Oakley Inc. v. Lipopsun Int'l - Complaint

Case 3:17-cv-01838-LAB-BGS Document 1 Filed 09/11/17 PageID.
1 Page 1 of 29
1 Michael K. Friedland (SBN 157,217)

michael.friedland@knobbe.com
2 Ali S. Razai (SBN 246,922)
ali.razai@knobbe.com
3 Daniel C. Kiang (SBN 307,961)
daniel.kiang@knobbe.com
4 KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street, Fourteenth Floor
5 Irvine, CA 92614
Telephone: (949) 760-0404
6 Facsimile: (949) 760-9502
7 Attorneys for Plaintiff
OAKLEY, INC.
8
9
10
IN THE UNITED STATES DISTRICT COURT
11
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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13
OAKLEY, INC., a Washington ) Civil Action No. '17CV1838 LAB BGS
14 corporation, )
)
15 Plaintiff, ) COMPLAINT FOR
) PATENT INFRINGEMENT,
16 v. ) TRADE DRESS
) INFRINGEMENT, FALSE
17 LIPOPSUN INTERNATIONAL ) DESIGNATION OF ORIGIN,
CORPORATION, a California ) UNFAIR COMPETITION, AND
18 ) BREACH OF CONTRACT
corporation, )
19 )
Defendant. ) DEMAND FOR JURY TRIAL
20 )
) [REDACTED VERSION OF
21 ) DOCUMENT SOUGHT TO BE
) FILED UNDER SEAL]
22 )
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25
26
27
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COMPLAINT
Case 3:17-cv-01838-LAB-BGS Document 1 Filed 09/11/17 PageID.2 Page 2 of 29
1 Plaintiff Oakley, Inc. (Oakley) hereby complains of Lipopsun

2 International Corporation (Defendant) and alleges as follows:
3 JURISDICTION AND VENUE
4 1. This Court has original subject matter jurisdiction over the claims
5 in this action that relate to patent infringement, trade dress infringement, false
6 designation of origin, and federal unfair competition pursuant to 35 U.S.C.
7 271 and 281, 28 U.S.C. 1331 and 1338, and 15 U.S.C. 1116(a), 1121(a),
8 and 1125(a), as these claims arise under the laws of the United States. The
9 Court has supplemental jurisdiction over the claims in this Complaint which
10 arise under state statutory and common law pursuant to 28 U.S.C. 1367(a)
11 because the state law claims are so related to the federal claims that they form
12 part of the same case or controversy and derive from a common nucleus of
13 operative facts.
14 2. This Court has personal jurisdiction over Defendant because
15 Defendant has a continuous, systematic, and substantial presence within this
16 judicial district including by selling and offering for sale infringing products in
17 this judicial district, and by committing acts of patent, trademark, and trade
18 dress infringement in this judicial district, including but not limited to selling
19 infringing eyewear directly to consumers and/or retailers in this district and
20 selling into the stream of commerce knowing such products would be sold in
21 California and this district, which acts form a substantial part of the events or
22 omissions giving rise to Oakleys claim.
23 3. Oakley is informed and believes, and thereon alleges, that venue is
24 proper in this judicial district under 28 U.S.C. 1391(b) and (d), and 1400(b).
25 THE PARTIES
26 4. Oakley is a corporation organized and existing under the laws of
27 the State of Washington, having its principal place of business at One Icon,
28 Foothill Ranch, California 92610.
-1- COMPLAINT
1 5. Oakley is informed and believes, and thereon alleges, that

2 Defendant Lipopsun is a corporation organized and existing under the laws of
3 the State of California, having its principal place of business at 4641 District
4 Boulevard, Vernon, California 90058.
5 GENERAL ALLEGATIONS
6 6. Oakley has been actively engaged in the manufacture and sale of
7 high quality eyewear since at least 1985. Oakley is the manufacturer and
8 retailer of several lines of eyewear that have enjoyed substantial success and are
9 protected by various intellectual property rights owned by Oakley.
10 7. On May 8, 2012, the United States Patent and Trademark Office
11 (U.S.P.T.O.) duly and lawfully issued United States Design Patent No.
12 D659,180 (D180 Patent), titled EYEGLASS. Oakley is the owner by
13 assignment of all right, title, and interest in the D180 Patent. A true and correct
14 copy of the D180 Patent is attached hereto as Exhibit 1.
15 8. On February 23, 2010, the U.S.P.T.O. duly and lawfully issued
16 United States Design Patent No. D610,604 (D604 Patent), titled EYEGLASS
17 AND EYEGLASS COMPONENTS. Oakley is the owner by assignment of all
18 right, title, and interest in the D604 Patent. A true and correct copy of the D604
19 Patent is attached hereto as Exhibit 2.
20 9. On June 1, 2010, the U.S.P.T.O. duly and lawfully issued United
21 States Design Patent No. D616,919 (D919 Patent), titled EYEGLASS
22 FRONT. Oakley is the owner by assignment of all right, title, and interest in
23 the D919 Patent. A true and correct copy of the D919 Patent is attached hereto
24 as Exhibit 3.
25 10. On August 3, 2010, the U.S.P.T.O. duly and lawfully issued United
26 States Design Patent No. D620,970 (D970 Patent), titled EYEGLASS
27 COMPONENT. Oakley is the owner by assignment of all right, title, and
28 ///
-2- COMPLAINT
1 interest in the D970 Patent. A true and correct copy of the D970 Patent is
2 attached hereto as Exhibit 4.
3 11. On May 8, 2012, the U.S.P.T.O. duly and lawfully issued United
4 States Design Patent No. D659,182 (D182 Patent), titled EYEGLASS AND
5 EYEGLASS COMPONENT. Oakley is the owner by assignment of all right,
6 title, and interest in the D182 Patent. A true and correct copy of the D182
8 12. On February 26, 2013, the U.S.P.T.O. duly and lawfully issued
9 United States Design Patent No. D676,898 (D898 Patent), titled EYEGLASS
10 AND EYEGLASS COMPONENT. Oakley is the owner by assignment of all
11 right, title, and interest in the D898 Patent. A true and correct copy of the D898
13 13. On May 5, 2015, the U.S.P.T.O. duly and lawfully issued United
14 States Design Patent No. D728,664 (D664 Patent), titled EYEGLASS.
15 Oakley is the owner by assignment of all right, title, and interest in the D664
16 Patent. A true and correct copy of the D664 Patent is attached hereto as Exhibit
17 7.
18 14. On July 31, 2007, the U.S.P.T.O. duly and lawfully issued United
19 States Design Patent No. D547,794 (the D794 Patent), titled
20 EYEGLASSES. Oakley is the owner by assignment of all right, title and
21 interest in the D794 Patent. A true and correct copy of the D794 Patent is
23 15. On November 6, 2007, the U.S.P.T.O. duly and lawfully issued
24 United States Design Patent No. D554,689 (the D689 Patent), titled
25 EYEGLASS FRAME. Oakley is the owner by assignment of all right, title
26 and interest in the D689 Patent. A true and correct copy of the D689 Patent is
28 ///
-3- COMPLAINT
1 16. On December 4, 2007, the U.S.P.T.O. duly and lawfully issued

2 United States Design Patent No. D556,818 (the D818 Patent), titled
3 EYEGLASS COMPONENTS. Oakley is the owner by assignment of all
4 right, title and interest in the D818 Patent. A true and correct copy of the D818
6 17. Defendant manufactures, uses, sells, offers for sale, and/or imports
7 into the United States eyewear that have infringed Oakleys patent rights,
8 including the D180 Patent, D604 Patent, D919 Patent, D970 Patent, D182
9 Patent, D898 Patent, D664 Patent, D794 Patent, D689 Patent, and D818 Patent
10 (collectively, the Asserted Patents).
11 18. Oakley manufactures and sells sunglasses under the mark
12 HOLBROOK bearing distinctive trade dress in the overall design of the
13 sunglasses (HOLBROOK Trade Dress). An example of an Oakley product
14 bearing the distinctive HOLBROOK Trade Dress is depicted in the photograph
15 attached as Exhibit 11.
16 19. As a result of Oakleys widespread use and display of the
17 HOLBROOK Trade Dress in association with its eyewear, (a) the public has
18 come to recognize and identify eyewear bearing the HOLBROOK Trade Dress
19 as emanating from Oakley, (b) the public recognizes that products bearing the
20 HOLBROOK Trade Dress constitute high quality products that conform to the
21 specifications created by Oakley, and (c) the HOLBROOK Trade Dress has
22 established strong secondary meaning and extensive goodwill.
23 20. The HOLBROOK Trade Dress is not functional. The design
24 features embodied by the HOLBROOK Trade Dress are not essential to the
25 function of the product, do not make the product cheaper or easier to
26 manufacture, and do not affect the quality of the product. The design of the
27 HOLBROOK Trade Dress is not a competitive necessity.
28 ///
-4- COMPLAINT
1 21. Subsequent to Oakleys use and adoption of the HOLBROOK

2 Trade Dress, Defendant has developed, manufactured, imported, advertised,
3 and/or sold products that use trade dress that is confusingly similar to the
4 HOLBROOK Trade Dress.
5 22. This is at least the second time that Defendant has been accused of
6 infringing Oakleys intellectual property rights. On or about March 26, 2015,
7 Oakley filed a lawsuit against Defendant alleging, inter alia, that Lipopsuns
8 sunglass models XF006PL and XF003SD infringed each of the D604 Patent, the
9 D919 Patent, and the D970 Patent. Lipopsuns XF006PL and XF003SD models
10 are shown below.
11
12
13
14
15
16 XF006PL XF003SD
17 23.
18
19
20
21
22
23
24 24.
25
26
27
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-5- COMPLAINT
1
2
3 25. Defendants acts complained of herein have caused Oakley to
4 suffer irreparable injury to its business. Oakley will continue to suffer
5 substantial loss and irreparable injury unless and until Defendant is enjoined
6 from its wrongful actions complained of herein.
7 26. Oakley is informed and believes, and on that basis alleges, that
8 Defendants acts complained of herein are willful and deliberate.
9 27. Defendants acts complained of herein have caused Oakley to
10 suffer irreparable injury to its business. Oakley will suffer substantial loss of
11 goodwill and reputation unless and until Defendant is preliminarily and
12 permanently enjoined from its wrongful actions complained of herein.
13 FIRST CLAIM FOR RELIEF
14 (Patent Infringement)
(35 U.S.C. 271)
15
16 28. Oakley repeats and re-alleges the allegations of Paragraphs 1-27 of
17 this Complaint as if set forth fully herein.
18 29. This is a claim for patent infringement under 35 U.S.C. 271.
19 30. Defendant, through its agents, employees, and/or servants has, and
20 continues to, knowingly, intentionally, and willfully infringe the D180 Patent by
21 making, using, selling, offering for sale, and/or importing eyewear having a
22 design that would appear to an ordinary observer to be substantially similar to
23 the claim of the D180 Patent, for example, Defendants XF032 model
24 sunglasses as shown below.
25 ///
26 ///
27 ///
28 ///
-6- COMPLAINT
1 Accused Product Oakley Patent

2 XF032 D659,180
3
4
5
6
7
8
9
10
11
12
31. Defendants acts of infringement of the D180 Patent were
13
undertaken without permission or license from Oakley. Oakley is informed and
14
believes, and thereon alleges, that Defendant had actual knowledge of Oakleys
15
rights in the design claimed in the D180 Patent. Oakley and its iconic designs
16
are well-known throughout the eyewear industry, and Defendants XF032
17
model sunglass is an identical copy of Oakleys patented design. Accordingly,
18
Defendants actions constitute willful and intentional infringement of the D180
19
Patent. Defendant infringed the D180 Patent with reckless disregard of
20
Oakleys patent rights. Defendant knew, or it was so obvious that Defendant
21
should have known, that its actions constitute infringement of the D180 Patent.
22
Defendants acts of infringement of the D180 Patent were not consistent with
23
the standards of commerce for its industry.
24
32. Defendant, through its agents, employees, and/or servants has, and
25
continues to, knowingly, intentionally, and willfully infringe the D604 Patent by
26
making, using, selling, offering for sale, and/or importing eyewear having a
27
design that would appear to an ordinary observer to be substantially similar to
28
-7- COMPLAINT
4 XF006 D610,604
5
6
7
8
9
10
11
12
13
undertaken without permission or license from Oakley. Defendant had actual
14
knowledge of Oakleys rights in the design claimed in the D604 Patent, at least
15
through a prior litigation that Oakley filed against Defendant on or about March
16
26, 2015, which also alleged infringement of the D604 Patent. Oakley and its
17
iconic designs are well-known throughout the eyewear industry, and
18
Defendants XF006 model sunglass is an identical copy of Oakleys patented
19
design. Accordingly, Defendants actions constitute willful and intentional
20
infringement of the D604 Patent. Defendant infringed the D604 Patent with
21
reckless disregard of Oakleys patent rights. Defendant knew, or it was so
22
obvious that Defendant should have known, that its actions constitute
23
infringement of the D604 Patent. Defendants acts of infringement of the D604
24
Patent were not consistent with the standards of commerce for its industry.
25
26
27
making, using, selling, offering for sale, and/or importing eyewear having a
28
-8- COMPLAINT

5 XF006 D616,919
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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-9- COMPLAINT
6 XF006 D620,970
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8
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12
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15
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25
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27
///
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-10- COMPLAINT
8 XF017 D659,182
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10
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12
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15
16
17
18
19 39. Defendants acts of infringement of the D182 Patent were
20 undertaken without permission or license from Oakley. Oakley is informed and
21 believes, and thereon alleges, that Defendant had actual knowledge of Oakleys
22 rights in the design claimed in the D182 Patent. Oakley and its iconic designs
23 are well-known throughout the eyewear industry, and Defendants XF017
24 model sunglass is an identical copy of Oakleys patented design. Accordingly,
25 Defendants actions constitute willful and intentional infringement of the D182
26 Patent. Defendant infringed the D182 Patent with reckless disregard of
27 Oakleys patent rights. Defendant knew, or it was so obvious that Defendant
28 should have known, that its actions constitute infringement of the D182 Patent.
-11- COMPLAINT
1 Defendants acts of infringement of the D182 Patent were not consistent with
2 the standards of commerce for its industry.
10 XF017 D676,898
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-12- COMPLAINT
11 XF015 D728,664
12
13
14
15
16
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18
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22
23
24
25
26
27
28
-13- COMPLAINT
5 Defendant, through its agents, employees, and/or servants has, and continues to,
6 knowingly, intentionally, and willfully infringe the D794 Patent by making,
7 using, selling, offering for sale, and/or importing eyewear having a design that
8 would appear to an ordinary observer to be substantially similar to the claim of
9 the D794 Patent, for example, Defendants sunglasses shown below.
11 D547,794
12
13
14
15
16
17
18
19
45. Oakley is informed and believes, and thereon alleges, that
20
Defendants acts of infringement of the D794 Patent were undertaken without
21
permission or license from Oakley. Oakley is informed and believes, and
22
thereon alleges, that Defendant had actual knowledge of Oakleys rights in the
23
design claimed in D794 Patent. Oakley and its iconic designs are well-known
24
throughout the eyewear industry, and Defendants sunglass is an identical copy
25
of Oakleys patented design. Accordingly, Oakley is informed and believes,
26
and thereon alleges, that Defendants actions constitute willful and intentional
27
infringement of the D794 Patent. Oakley is informed and believes, and thereon
28
-14- COMPLAINT
1 alleges, that Defendant infringed the D794 Patent with reckless disregard of
2 Oakleys patent rights. Oakley is informed and believes, and thereon alleges,
3 that Defendant knew, or it was so obvious that Defendant should have known,
4 that its actions constitute infringement of the D794 Patent. Oakley is informed
5 and believes, and thereon alleges, that Defendants acts of infringement of the
6 D794 Patent were not consistent with the standards of commerce for its
7 industry.
15 D554,689
16
17
18
19
20
21
22
23
24
25
permission or license from Oakley. Oakley is informed and believes, and
26
thereon alleges, that Defendant had actual knowledge of Oakleys rights in the
27
design claimed in D689 Patent. Oakley and its iconic designs are well-known
28
-15- COMPLAINT
1 throughout the eyewear industry, and Defendants sunglass is an identical copy

2 of Oakleys patented design. Accordingly, Oakley is informed and believes,
3 and thereon alleges, that Defendants actions constitute willful and intentional
4 infringement of the D689 Patent. Oakley is informed and believes, and thereon
11 industry.
19 D556,818
20
21
22
23
24
25
26
27
28
-16- COMPLAINT
1 permission or license from Oakley. Oakley is informed and believes, and

2 thereon alleges, that Defendant had actual knowledge of Oakleys rights in the
3 design claimed in D818 Patent. Oakley and its iconic designs are well-known
4 throughout the eyewear industry, and Defendants sunglass is an identical copy
5 of Oakleys patented design. Accordingly, Oakley is informed and believes,
6 and thereon alleges, that Defendants actions constitute willful and intentional
7 infringement of the D818 Patent. Oakley is informed and believes, and thereon
14 industry.
15 50. As a direct and proximate result of Defendants acts of
16 infringement, Defendant has derived and received gains, profits, and advantages
17 in an amount that is not presently known to Oakley.
18 51. Pursuant to 35 U.S.C. 284, Oakley is entitled to damages for
19 Defendants infringing acts and treble damages together with interests and costs
20 as fixed by this Court.
21 52. Pursuant to 35 U.S.C. 285, Oakley is entitled to reasonable
22 attorneys fees for the necessity of bringing this claim.
23 53. Pursuant to 35 U.S.C. 289, Oakley is entitled to Defendants total
24 profits from Defendants infringement of the Asserted Patents.
25 54. Due to Defendants actions, constituting patent infringement,
26 Oakley has suffered great and irreparable injury, for which Oakley has no
27 adequate remedy at law.
28 ///
-17- COMPLAINT
1 55. Defendant will continue to infringe Oakleys patent rights to the

2 great and irreparable injury of Oakley, unless and until Defendant is enjoined by
3 this Court.
4 SECOND CLAIM FOR RELIEF
5 (Trade Dress Infringement)
(15 U.S.C. 1125(a))
6
7 56. Oakley repeats and re-alleges the allegations of paragraphs 1-27 of
9 57. This is a claim for trade dress infringement under 15 U.S.C.
10 1125(a).
11 58. Subsequent to Oakleys use and adoption of the HOLBROOK
12 Trade Dress, Defendant has developed, manufactured, imported, advertised,
13 and/or sold products that use trade dress that is confusingly similar to the
14 HOLBROOK Trade Dress. As shown below, for example, Defendants
15 KS1375 model sunglasses, which are sold and/or offered for sale, for example,
16 on Defendants website www.lipopsun.com, use a trade dress that is confusingly
17 similar to Oakleys HOLBROOK Trade Dress.
18
19 Accused Product HOLBROOK TRADE DRESS
20 KS1375 HOLBROOK Trade Dress

21
22
23
24
25
26
27 59. Defendants use of the HOLBROOK Trade Dress in connection
28 with its sunglasses is likely to cause confusion, or to cause mistake, or to
-18- COMPLAINT
1 deceive as to the affiliation, connection, or association of Defendant with

2 Oakley.
4 Defendant infringed Oakleys trade dress rights with the intent to unfairly
5 compete with Oakley, to trade upon Oakleys reputation and goodwill by
6 causing confusion and mistake among customers and the public, and to deceive
7 the public into believing that Defendants products are associated with,
8 sponsored by, originated from, or are approved by Oakley, when they are not,
9 resulting in a loss of reputation in, and mischaracterization of, Oakleys
10 products and its brand, damaging its marketability and saleability.
11 61. Defendants activities constitute willful and intentional
12 infringement of Oakleys trade dress rights in total disregard of Oakleys
13 proprietary rights, and were done despite Defendants knowledge that use of the
14 HOLBROOK Trade Dress was and is in direct contravention of Oakleys rights.
16 Defendant has derived and received, and will continue to derive and receive,
17 gains, profits, and advantages from Defendants trade dress infringement in an
18 amount that is not presently known to Oakley. By reason of Defendants
19 actions, constituting trade dress infringement, Oakley has been damaged and is
20 entitled to monetary relief in an amount to be determined at trial.
22 Defendants infringing acts, up to three times actual damages as fixed by this
23 Court, and its reasonable attorneys fees for the necessity of bringing this claim.
24 64. Due to Defendants actions, constituting trade dress infringement,
25 Oakley has suffered great and irreparable injury, for which Oakley has no
26 adequate remedy at law.
27 ///
28 ///
-19- COMPLAINT
1 65. Defendant will continue to infringe Oakleys trade dress rights to

2 the great and irreparable injury of Oakley, unless and until Defendant is
3 enjoined by this Court.
4 THIRD CLAIM FOR RELIEF
5 (Federal Unfair Competition & False Designation of Origin)
(15 U.S.C. 1125(a))
6
7 66. Oakley repeats and re-alleges the allegations of paragraphs 1-27
8 and 56- 63 of this Complaint as if set forth fully herein.
9 67. This is a claim for unfair competition and false designation of
10 origin arising under 15 U.S.C. 1125(a).
11 68. Defendants use of the HOLBROOK Trade Dress without Oakleys
12 consent constitutes a false designation of origin, false or misleading description
13 of fact, or false or misleading representation of fact, which is likely to cause
14 confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
15 association of such person with another person, or as to the origin, sponsorship,
16 or approval of his or her goods or commercial activities by another person in
17 violation of 15 U.S.C. 1125(a).
18 69. Defendants use of the HOLBROOK Trade Dress without Oakleys
19 consent constitutes a false designation of origin, false or misleading description
20 of fact, or false or misleading representation of fact, which in commercial
21 advertising or promotion, misrepresents the nature, characteristics, qualities, or
22 geographic origin of his or her or another persons goods or commercial
23 activities in violation of 15 U.S.C. 1125(a).
24 70. Such conduct by Defendant is likely to confuse, mislead, and
25 deceive Defendants customers, purchasers, and members of the public as to the
26 origin of the HOLBROOK Trade Dress or cause said persons to believe that
27 Defendant and/or its products have been sponsored, approved, authorized, or
28 licensed by Oakley or are in some way affiliated or connected with Oakley, all
-20- COMPLAINT
1 in violation of 15 U.S.C. 1125(a) and constitutes unfair competition with

2 Oakley.
4 Defendants actions were undertaken willfully with full knowledge of the falsity
5 of such designation of origin and false descriptions or representations.
8 gains, profits, and advantages from Defendants false designation of origin, false
9 or misleading statements, descriptions of fact, false or misleading
10 representations of fact, and/or unfair competition in an amount that is not
11 presently known to Oakley. By reason of Defendants actions, constituting false
12 designation of origin, false or misleading statements, false or misleading
13 descriptions of fact, false or misleading representations of fact, and/or unfair
14 competition, Oakley has been damaged and is entitled to monetary relief in an
15 amount to be determined at trial.
17 Defendants acts constituting false designation of origin, false or misleading
18 statements, false or misleading descriptions of fact, false or misleading
19 representations of fact, and/or unfair competition, up to three times actual
20 damages as fixed by this Court, and its reasonable attorneys fees for the
21 necessity of bringing this claim.
22 74. Due to Defendants actions, constituting false designation of origin,
23 false or misleading statements, false or misleading description of fact, false or
24 misleading representations of fact, and/or unfair competition, Oakley has
25 suffered and continues to suffer great and irreparable injury, for which Oakley
26 has no adequate remedy at law.
27 75. Defendant will continue its false designation of origin, false or
28 misleading statements, false or misleading description of fact, false or
-21- COMPLAINT
1 misleading representations of fact, and unfair competition, unless and until

2 Defendant is enjoined by this Court.
3 FOURTH CLAIM FOR RELIEF
4 (Breach of Contract)
5 76. Oakley repeats and re-alleges the allegations of paragraphs 1-55 of
7 77.
8
9 78.
10
11 79.
12
13
14
15 80.
16
17
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20
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22
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24
25
26 XF006
27
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-22- COMPLAINT
1
2
3
4
5
6 XF006PL XF003SD
7 81.
8
9
10
11
12
13 82. As a foreseeable, direct, and proximate result of Defendants
14 breach of contract, Oakley has suffered irreparable injury to its rights and
15 pecuniary damages. Oakley is informed and believes, and thereon alleges, that
17 gains, profits, and advantages from Defendants breach of contract in an amount
18 that is not presently known to Oakley. Oakley is entitled to monetary relief in
19 an amount to be determined at trial.
20 83. Due to Defendants breach of contract, Oakley has suffered and
21 continues to suffer great and irreparable injury, for which Oakley has no
22 adequate remedy at law. Oakley is entitled to injunctive relief from Defendants
23 wrongful conduct.
24 84.
25
26 ///
27 ///
28 ///
-23- COMPLAINT
1 FIFTH CLAIM FOR RELIEF

2 (California Unfair Competition)
3 85. Oakley repeats and re-alleges the allegations of paragraphs 1-27
4 and 56- 75 of this Complaint as if set forth fully herein.
5 86. This is a claim for unfair competition, arising under California
6 Business & Professions Code 17200, et seq. and California common law.
7 87. Defendants acts of trade dress infringement and false designation
8 of origin complained of herein constitute unfair competition with Oakley under
9 the common law and statutory laws of the State of California, particularly
10 California Business & Professions Code 17200, et seq.
13 gains, profits, and advantages from Defendants unfair competition in an
14 amount that is not presently known to Oakley. By reason of Defendants
15 wrongful acts as alleged in this Complaint, Oakley has been damaged and is
16 entitled to monetary relief in an amount to be determined at trial.
17 89. By its actions, Defendant has injured and violated the rights of
18 Oakley and has irreparably injured Oakley, and such irreparable injury will
19 continue unless Defendant is enjoined by this Court.
20 WHEREFORE, Oakley prays for judgment in its favor against
21 Defendant for the following relief:
22 A. An Order adjudging Defendant to have willfully infringed the
23 Asserted Patents under 35 U.S.C. 271;
24 B. A preliminary and permanent injunction enjoining Defendant, its
25 respective officers, directors, agents, servants, employees, and attorneys, and
26 those persons in active concert or participation with Defendant, from making,
27 using, selling, offering to sell, and/or importing into the United States
28 Defendants sunglass models XF032, XF006, XF017, XF015, and the
-24- COMPLAINT
1 sunglasses identified above as infringing the D794 Patent, the D689 Patent, and
2 the D818 Patent, as well as any products that are not colorably different from
3 these products;
4 C. A preliminary and permanent injunction enjoining Defendant, its
5 respective officers, directors, agents, servants, employees, and attorneys, and
6 those persons in active concert or participation with Defendant, from directly or
7 indirectly infringing any of the Asserted Patents in violation of 35 U.S.C. 271;
8 D. That Defendant account for all gains, profits, and advantages
9 derived by Defendants infringement of the Asserted Patents in violation of
10 35 U.S.C. 271, and that Defendant pay to Oakley all damages suffered by
11 Oakley and/or Defendants total profit from such infringement pursuant to 35
12 U.S.C. 284 and 289;
13 E. An Order for a trebling of damages and/or exemplary damages
14 because of Defendants willful conduct pursuant to 35 U.S.C. 284;
15 F. That the Court find for Oakley and against Defendant on Oakleys
16 claims of trade dress infringement, false designation of origin, and unfair
17 competition under 15 U.S.C. 1125(a);
18 G. That the Court find for Oakley and against Defendant on Oakleys
19 claims of unfair competition under California Business & Professions Code
20 17200, et seq. and California common law;
21 H. That the Court issue a preliminary and permanent injunction
22 against Defendant, its agents, servants, employees, representatives, successors,
23 and assigns, and all persons, firms, or corporations in active concert or
24 participation with Defendant, enjoining them from engaging in the following
25 activities and from assisting or inducing, directly or indirectly, others to engage
26 in the following activities:
27 1. Manufacturing, importing, marketing, displaying,
28 distributing, offering to sell, and/or selling Defendants
-25- COMPLAINT
1 KS1375 product shown above and any products that are not
2 colorably different therefrom;
3 2. using Oakleys HOLBROOK Trade Dress, or any other trade
4 dress that is confusingly similar to Oakleys HOLBROOK
5 Trade Dress;
6 3. falsely designating the origin of Defendants goods;
7 4. unfairly competing with Oakley in any manner whatsoever;
8 5. causing a likelihood of confusion or injuries to Oakleys
9 business reputation; and,
10 6. manufacturing, importing, marketing, displaying,
11 distributing, offering to sell, and/or selling any goods that
12 infringe Oakleys HOLBROOK Trade Dress.
13 I. That an accounting be ordered to determine Defendants profits
14 resulting from its trade dress infringement, false designation of origin, and
15 unfair competition, and that Oakley be awarded monetary relief in an amount to
16 be fixed by the Court in its discretion as it finds just as an equitable remedy and
17 as a remedy under 15 U.S.C. 1117, including:
18 1. all profits received by Defendant as a result of its infringing
19 actions, said amount to be trebled;
20 2. all damages sustained by Oakley as a result of Defendants
21 acts of trade dress infringement, unfair competition, and
22 false designation of origin, and that such damages be trebled;
23 and
24 3. punitive damages stemming from Defendants willful,
25 intentional, and malicious acts;
26 J. That such damages and profits be trebled and awarded to Oakley
27 pursuant to 15 U.S.C. 1117;
28 K. An Order adjudging that this is an exceptional case;
-26- COMPLAINT
1 L. That, because of the exceptional nature of this case resulting from

2 Defendants deliberate infringing actions, this Court award to Oakley all
3 reasonable attorneys fees, costs, and disbursements incurred as a result of this
4 action, pursuant to 15 U.S.C. 1117 and/or 35 U.S.C. 285;
5 M. That Oakley recover exemplary damages pursuant to California
6 Civil Code 3294;
7 N. An award of pre-judgment and post-judgment interest and costs of
8 this action against Defendant;
9 O.
10
11 P.
12
13
14 Q.
15
16
17 R. Such other and further relief as this Court may deem just and
18 proper.
19 Respectfully submitted,
21
22 Dated: September 11, 2017 By:/s/ Ali S. Razai
Michael K. Friedland
23 Ali S. Razai
Daniel C. Kiang
24
Attorneys for Plaintiff Oakley, Inc.
25
26
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28
-27- COMPLAINT
1 DEMAND FOR JURY TRIAL

2 Plaintiff Oakley, Inc. hereby demands a trial by jury on all issues so
3 triable.
4 Respectfully submitted,
6
7 Dated: September 11, 2017 By:/s/ Ali S. Razai
Michael K. Friedland
8 Ali S. Razai
Daniel C. Kiang
9
Attorneys for Plaintiff Oakley, Inc.
10
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-28- COMPLAINT
Case 3:17-cv-01838-LAB-BGS Document 1-1 Filed 09/11/17 PageID.30 Page 1 of 1
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS

OAKLEY, INC., a Washington corporation LIPOPSUN INTERNATIONAL CORPORATION, a California
corporation
(b) County of Residence of First Listed Plaintiff Orange County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number)

Michael K. Friedland, Ali S. Razai, Daniel C. Kiang
Attorneys (If Known) '17CV1838 LAB BGS
Knobbe, Martens, Olson & Bear LLP
2040 Main St., 14th Floor, Irvine, CA 92614; (949) 760-0404
II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
u 1 U.S. Government u 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State u 1 u 1 Incorporated or Principal Place u 4 u 4
of Business In This State
u 2 U.S. Government u 4 Diversity Citizen of Another State u 2 u 2 Incorporated and Principal Place u 5 u 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

Foreign Country
IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
u 110 Insurance PERSONAL INJURY PERSONAL INJURY u 625 Drug Related Seizure u 422 Appeal 28 USC 158 u 375 False Claims Act
u 120 Marine u 310 Airplane u 365 Personal Injury - of Property 21 USC 881 u 423 Withdrawal u 376 Qui Tam (31 USC
u 130 Miller Act u 315 Airplane Product Product Liability u 690 Other 28 USC 157 3729(a))
u 140 Negotiable Instrument Liability u 367 Health Care/ u 400 State Reapportionment
u 150 Recovery of Overpayment u 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS u 410 Antitrust
& Enforcement of Judgment Slander Personal Injury u 820 Copyrights u 430 Banks and Banking
u 151 Medicare Act u 330 Federal Employers Product Liability u 830 Patent u 450 Commerce
u 152 Recovery of Defaulted Liability u 368 Asbestos Personal u 835 Patent - Abbreviated u 460 Deportation
Student Loans u 340 Marine Injury Product New Drug Application u 470 Racketeer Influenced and
(Excludes Veterans) u 345 Marine Product Liability u 840 Trademark Corrupt Organizations
u 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY u 480 Consumer Credit
of Veterans Benefits u 350 Motor Vehicle u 370 Other Fraud u 710 Fair Labor Standards u 861 HIA (1395ff) u 490 Cable/Sat TV
u 160 Stockholders Suits u 355 Motor Vehicle u 371 Truth in Lending Act u 862 Black Lung (923) u 850 Securities/Commodities/
u 190 Other Contract Product Liability u 380 Other Personal u 720 Labor/Management u 863 DIWC/DIWW (405(g)) Exchange
u 195 Contract Product Liability u 360 Other Personal Property Damage Relations u 864 SSID Title XVI u 890 Other Statutory Actions
u 196 Franchise Injury u 385 Property Damage u 740 Railway Labor Act u 865 RSI (405(g)) u 891 Agricultural Acts
u 362 Personal Injury - Product Liability u 751 Family and Medical u 893 Environmental Matters
Medical Malpractice Leave Act u 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS u 790 Other Labor Litigation FEDERAL TAX SUITS Act
u 210 Land Condemnation u 440 Other Civil Rights Habeas Corpus: u 791 Employee Retirement u 870 Taxes (U.S. Plaintiff u 896 Arbitration
u 220 Foreclosure u 441 Voting u 463 Alien Detainee Income Security Act or Defendant) u 899 Administrative Procedure
u 230 Rent Lease & Ejectment u 442 Employment u 510 Motions to Vacate u 871 IRSThird Party Act/Review or Appeal of
u 240 Torts to Land u 443 Housing/ Sentence 26 USC 7609 Agency Decision
u 245 Tort Product Liability Accommodations u 530 General u 950 Constitutionality of
u 290 All Other Real Property u 445 Amer. w/Disabilities - u 535 Death Penalty IMMIGRATION State Statutes
Employment Other: u 462 Naturalization Application
u 446 Amer. w/Disabilities - u 540 Mandamus & Other u 465 Other Immigration
Other u 550 Civil Rights Actions
u 448 Education u 555 Prison Condition
u 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an X in One Box Only)
u 1 Original u 2 Removed from u 3 Remanded from u 4 Reinstated or u 5 Transferred from u 6 Multidistrict u 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
35 U.S.C. 271 and 15 U.S.C. 1125(a)
VI. CAUSE OF ACTION Brief description of cause:
Patent Infringement; Trade Dress Infringement; False Designation; Unfair Competition
VII. REQUESTED IN u CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: u Yes u No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE Gonzalo P. Curiel DOCKET NUMBER 3:15cv00682GPCKSC
DATE SIGNATURE OF ATTORNEY OF RECORD
09/11/2017 /s/ Ali S. Razai
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

1 TABLE OF EXHIBITS
2 Page #
3 Exhibit 1.............................................................................................................. 29
4 Exhibit 2.............................................................................................................. 35
5 Exhibit 3.............................................................................................................. 40
6 Exhibit 4.............................................................................................................. 44
7 Exhibit 5.............................................................................................................. 50
8 Exhibit 6.............................................................................................................. 55
9 Exhibit 7.............................................................................................................. 60
10 Exhibit 8.............................................................................................................. 66
11 Exhibit 9.............................................................................................................. 71
12 Exhibit 10............................................................................................................ 76
13 Exhibit 11............................................................................................................ 77
14 Exhibit 12............................................................................................................ 78
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TABLE OF EXHIBITS
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TO BE FILED UNDER SEAL

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Case 3:17-cv-01838-LAB-BGS Document 1 Filed 09/11/17 PageID.

1 Michael K. Friedland (SBN 157,217)

1 Plaintiff Oakley, Inc. (Oakley) hereby complains of Lipopsun

1 5. Oakley is informed and believes, and thereon alleges, that

1 16. On December 4, 2007, the U.S.P.T.O. duly and lawfully issued

1 21. Subsequent to Oakleys use and adoption of the HOLBROOK

1 Accused Product Oakley Patent

1 design that would appear to an ordinary observer to be substantially similar to

20 undertaken without permission or license from Oakley. Oakley is informed and

23 are well-known throughout the eyewear industry, and Defendants XF017

24 model sunglass is an identical copy of Oakleys patented design. Accordingly,

25 Defendants actions constitute willful and intentional infringement of the D182

26 Patent. Defendant infringed the D182 Patent with reckless disregard of

27 Oakleys patent rights. Defendant knew, or it was so obvious that Defendant

1 throughout the eyewear industry, and Defendants sunglass is an identical copy

1 permission or license from Oakley. Oakley is informed and believes, and

1 55. Defendant will continue to infringe Oakleys patent rights to the

20 KS1375 HOLBROOK Trade Dress

1 deceive as to the affiliation, connection, or association of Defendant with

1 65. Defendant will continue to infringe Oakleys trade dress rights to

1 in violation of 15 U.S.C. 1125(a) and constitutes unfair competition with

1 misleading representations of fact, and unfair competition, unless and until

1 FIFTH CLAIM FOR RELIEF

1 L. That, because of the exceptional nature of this case resulting from

1 DEMAND FOR JURY TRIAL

I. (a) PLAINTIFFS DEFENDANTS

(c) Attorneys (Firm Name, Address, and Telephone Number)

Citizen or Subject of a u 3 u 3 Foreign Nation u 6 u 6

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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