to perform.
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ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
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A.
Deckers UGG Brand
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9.
Deckers has been engaged in the design, distribution, marketing, offering
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for sale, and sale of footwear since 1975. Deckers owns several brands of footwear
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including UGG, Koolaburra, Teva, Sanuk, and Hoka One One.
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10.
Deckers UGG brand remains one of the most recognized and relevant
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comfort shoe brands in the industry. Since 1978, when the UGG brand was founded,
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the popularity of UGG boots has steadily grown across the nation and even the
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globe. The UGG brand has always been and remains highly coveted by consumers.
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This commitment to quality has helped to propel the UGG brand to its current,
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overwhelming level of popularity and cemented its status as a luxury brand.
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11.
It has now been sixteen years since UGG boots were first featured on
Oprahs Favorite Things in the year 2000, and Oprah emphatically declared on
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national television how much she LOOOOOVES her UGG boots. The popularity of
UGG brand footwear has grown exponentially since then with celebrities including
Kate Hudson and Sarah Jessica Parker among a myriad of others regularly donning
them. UGG sheepskin boots have become a high fashion luxury item and can be
found on fashion runways around the world.
12.
Deckers UGG products are distributed and sold to consumers through
authorized retailers throughout the United States at point-of-sale and on the Internet,
including through its UGG Concept Stores and its website www.ugg.com.
B.
Defendants Infringing Activities
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13.
The present lawsuit arises from Defendants sale of boots which Deckers
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asserts infringes upon its Mini Bailey Bow design patent (U.S. Patent No. D704,425
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issued on May 13, 2014) as well as its Bailey Bow Trade Dress (hereinafter
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Infringing Products)
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Design Patent D704,425
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UGG Mini Bailey Bow

Boot
Defendants Infringing Boot
Upon information and belief, Rite Aid is a company engaged in the retail
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sale of a wide variety of products with retail stores nationwide, including hundreds of
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retail locations in the state of California, a number of which are located in this judicial
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district.
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15.
Infringing Products have been offered for sale and sold at Rite Aid retail
stores, including those within this judicial district.

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Upon information and belief, Deckers herein alleges that Dean Street
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participated in the manufacture, production, design, advertisement, offering for sale,
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and/or sale of said Infringing Products at Rite Aid.
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17.
Deckers is informed and believes and herein alleges that Defendants are
competitors and have copied Deckers boot design in an effort to exploit Deckers
reputation in the market.
18.
Upon information and belief, Defendants may have sold additional
products that infringe upon Deckers intellectual property. Deckers may seek leave to
amend as additional information becomes available through discovery.
19.
Deckers has not granted a license or any other form of permission to
Defendants with respect to its trademarks, design patents, trade dresses, or other
intellectual property.
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Deckers is informed and believes and herein alleges that Defendants have
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acted in bad faith and that Defendants acts have misled and confused and were
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intended to cause confusion, or to cause mistake, or to deceive as to the affiliation,
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connection, or association of Defendants Infringing Products with Deckers, or as to
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the origin, sponsorship, or approval of Defendants Infringing Products by Deckers.
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FIRST CLAIM FOR RELIEF
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(Trade Dress Infringement 15 U.S.C. 1125(a))
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Deckers incorporates herein by reference the averments of the preceding
paragraphs as though fully set forth herein.
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22.
The UGG Bailey Bow boot was introduced in 2011 and the Bailey
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Bow Trade Dress is unique and distinctive, consisting of a combination of the
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following non-functional elements:
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Classic suede boot styling made famous by the UGG brand;
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A smooth boot shaft that has a vertical slit opening at the back of the
Exposed fleece-type lining edging the top of the boot shaft and along the
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shaft;
medial and lateral side edges of the vertical slit opening;
A tongue at the back of the boot shaft, underlying and closing the vertical
slit opening; and

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One or more bows prominently featured at the rear of the boot shaft
(depending on the height of the boot) extending between the medial and lateral sides of
the shaft over the tongue.
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(hereinafter Bailey Bow Trade Dress)

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The Bailey Bow Trade Dress, which is a composite of the above-
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referenced features, is non-functional in its entirety, visually distinctive, and is unique
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in the footwear industry.
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The design of the Bailey Bow Trade Dress is neither essential to its use or
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purpose nor does it affect the cost or quality of the boot. There are numerous other
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designs available that are equally feasible and efficient, none of which necessitate
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copying or imitating the Bailey Bow Trade Dress. The aforesaid combination of
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features provides no cost advantages to the manufacturer or utilitarian advantages to
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the consumer. These features, in combination, serve only to render Deckers UGG
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Bailey Bow boots distinct and recognizable as goods originating from Deckers
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UGG brand.
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The Bailey Bow Trade Dress is an original design by Deckers and has
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achieved a high degree of consumer recognition and secondary meaning, which serves
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to identify Deckers as the source of footwear featuring said trade dress.
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The Bailey Bow Trade Dress is one of the most well-recognized and
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commercially successful styles of Deckers UGG brand of footwear, having been
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featured on Deckers advertising and promotional materials as well as in various trade
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publications. Furthermore, the Bailey Bow Trade Dress has been featured in
connection with various celebrities, has received unsolicited media attention, and has
graced the pages of many popular magazines nationwide and internationally.
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Deckers has spent substantial time, effort, and money in designing,
developing, advertising, promoting, and marketing the UGG brand and its line of
footwear embodying the Bailey Bow Trade Dress. Deckers spends millions of dollars
annually on advertising of UGG products, which include products bearing the Bailey
Bow Trade Dress.
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Deckers has sold in excess of a hundred million dollars worth of UGG
products bearing the Bailey Bow Trade Dress.

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Due to its long use, extensive sales, and significant advertising and
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promotional activities, Deckers Bailey Bow Trade Dress has achieved widespread
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acceptance and recognition among the consuming public and trade throughout the
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United States.
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There are numerous other boot designs in the footwear industry, none of
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which necessitate copying or imitating the Bailey Bow Trade Dress. However, due to
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the popularity and consumer recognition achieved by the Bailey Bow Trade Dress, said
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design has been the subject of infringement by third-parties, including Defendants.
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Deckers is informed and believes and herein alleges that Defendants are
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competitors and have copied Deckers Bailey Bow Trade Dress in an effort to exploit
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Deckers reputation in the market.
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32.
The Infringing Products produced, distributed, advertised and offered for
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sale by Defendants bear nearly identical reproductions of the Bailey Bow Trade Dress,
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such as to cause a likelihood of confusion as to the source, sponsorship or approval by
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Deckers of Defendants products.
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Defendants use of Deckers Bailey Bow Trade Dress is without Deckers
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permission or authority and in total disregard of Deckers rights to control its
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intellectual property.
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Defendants use of Deckers Bailey Bow Trade Dress is likely to lead to
and result in confusion, mistake or deception, and is likely to cause the public to
believe that Defendants products are produced, sponsored, authorized, or licensed by
or are otherwise connected or affiliated with Deckers, all to the detriment of Deckers.
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Deckers has no adequate remedy at law.
36.
In light of the foregoing, Deckers is entitled to injunctive relief
prohibiting Defendants from using Deckers Bailey Bow Trade Dress, or any designs
confusingly similar thereto, and to recover all damages, including attorneys fees, that
Deckers has sustained and will sustain, and all gains, profits and advantages obtained
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by Defendants as a result of their infringing acts alleged above in an amount not yet
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known, as well as the costs of this action.
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SECOND CLAIM FOR RELIEF
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(Patent Infringement - U.S. Patent No. D704,425)
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Deckers is the owner of numerous design patents to the various styles of
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footwear it offers under its UGG brand. These design patents include but are not
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limited to the Mini Bailey Bow boot (U.S. Patent No. D704,425 issued on May 13,
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2014), a true and correct copy of which is attached hereto and incorporated herein as
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Exhibit A ( 425 Patent).
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39.
Deckers is the owner by assignment of all right, title and interest in and to
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the 425 Patent.
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40.
Defendants have used, caused to be produced, distributed, advertised,
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marketed, offered for sale, sold within the United States, and/or has imported into the
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United States footwear that is substantially similar to the 425 Patent in direct violation
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of 35 U.S.C. 271. An example of the Infringing Products is shown at the far right of
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the 425 Patent drawing and genuine UGG Mini Bailey Bow boot below:
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Design Patent D704,425
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UGG Mini Bailey Bow

Boot
Defendants Infringing Boot
Defendants aforesaid infringing acts are without Deckers permission or
authority and are in total disregard of Deckers right to control its intellectual property.
42.
As a direct and proximate result of Defendants infringing conduct,
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Deckers has been injured and will continue to suffer injury to its business and
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reputation unless Defendants are restrained by this Court from infringing Deckers
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425 Patent.
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43.
Defendants acts have damaged and will continue to damage Deckers, and
Deckers has no adequate remedy at law.

44.
Deckers marks all footwear products embodying the design of the 425
Patent with Pat. No. 704,425 on a product label in compliance with 35 U.S.C. 287.
45.
Given the widespread popularity and recognition of Deckers Mini Bailey
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Bow boot and the patent notice provided on the products themselves, Deckers avers
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and hereon alleges that Defendants had pre-suit knowledge of Deckers rights to the
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425 Patent and have intentionally copied said design on their own brand of products
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in an effort to pass them off as if they originated, are associated with, are affiliated
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with, are sponsored by, are authorized by, and/or are approved by Deckers.
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46.
On information and belief, Defendants acts herein complained of
constitute willful acts and intentional infringement of the 425 Patent.

47.
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prohibiting Defendants from infringing the 425 Patent and to recover damages
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adequate to compensate for the infringement, including Defendants profits pursuant to
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35 U.S.C. 289. Deckers is also entitled to recover any other damages as appropriate
pursuant to 35 U.S.C. 284.
THIRD CLAIM FOR RELIEF
(Trade Dress Infringement under California Common Law)
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48.

49.
Defendants infringement of the Bailey Bow Trade Dress constitutes
common law trade dress infringement in violation of the common law of the state of
California.
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50.
Defendants unauthorized use of the Bailey Bow Trade Dress has caused
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and is likely to cause confusion as to the source of Defendants products, all to the
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detriment of Deckers.
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51.
Defendants acts are willful, deliberate, and intended to confuse the public
and to injure Deckers.

52.
Deckers has no adequate remedy at law to compensate it fully for the
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damages that have been caused and which will continue to be caused by Defendants
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infringing conduct, unless they are enjoined by this Court.
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53.
The conduct herein complained of was extreme, outrageous, and was
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inflicted on Deckers in reckless disregard of Deckers rights. Said conduct was
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despicable and harmful to Deckers and as such supports an award of exemplary and
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punitive damages in an amount sufficient to punish and make an example of
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Defendants, and to deter them from similar such conduct in the future.
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54.
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prohibiting Defendants from infringing the Bailey Bow Trade Dress, and to recover all
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damages, including attorneys fees, that Deckers has sustained and will sustain, and all
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gains, profits and advantages obtained by Defendants as a result of their infringing acts
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alleged above in an amount not yet known, and the costs of this action.
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FOURTH CLAIM FOR RELIEF
(Unfair Competition California Unfair Business Practices Act, Cal. Bus. & Prof.
Code, 17200, et. seq.)
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55.

56.
Defendants appropriation, adoption and use of the Bailey Bow Trade
Dress and 425 Patent, or in connection with the sale and offering for sale of footwear,
is likely to confuse or mislead consumers into believing that Defendants goods are
authorized, licensed, affiliated, sponsored, and/or approved by Deckers, thus
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constituting a violation of the California Unfair Business Practices Act, Cal. Bus. &
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Prof. Code, 17200, et. seq.
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57.
The deceptive, unfair and fraudulent practices set forth herein have been
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undertaken with knowledge by Defendants willfully with the intention of causing harm
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to Deckers and for the calculated purpose of misappropriating Deckers goodwill and
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business reputation.
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58.
Defendants use of Deckers Bailey Bow Trade Dress and 425 Patent has
deprived Deckers of the right to control the use of its intellectual property.
59.
As a direct and proximate result of Defendants unlawful infringement,
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Deckers has suffered damages and will continue to suffer damages in an amount that is
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not presently ascertainable but will be proven at trial. Deckers is entitled to all
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available relief provided for in California Unfair Business Practices Act, Cal. Bus. &
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Prof. Code, 17200, et. seq. including permanent injunctive relief.
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60.
Defendants committed the acts alleged herein intentionally, fraudulently,
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maliciously, willfully, wantonly and oppressively, with intent to injure Deckers in its
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business and with conscious disregard for Deckers rights, thereby justifying awards of
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punitive and exemplary damages in amounts sufficient to punish and to set an example
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for others.
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FIFTH CLAIM FOR RELIEF
(Unfair Competition Under California Common Law)
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61.

62.
Defendants infringement of the Bailey Bow Trade Dress and 425 Patent
constitutes unfair competition in violation of the common law of the state of
California.
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63.
Defendants are competitors of Deckers and have copied Deckers boot
designs in an effort to exploit Deckers reputation in the market.

64.
Defendants infringing acts were intended to capitalize on Deckers
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goodwill associated therewith for Defendants own pecuniary gain. Deckers has
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expended substantial time, resources and effort to obtain an excellent reputation for its
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brands of footwear. As a result of Deckers efforts, Defendants are now unjustly
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enriched and are benefiting from property rights that rightfully belong to Deckers.
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65.
Defendants acts are willful, deliberate, and intended to confuse the public
and to injure Deckers.

66.
Deckers has no adequate remedy at law to compensate it fully for the
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damages that have been caused and which will continue to be caused by Defendants
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infringing conduct, unless they are enjoined by this Court.
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67.
The conduct herein complained of was extreme, outrageous, and was
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inflicted on Deckers in reckless disregard of Deckers rights. Said conduct was
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despicable and harmful to Deckers and as such supports an award of exemplary and
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punitive damages in an amount sufficient to punish and make an example of
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Defendants, and to deter them from similar such conduct in the future.
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68.
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prohibiting Defendants from infringing the Bailey Bow Trade Dress and 425 Patent
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and to recover all damages, including attorneys fees, that Deckers has sustained and
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will sustain, and all gains, profits and advantages obtained by Defendants as a result of
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their infringing acts alleged above in an amount not yet known, and the costs of this
action.
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PRAYER FOR RELIEF

WHEREFORE, Plaintiff Deckers Outdoor Corporation respectfully prays for
judgment against Defendants Rite Aid Corp. and Dean Street Group LLC as follows:
1.
A Judgment that Defendants have infringed Deckers Bailey Bow Trade
Dress and 425 Patent and that said infringement was willful;
2.
An order granting temporary, preliminary and permanent injunctive relief
restraining and enjoining Defendants, their agents, servants, employees, officers,
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associates, attorneys, and all persons acting by, through, or in concert with any of them
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from using Deckers intellectual property, including, but not limited to:
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a.
manufacturing, importing, advertising, marketing, promoting,
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supplying, distributing, offering for sale, or selling the Infringing Products or any other
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products which bear Deckers Bailey Bow Trade Dress and/or any designs confusingly
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similar thereto, as well as any products bearing designs that infringe upon the 425
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Patent and/or the overall appearance thereof;
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b.
engaging in any other activity constituting unfair competition with
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Deckers, or acts and practices that deceive consumers, the public, and/or trade,
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including without limitation, the use of designations and design elements used or
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owned by or associated with Deckers; and
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c.
committing any other act which falsely represents or which has the
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effect of falsely representing that the goods and services of Defendants are licensed by,
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authorized by, offered by, produced by, sponsored by, or in any other way associated
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with Deckers;
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3.
Ordering Defendants to recall from any distributors and retailers and to
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deliver to Deckers for destruction or other disposition all remaining inventory of all
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Infringing Products and related items, including all advertisements, promotional and
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marketing materials therefore, as well as means of making same;
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4.
Ordering Defendants to file with this Court and serve on Deckers within
thirty (30) days after entry of the injunction a report in writing, under oath setting forth
in detail the manner and form in which Defendants have complied with the injunction;
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5.
Ordering an accounting by Defendants of all gains, profits and advantages
derived from its wrongful acts pursuant to 15 U.S.C. 1117(a) and 35 U.S.C. 289;
6.
Awarding Deckers all of Defendants profits and all damages sustained by
Deckers as a result of Defendants wrongful acts, and such other compensatory
damages as the Court determines to be fair and appropriate;
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7.
Awarding treble damages in the amount of Defendants profits or
Deckers damages, whichever is greater, for willful infringement;
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8.
Awarding applicable interest, costs, disbursements and attorneys fees;
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9.
Awarding Deckers punitive damages in connection with its claims under
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California law; and

10.
Such other relief as may be just and proper.
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Dated:
July 26, 2016
BLAKELY LAW GROUP

By:
_______________________________
Brent H. Blakely
Cindy Chan
Jessica C. Covington
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DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff Deckers
Outdoor Corporation hereby demands a trial by jury as to all claims in this litigation.
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Dated:
July 26, 2016
BLAKELY LAW GROUP
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By:
_______________________________
Brent H. Blakely
Cindy Chan
Jessica C. Covington
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Deckers v. Rite Aid - Complaint

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Deckers v. Rite Aid - Complaint

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Case 2:16-cv-03879-PSG-SK Document 17 Filed 07/26/16 Page 1 of 15 Page ID #:68

Brent H. Blakely (SBN 157292)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

) CASE NO. 2:16-cv-03879-PSG (SKx)

Case 2:16-cv-03879-PSG-SK Document 17 Filed 07/26/16 Page 2 of 15 Page ID #:69

JURISDICTION AND VENUE

action pursuant to 28 U.S.C. 1331, 1338.

This Court has personal jurisdiction over Defendants because Defendants

do business within this judicial district.

Defendants alleged wrongful acts. Venue is proper in this district pursuant to 28

U.S.C. 1391 because the claims asserted arise in this district.

Plaintiff Deckers Outdoor Corporation (Deckers) is a corporation

principal place of business in Goleta, California. Deckers designs and markets

Dean Street, Englewood, New Jersey 07631.

Deckers is unaware of the names and true capacities of Defendants,

whether individual, corporate and/or partnership entities named herein as DOES 1

Case 2:16-cv-03879-PSG-SK Document 17 Filed 07/26/16 Page 3 of 15 Page ID #:70

ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

Deckers UGG Brand

Deckers has been engaged in the design, distribution, marketing, offering

including UGG, Koolaburra, Teva, Sanuk, and Hoka One One.

overwhelming level of popularity and cemented its status as a luxury brand.

Case 2:16-cv-03879-PSG-SK Document 17 Filed 07/26/16 Page 4 of 15 Page ID #:71

found on fashion runways around the world.

Deckers UGG products are distributed and sold to consumers through

Defendants Infringing Activities

Design Patent D704,425

UGG Mini Bailey Bow

Defendants Infringing Boot

stores, including those within this judicial district.

participated in the manufacture, production, design, advertisement, offering for sale,

and/or sale of said Infringing Products at Rite Aid.

Case 2:16-cv-03879-PSG-SK Document 17 Filed 07/26/16 Page 5 of 15 Page ID #:72

reputation in the market.

Upon information and belief, Defendants may have sold additional

amend as additional information becomes available through discovery.

Deckers has not granted a license or any other form of permission to

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

connection, or association of Defendants Infringing Products with Deckers, or as to

the origin, sponsorship, or approval of Defendants Infringing Products by Deckers.

FIRST CLAIM FOR RELIEF

(Trade Dress Infringement 15 U.S.C. 1125(a))

Deckers incorporates herein by reference the averments of the preceding

paragraphs as though fully set forth herein.

Bow Trade Dress is unique and distinctive, consisting of a combination of the

following non-functional elements:

Classic suede boot styling made famous by the UGG brand;

medial and lateral side edges of the vertical slit opening;

slit opening; and

Case 2:16-cv-03879-PSG-SK Document 17 Filed 07/26/16 Page 6 of 15 Page ID #:73

the shaft over the tongue.

(hereinafter Bailey Bow Trade Dress)

The Bailey Bow Trade Dress, which is a composite of the above-

referenced features, is non-functional in its entirety, visually distinctive, and is unique

in the footwear industry.

features provides no cost advantages to the manufacturer or utilitarian advantages to

to identify Deckers as the source of footwear featuring said trade dress.

commercially successful styles of Deckers UGG brand of footwear, having been

featured on Deckers advertising and promotional materials as well as in various trade

Case 2:16-cv-03879-PSG-SK Document 17 Filed 07/26/16 Page 7 of 15 Page ID #:74

graced the pages of many popular magazines nationwide and internationally.

Deckers has spent substantial time, effort, and money in designing,

Bow Trade Dress.