Professional Documents
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v.
Defendant.
INTRODUCTION
1. This action arises from the unfair and deceptive business practices of Defendant
Bose Corporation and its marketing, distribution and sale of in-ear headphones that infringe the
2. Founded in 2013, Doppler Labs has grown to become a leading innovator in in-
ear technology, specifically in-ear headphones that allow for transforming and mixing of real-
world sound (as Doppler calls it, Real World Sound Control and Layered Listening) that is
implemented through a complex system of hardware and software that did not exist in a mass
consumer product before Doppler Labs introduction of the concept. In 2015, Doppler Labs
launched a Kickstarter campaign to bring this real-world sound control to millions of people who
wanted something more than what an ordinary sound-isolating headphone can provide.
3. In June 2015, Doppler Labs released its Here Active Listening system, including
Here Buds wireless earbuds and a companion mobile application. The Here Active Listening
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system was named one of Time Magazines Best Inventions of 2015, alongside major technology
releases like the Tesla Model X, Google Cardboard and Apple iPad Pro, and in 2016, won both
Best of Show at South by Southwest (SXSW), the most prestigious award given at SXSW, as
well as the Cannes Lions Gold for Product Design. In 2016, Doppler Labs shipped nearly
4. Building upon this success, Doppler Labs embarked on a mission to refine its
technology, and has now launched its next-generation, flagship product the highly acclaimed
Here One listening system with Here Buds wireless earbuds which has been listed as the most
anticipated tech of 2017 by C|NET, and identified by Newsweek as technology to look forward
to in 2017, alongside the Tesla Model 3. Doppler Labs has now raised over $50 million from
some of the worlds preeminent venture capitalists, to bring its innovative technology to market
and has spent years preparing for the launch of its Here One listening system with Here Buds
wireless earbuds.
5. Doppler Labs announced the Here One listening system with Here Buds wireless
earbuds a pair of wireless smart earbuds that combine Doppler Labs proprietary real-world
sound control with the ability to stream music and take phone calls in June 2016. Doppler
Labs Here Buds wireless earbuds are renowned for their ability to control the volume of
ambient sound and their ability to enhance human speech through the use of directional sound
processing and a suite of proprietary Smart Noise Filters. Unlike normal headphones, Here Buds
wireless earbuds also allow users to simultaneously stream audio and blend real world sound so
they can listen to music while interacting with a colleague, or layer live commentary over a game
while still experiencing a cheering crowd. Since its announcement, Doppler Labs has received
over 10,000 orders for the Here One listening system with Here Buds wireless earbuds and has
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established major big box retail relationships to further expand the product rollout in Q2 2017.
6. There can be no doubt that Doppler Labs was on Boses radar long before Bose
introduced its infringing Hearphones product. Boses Senior Manager of Idea & Portfolio
Management, Chris Miller, was one of the first backers of Doppler Labs Kickstarter
campaign, pledging $179 on June 2, 2015 the day the Kickstarter campaign went live to be
one of the first to get Doppler Labs Here Active Listening system. Now, on information and
belief, it appears that this was not an investment by Mr. Miller simply to get a new and
differentiated type of audio product than Bose could deliver, for his personal use, but rather an
attempt to gain early access to a competitors technology. Mr. Millers Here Active Listening
system purchase was shipped on February 10, 2016, at which time Mr. Miller purchased a
second Here Active Listening system days later, affording Bose a long period of time to
understand the design and features of the Here Active Listening system, wireless earbuds, and
7. Then, with the announcement of Doppler Labs Here One listening system with
Here Buds wireless earbuds in June 2016, Mr. Miller was the 35th person to place a pre-order and
placed his order within minutes of the product announcement. In fact, Mr. Miller contacted
Doppler Labs customer support department on June 28 and June 30, 2016 to explicitly confirm
that his order would be one of the first Here One listening systems with Here Buds wireless
earbuds to ship to pre-order customers. Again, on information and belief, it now appears that
Mr. Miller was doing this to gain early access to a competitors technology.
trademark application for its infringing mark Hearphones, in international class 009. In its
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trademark application, and with knowledge of Dopplers products and marks, Bose told the U.S.
Patent and Trademark Office that it intended to use the Hearphones mark in connection with the
sale of headphones and software for controlling devices that enhance or amplify ambient
sounds. On information and belief, Bose filed this trademark application knowing it intended to
sell a headphone product in competition with Doppler Labs. As of the filing of the present
complaint, the U.S. Patent and Trademark Office has refused registration of Boses Hearphones
mark.
PARTIES
9. Plaintiff Doppler Labs, Inc. is a Delaware Corporation, having its principal place
10. Defendant Bose, upon information and belief, is a Delaware corporation, having a
principle place of business at The Mountain, Framingham, MA 01701. Bose advertises, markets,
demonstrates, offers to sell and sells its accused Hearphones product at the Bose Showcase Store
located at the Burlington Mall, 75 Middlesex Turnpike, Burlington, MA 01803, and advertises,
markets, and demonstrates its accused Hearphones product throughout the United States,
website.
11. The Court has jurisdiction over this action pursuant to 28 U.S.C. 1331,
12. This Court has personal jurisdiction over Bose under Massachusetts General
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Law Chapter 223A, 3 because Bose, among other things, transacts business in, and advertises,
markets, demonstrates, offers to sell and sells headphones infringing Doppler Labs trademarks
FACTUAL ALLEGATIONS
14. Since at least 2015, Doppler Labs has been using the Here Buds mark in
connection with its advertising, marketing, and demonstrations of its Here Buds wireless
earbuds. The Here Buds mark is unique and recognizable, and has gained good will and
15. Doppler Labs has invested tens of millions of dollars in the development and
promotion of the Here Active Listening system, Here One listening system, and Here Buds
wireless earbuds. As a result of Doppler Labs extensive promotion of the Here Active Listening
system, the Here One listening system, the Here Buds wireless earbuds, the Here Buds mark, its
continuous and exclusive use of the unique and distinctive Here Buds mark, and the critical
acclaim that the Here Active Listening system and Here One listening system with Here Buds
wireless earbuds have achieved in the press, the Here Buds mark has become associated with
16. Doppler Labs is the owner of U.S. Trademark Application Serial Number
86649741 for the Here Buds mark, in connection with audio headsets for use with mobile phones
and tablet computers, in international class 009. The Here Buds mark was filed on June 3, 2015,
and the U.S. Patent and Trademark Office issued a notice of allowance on March 8, 2016.
Doppler Labs filed a statement of use and specimen with the U.S. Patent and Trademark Office
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on February 18, 2017, and expects the U.S. Patent and Trademark Office to register the Here
Doppler Labs would offer its proprietary software technology to third party headphone
manufacturers. On and around August 9, 2016, Doppler Labs sent a letter to several headphone
companies, including Bose, to invite such a discussion. In immediate response, clearly aware of
Doppler Labs products and apparently seeing an opportunity for improper competitive
intelligence gathering, Bose responded that it was impressed with [Dopplers] leadership team
and product vision, and proposed a call to talk about how Bose and Doppler might work
together a sentiment Doppler Labs now surmises was disingenuous. Bose apparently thought
so much of Doppler Labs, it assembled its senior leadership team (Bernice Cramer, General
Pelham Norville, Director of Business Development; Chris Miller, Senior Manager of Idea &
Portfolio Management; and Steve Romine, Director of Corporate Development & Chief IP
Counsel) for a discussion with Doppler Labs less than two weeks later, on August 22, 2016. In
advance of that meeting, Bose told Doppler Labs that the purpose of the conversation would be
to investigate future business opportunities between the two companies. Then, following that
August 22nd meeting, Boses Director of Corporate Development & Chief IP Counsel, Steve
Romine, asked Doppler Labs to continue those discussions and for a follow up meeting.
18. That follow-up meeting took place at an in-person meeting in New York City on
September 8, 2016. At this meeting, Doppler Labs disclosed to Bose its proprietary technology,
market approach and positioning, product capabilities, and product road map only after receiving
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an express agreement from Bose that it would not disclose or exploit such confidential
information. On information and belief, based on subsequent events, Bose attended this meeting
not to explore legitimate business, but instead to surreptitiously obtain knowledge about Doppler
Labs business plans and proprietary technology. Had Doppler Labs known of Boses true
purposes, or of Boses intention to sell the competing Hearphones product, it would not have
made these disclosures. An e-mail that Boses Director of Corporate Development & Chief IP
Counsel, Steve Romine, wrote to Mr. Kraft hours after the New York City meeting, stating that
[w]e certainly see opportunity to combine your strengths with ours to create something amazing
19. Taking Bose at its word, that it had interest in working with Doppler Labs, on
October 13, 2016, Doppler Labs allowed Bose to demo the not-yet-released Here One listening
system with Here Buds wireless earbuds and its companion mobile application, and debrief
several of Doppler Labs senior management team, lead engineers and product architects about
Doppler Labs proprietary technology, market approach and product road map.
20. On information and belief, Bose engaged in this dialogue with misleading
enthusiasm not backed by actual good faith intent. With this improperly gained information in
hand, Bose appears to have now modified its existing in-ear product line (QC 30 Wireless
Headphones) to include the design and function of Doppler Labs award winning Here Active
Listening system, Here One listening system, Here Buds wireless earbuds, and companion
mobile application. In doing so, on information and belief, Bose mislead Doppler Labs as to the
state of Boses own product development while absorbing Doppler Labs technology, such as,
the specific ways in which Doppler Labs implements its proprietary Real World Sound Control
technology.
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21. A side-by-side comparison between Doppler Labs Here Buds wireless earbuds
and Boses Hearphones product appears below and shows that, in addition to the similarity in
name and functionality, there is striking similarity in design of the products, particularly as
related to the concentric circle hole pattern design (which is non-functional and has even acted
Doppler Labs 1st Generation Doppler Labs 2nd Generation Bose Hearphones
wireless earbuds wireless earbuds earbuds
22. In addition to learning Doppler Labs technology before introducing its product,
Bose rebranded its modified QC 30 Wireless Headphones under the name Hearphones, knowing
of the Doppler Labs brand. In doing so, Boses Hearphones name imitates and misappropriates
Doppler Labs unique and distinctive Here Buds mark. Doppler Labs never authorized Bose to
use the Here Buds mark, and Bose is fully aware that it has no such authorization from Doppler
Labs. Boses unauthorized use of the Here Buds mark is likely to cause confusion or deceive
consumers into believing that Boses headphones with the infringing Hearphones name are
Doppler Labs products, or are sponsored, licensed, authorized by, or affiliated, connected, or
associated in some way with Doppler Labs. Further exacerbating this problem, Boses infringing
Hearphones product copies the function, operation and aesthetic look of Doppler Labs Here
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Buds wireless earbuds and utilizes remarkably similar marketing language, which will further
23. On information and belief, Bose had actual knowledge of Doppler Labs rights in
the Here Buds mark before it wrongfully adopted and began using that mark in connection with
its headphones bearing the infringing Hearphones name. On information and belief, Boses
unauthorized use of the Here Buds mark was intentionally designed to trade on the goodwill and
reputation for Real World Sound Control associated with Doppler Labs and Here Buds wireless
24. Doppler Labs has suffered and, unless Boses wrongful conduct is enjoined, will
continue to suffer irreparable harm as well as monetary damage resulting from the infringement
COUNT I
(Federal Unfair Competition, Trademark Infringement,
and False Designation of Origin, 15 U.S.C. 1125)
25. Doppler Labs incorporates the allegations contained in the preceding paragraphs
26. Through extensive use of the Here Buds mark, Doppler Labs has developed
extensive goodwill rights in said mark, which goodwill is protected by, inter alia, Section 43(a)
27. Boses use of the Hearphones name has caused and/or is likely to cause
confusion, deception, and mistake by creating the false and misleading impression that Boses
goods and services are associated or connected with Doppler Labs, or have the sponsorship,
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28. Bose has made false representations, false descriptions, and false designations of
origin of their goods and services in violation of 15 U.S.C. 1125(a), and Boses activities have
caused and, unless enjoined by this court, will continue to cause a likelihood of confusion and
deception of members of the public and, additionally, injury to Doppler Labs goodwill and
reputation as embodied in the Here Buds mark, for which Doppler Labs has no adequate remedy
at law.
29. Boses actions demonstrate an intentional, willful, and malicious intent to trade on
the goodwill associated with the Hearphones mark to the great and irreparable injury to Doppler
Labs.
30. Boses conduct has caused, and is likely to continue causing, substantial injury to
the public and to Doppler Labs, and Doppler Labs is entitled to injunctive relief and to recover
Boses profits, actual damages, enhanced profits and damages, costs, and reasonable attorneys
COUNT II
(Common Law Unfair Competition and Trademark Infringement)
31. Doppler Labs incorporates the allegations contained in the preceding paragraphs
32. Doppler Labs has made exclusive use of the Here Buds mark in connection with
audio headsets for use with mobile phones and tablet computers.
34. Both Doppler Labs and Bose are engaged in trade and commerce throughout the
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35. Boses use of the Hearphones name has caused and is likely to cause confusion,
deception, and mistake by creating the false and misleading impression that Boses goods and
36. Bose, by virtue of its acts as alleged above, has willfully, knowingly, maliciously
and intentionally engaged in acts of unfair competition under the common law of the
Commonwealth of Massachusetts.
37. Boses conduct has caused, and if not enjoined, will continue to cause irreparable
38. As a result of Boses acts, Doppler Labs has been damaged in an amount not as
39. Boses conduct as described above has been willful, wanton, reckless, and in
violation of the rights of Doppler Labs. In light of the deliberate and malicious use of the
confusingly similar Hearphones name, and the need to deter Bose from similar conduct in the
COUNT III
(Violation of M.G.L. c. 93A)
40. Doppler Labs incorporates the allegations contained in the preceding paragraphs
41. At all times relevant hereto, Bose was engaged in trade or commerce within the
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42. Boses conduct, as described above, including its improper access to Doppler
Labs proprietary information, constitutes unfair and deceptive acts or practices within the
43. Bose committed its unfair and deceptive acts and practices knowingly and
willfully.
44. Boses unfair and deceptive conduct occurred primarily and substantially within
45. As a result of Boses unfair and deceptive conduct, Doppler Labs has suffered,
WHEREFORE, Doppler Labs respectfully requests that the Court enter a judgment:
A. Bose, by its adoption and usage of the Hearphones name, has infringed
Doppler Labs trademark rights in the Here Buds mark and intentionally and
B. Bose, by its adoption and usage of the Hearphones name, has infringed
Doppler Labs common law rights to the Here Buds mark and has committed
use, actual use of, and appropriation of the Here Buds mark, violated Doppler
Massachusetts, has engaged in unfair and deceptive acts and practices knowingly
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subsidiaries, affiliates and related companies and all persons acting for, with, by,
through or under them, and each of them, be temporarily enjoined from, and
(i) using in any manner the mark Hearphones, or any other trade
the Here Buds mark, in connection with the sale, offering for sale,
(ii) using any trademark, trade dress, service mark, name, logo, design
F. Bose be directed to send and make public, within 30 days of the granting
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G. Bose be directed to file with the Court and serve upon Doppler Labs
counsel within thirty (30) days after entry of Judgment a report in writing under
oath setting forth in detail the manner and form in which Bose complied with the
H. Bose be required to account for and pay over to Doppler Labs all profits
proven at trial.
I. Doppler Labs be awarded all damages caused by the acts forming the basis
of this Complaint.
Hearphones name, the damages award be trebled and the award of Bose s profits
and reasonable attorneys fees that Doppler Labs have incurred and will incur in
mark, and to deter such conduct in the future, Doppler Labs be awarded punitive
damages.
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N. Doppler Labs be awarded such other and further relief as the Court may
Here Buds mark, and to prevent further and/or additional acts of unfair
competition by Bose.
Q. Doppler Labs be awarded such other relief as the court deems proper.
JURY DEMAND
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s/ Steven M. Bauer
Steven M. Bauer (BBO No. 542531)
John M. Kitchura, Jr. (BBO No. 681542)
PROSKAUER ROSE LLP
One International Place
Boston, Massachusetts 02110-2600
(617) 526-9600 telephone
(617) 526-9899 facsimile
sbauer@proskauer.com
jkitchura@proskauer.com
Adam Siegartel*
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036-8299
(212) 969-3000 telephone
(212) 969-2900 facsimile
asiegartel@proskauer.com
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