ALO v. Reflex Performance - Complaint

Case 2:18-cv-10491 Document 1 Filed 12/18/18 Page 1 of 16 Page ID #:1
1 Andrew P. Holland/Bar No. 224737

aholland@thoits.com
2 Misasha S. Graham/Bar No. 237187
mgraham@thoits.com
3 Michael Y. Hsueh/Bar No. 286548
mhsueh@thoits.com
4 THOITS LAW
A Professional Corporation
5 400 Main Street, Suite 250
Los Altos, California 94022
6 Telephone: (650) 327-4200
Facsimile: (650) 325-5572
7
Attorneys for Plaintiff
8 ALO, LLC
9
UNITED STATES DISTRICT COURT
10
CENTRAL DISTRICT OF CALIFORNIA
11
WESTERN DIVISION
12
A PROFESSIONAL CORPORATION
400 Main Street, Suite 250
13 ALO, LLC a California Limited No.

Liability Company,
(650) 327-4200
COMPLAINT FOR:
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Plaintiff,
15 1. PATENT INFRINGEMENT
v.
16 2. TRADE DRESS
REFLEX PERFORMANCE INFRINGEMENT
17 RESOURCES, INC. DBA 90
DEGREE BY REFLEX, a New York
18 Corporation; DOES 1 through 10, 3. UNFAIR COMPETITION
inclusive,
19
Defendants. DEMAND FOR JURY TRIAL
20
21 Plaintiff ALO, LLC (“ALO”) alleges the following against defendant Reflex
22 Performance Resources, Inc. d/b/a 90 Degree By Reflex (“Defendant” or “90
23 Degree”) and Does 1 through 10 (collectively, “Defendants”):
24 NATURE OF THE CASE
25 1. This is an action at law and in equity for patent infringement, trade
26 dress infringement and unfair competition, arising under 35 U.S.C. section 271 et
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COMPLAINT
1 seq., 15 U.S.C. section 1125 et seq., and common law unfair competition.
2 2. ALO is the owner of ALO® and ALO Yoga® (collectively, “ALO
3 Yoga”), a well-known and exceedingly popular line of athletic wear designed for
4 both athletic and non-athletic (“athleisure”) settings. This line includes, among
5 other distinctive designs, ALO Yoga’s Moto Legging (“Moto Legging”), which is
6 at issue in this case.
7 3. Defendants, without authorization, are copying ALO’s distinctive Moto
8 Legging design and, as a result, are offering for sale and selling products that are
9 confusingly similar to the Moto Legging. Defendants’ products are not
10 manufactured by ALO and are not connected to or endorsed by ALO in any way.
11 As a result, Defendants are infringing ALO’s patent on the Moto Legging. In
12 addition, Defendants’ merchandise is likely to cause confusion in the marketplace
13 and to deceive consumers and the public regarding its source, as Defendants have
(650) 327-4200
liberally utilized ALO’s distinctive trade dress and the goodwill that ALO has
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15 developed in the athleisure/athletic wear market to create its infringing products.

16 PARTIES
17 4. Plaintiff ALO, LLC is a California limited liability company with its
18 principal place of business at 6670 Flotilla Street, Commerce, California, 90040.
19 5. On information and belief, 90 Degree is a corporation organized and
20 existing under the laws of the State of New York with its principal place of business
21 at 525 Fashion Avenue, Suite 1601, New York, New York 10018.
22 6. The true names and capacities of defendants sued herein as Does 1
23 through 10, inclusive, are unknown to Plaintiff and Plaintiff therefore sues these
24 defendants by such fictitious names. Plaintiff will amend this complaint to allege
25 their true names and capacities when ascertained.
26 7. On information and belief, Plaintiffs alleges that, at all times relevant
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1 hereto, each of the Defendants was the alter ego of each of the other Defendants, by
2 way of the existence of an agency, employee, and/or successor/predecessor
3 relationship, and was at all times acting within the course and scope of such
4 relationship, with the knowledge, approval, consent, or ratification of each of the
5 other Defendants.
6 8. On information and belief, Defendants have purposefully directed
7 business activities toward consumers residing in this judicial district, including but
8 without limitation by offering for sale, selling, and entering into sales contracts for
9 their infringing products with residents of this judicial district.
10 9. By engaging in the activities set forth herein, Defendants have
11 purposefully availed themselves of the privilege of conducting activities in this
12 forum, thereby invoking the benefits and protections of the laws of the State of
13 California, and of this judicial district in particular.

(650) 327-4200
JURISDICTION AND VENUE

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15 10. This action arises under 35 U.S.C. section 271 et seq., the Lanham
16 Act, 15 U.S.C. section 1125 et seq., and common law unfair competition. This
17 Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. sections
18 1331 and 1338, as ALO’s claims arise under the Patent Act, and pursuant to 15
19 U.S.C. section 1121, as ALO’s claims also arise under the Lanham Act. This Court
20 has supplemental jurisdiction pursuant to 28 U.S.C. sections 1338(b) and 1367 over
21 ALO’s claims arising under the laws of the State of California.
22 11. This Court has personal jurisdiction over Defendants as, on information
23 and belief, Defendants are doing business in this judicial district through their
24 website (https://www.90degreebyreflex.com) through which it advertises and sells
25 goods that infringe ALO’s design patent and trade dress to consumers residing in
26 this judicial district, thereby invoking the benefits and protections of the laws of this
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COMPLAINT
1 judicial district.
2 12. Defendants have distributed or sold infringing merchandise within this
3 judicial district, have manufactured or distributed products used or consumed within
4 this judicial district in the ordinary course of trade, or have otherwise made or
5 established contacts within this judicial district sufficient to permit the exercise of
6 personal jurisdiction. Venue is proper in this judicial district under 28 U.S.C.
7 section 1391(b)(2) as, on information and belief, a substantial part of the events,
8 omissions and acts causing injury that are the subject matter of this action arise out
9 of or relate to Defendants’ activities within this judicial district.
10 FACTUAL ALLEGATIONS
11 13. ALO’s innovative concept of creating an exercise legging with
12 motorcycle pant stylings revolutionized the athletic wear market when it was first
13 marketed and quickly became one of the hallmarks of the ALO Yoga® brand,
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known for its distinctive appearance and ornamental “moto” design. This design
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15 has since become well known in the “athleisure” market as well, with celebrities,
16 yogis, and other well-known individuals wearing this product both for yoga and
17 for other physical activities.
18 14. On December 27, 2016, the United States Patent and Trademark Office
19 duly and legally issued United States Design Patent No. US D774,731 S (the “’731
20 Patent”), which covers products sold under ALO Yoga’s “Moto Legging”
21 collection. A true and correct copy of the ’731 Patent is attached hereto as Exhibit
22 A. The ‘731 Patent was initially assigned to Color Image Apparel, Inc. (“CIA”)
23 which in turn assigned the ‘731 Patent to ALO on May 1, 2018, with the assignment
24 being recorded on October 16, 2018. ALO is the owner of the entire right, title and
25 interest in and to the ’731 Patent.
26 15. Certain 90 Degree leggings currently marketed as “7/8 Combination
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COMPLAINT
1 Biker Legging” (“Biker Legging”) infringe the ’731 Patent (the “Accused
2 Product”). True and correct copies of photographs of the infringing Accused
3 Product as displayed on 90 Degree’s website (https://www.90degreebyreflex.com)
4 are attached hereto as Exhibit B.
5 16. The overall appearance and design of the invention embodied in the
6 ’731 Patent and the corresponding design of the infringing Accused Product are
7 substantially the same.
8 17. On information and belief, an ordinary observer will perceive the
9 overall appearance of the design of the invention embodied in the ’731 Patent and
10 the corresponding designs of Defendants’ infringing Accused Product to be
11 substantially the same.
12 18. Table 1, below, shows side-by-side comparisons of the ’731 Patent
13 design (left), with the infringing Biker Leggings (right). A copy of Table 1 is also
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attached as Exhibit C.
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10965.004/1200439v1 5
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Table 1: Comparison of ’731 Patent
2
and Defendants’ Infringing Biker Leggings
3
’731 Patent Figure Defendant’s Infringing Leggings
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Figure 1
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19. Defendants offer for sale and sell the Accused Product to customers
17
throughout the United States through their website and social media ads.
18
Furthermore, Defendants indirectly infringe the ’731 Patent because their customers
19
use the Accused Product.
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20. Upon information and belief, Defendants offer to sell and sell the
21
Accused Product to customers with the specific intent to induce infringement of the
22
’731 Patent.
23
21. Upon information and belief, Defendants had knowledge that the
24
Accused Product is especially made or especially adapted for use in an infringement
25
of the ’731 Patent and is not a staple article or commodity of commerce suitable for
26
substantial non-infringing use.
10965.004/1200439v1 6
COMPLAINT
1 22. Defendants have infringed and are still infringing, directly and
2 indirectly, the ’731 Patent by continuing to make, use, offer to sell, sell and/or
3 importing athletic/athleisure leggings that embody the ’731 Patent including, but not
4 limited to, the Accused Product.
5 23. ALO has been manufacturing, advertising, and selling the Moto
6 Legging for both athletic and non-athletic use. The Moto Legging revolutionized
7 the area of sports leggings due to the total image and overall appearance of its
8 design, as it married the athletic nature of leggings with the aesthetic of more
9 motorcycle inspired pants with distinctive, non-functional attributes such as a flat
10 front panel at the top of the leggings and raised ridge panels at the thigh, shin and
11 back calves that give the appearance of “moto” leggings. Together, these
12 attributes make up the “Moto Legging Trade Dress.”
13 24. As the result of ALO’s extensive marketing, advertising and

(650) 327-4200
promotion of its Moto Legging Trade Dress throughout numerous and diverse
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15 mediums and forums, as well as its strong commercial success and substantial
16 consumer sales, the public well recognizes and understands that the Moto
17 Legging Trade Dress distinguishes and identifies a specific ALO product – the
18 Moto Legging. Due to its fashion-forward styling and quality craftsmanship,
19 the Moto Legging has, since its inception, also been featured prominently in
20 athleisure wear as a fashionable option in the leggings space.
21 25. ALO’s Moto Legging Trade Dress is distinctive and non-functional.
22 Through its own activities, which includes but is not limited to extensive
23 marketing, advertising, and other promotional activities, ALO has built a
24 valuable reputation around its ALO Moto Legging Trade Dress, which has
25 acquired significant secondary meaning. In doing so, ALO has created substantial
26 goodwill in the market as well.
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COMPLAINT
1 26. Upon information and belief, ALO alleges that it has the exclusive
2 right to use the Moto Legging Trade Dress in interstate commerce, and on
3 information and belief, ALO’s use has been exclusive since it first adopted the
4 ALO Moto Legging Trade Dress, with the exception of unauthorized uses such as
5 Defendants’ as described in this Complaint.
6 27. ALO used the Moto Legging Trade Dress extensively and
7 continuously before Defendants began using and selling confusingly similar
8 imitations of ALO’s product.
9 28. Subsequent to ALO’s creation of the Moto Legging Trade Dress,
10 Defendants commenced advertising, distributing, selling and offering for sale their
11 infringing products, which unlawfully copies or imitates the Moto Legging Trade
12 Dress.
13 29. A side by side visual comparison of ALO’s Moto Legging Trade

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Dress and Defendants’ infringing product is shown below in Table 2, and also
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15 attached as Exhibit D.
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10965.004/1200439v1 8
COMPLAINT
1
Table 2: Moto Legging Trade Dress Comparison
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ALO’s Defendants’
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Moto Legging Trade Dress Biker Legging
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16 30. On information and belief, Defendants have, are, and will continue
17 to manufacture, distribute, advertise, sell and offer for sale their unauthorized
18 products in this judicial district and throughout the United States unless enjoined
19 by this Court.
20 31. The products manufactured, distributed, offered for sale and sold by
21 Defendants are not manufactured by ALO nor are Defendants
22 associated/connected with, licensed, authorized, endorsed or approved by ALO in
23 any way.
24 32. Defendants’ use of the Moto Legging Trade Dress is likely to cause
25 confusion in the minds of the consuming public, and has damaged and is damaging
26 ALO’s valuable intellectual property rights by creating the false impression that
10965.004/1200439v1 9
COMPLAINT
1 Defendants and/or their infringing product is authorized, sponsored, endorsed,

2 and/or approved by ALO, or that their infringing product originates from ALO,
3 when it does not. This is particularly damaging with respect to those persons who
4 perceive a quality issue or a defect in Defendants’ products. In so doing,
5 Defendants have created such a likelihood of confusion, deception or mistake that
6 ALO’s reputation and the goodwill that it has created through its own careful
7 activities related to the Moto Legging Trade Dress will be irreparably harmed.
8 33. On information and belief, Defendants’ activities complained of herein
9 constitute willful and intentional infringement of the Moto Legging Trade Dress, as
10 Defendants continue to willfully and intentionally sell their confusing imitation
11 products in a way that directly competes with ALO’s Moto Legging Trade Dress.
12 34. Upon information and belief, Defendants became aware of the
13 infringement allegations and the ’731 Patent at least as early as March 22, 2017 after
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a cease and desist letter was sent to Defendants by ALO’s counsel. A true and
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15 correct copy of this letter is attached as Exhibit E. The original letter referenced
16 the Infringing Product, which was at that time called the “Moto Leggings with
17 Pleated Mesh Insert.”
18 35. ALO’s counsel never received a written response to this cease and
19 desist letter. Upon information and belief, Defendants, at some point between
20 receiving that letter and the filing of this lawsuit, removed the Infringing Product
21 referenced in the March 22, 2017 letter from their website. However, instead of
22 complying with ALO’s request in the March 22, 2017 letter to no longer sell the
23 Infringing Product, on information and belief, Defendants renamed the Infringing
24 Product by its current name (“Biker Legging”) in an attempt to circumvent
25 discovery and further infringe on ALO’s intellectual property rights, and once again
26 offered the Infringing Product for sale on Defendants’ website.
10965.004/1200439v1 10
COMPLAINT
1 36. Defendants’ purposeful behavior with regard to renaming the Infringing

2 Product is yet another example of Defendants’ willful and intentional infringement
3 of ALO’s ‘731 Patent and the Moto Legging Trade Dress.
4 37. ALO has contacted Defendants regarding several other products sold
5 on Defendants’ website that potentially infringe other patents and/or trade dress of
6 ALO.
7 38. As of the date of filing this Complaint, ALO still has received no
8 response from Defendants to its original cease and desist letter regarding the
9 Infringing Product at issue in this Complaint.
10 FIRST CLAIM FOR RELIEF
11 (Patent Infringement – 35 U.S.C. § 271)
12 39. ALO repeats and incorporates by this reference each and every
13 allegation contained in paragraphs 1 through 38 above, inclusive, as though set forth

(650) 327-4200
in full herein.
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15 40. Defendants, without authorization from ALO, have made, used,

16 offered for sale, sold, and/or imported in or into the United States, and continue to
17 make, use, offer for sale, sell, and/or import in or into the United States, leggings
18 having a design that infringes the ’731 Patent.
19 41. ALO has been and will continue to be irreparably harmed by
20 Defendants’ infringement of the ’731 Patent.
21 SECOND CLAIM FOR RELIEF
22 (Trade Dress Infringement - 15 U.S.C. § 1125(a))
24 allegation contained in paragraphs 1 through 41 above, inclusive, as though fully set
25 forth herein.
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10965.004/1200439v1 11
COMPLAINT
1 43. The Moto Legging Trade Dress is a unique, distinctive, non-functional

2 style marked by specific characteristics as described in this Complaint. Its
3 distinctive nature is known and sought out by consumers as a specific product
4 created by ALO as a result of ALO’s marketing, advertising, and promotional
5 efforts. In doing so, the Moto Legging Trade Dress has acquired distinctiveness
6 within the meaning of the Lanham Act.
7 44. Defendants’ manufacturing, distribution, advertising, sale and offering
8 for sale of their infringing products has been and is without ALO’s consent, and
9 constitutes designation of a term, symbol, device or combination thereof that is false
10 or misleading within the meaning of 15 U.S.C. § 1125(a).
11 45. On information and belief, Defendants are willfully and intentionally
12 committing the acts complained of above with full knowledge that their acts are
13 unlawful.
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46. Defendants’ wrongful acts and conduct as alleged herein have permitted
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15 or will permit them to generate substantial sales and profits on the strength of ALO’s
16 hard won advertising, sales, consumer recognition, and goodwill in connection with
17 the Moto Legging Trade Dress, thereby creating confusion in the marketplace with
18 regard to the Moto Legging Trade Dress, and irreparable injury to ALO’s reputation
19 in the market.
20 47. As a result of Defendants’ wrongful acts alleged herein, ALO has
21 suffered and will continue to suffer monetary damage in an amount not thus far
22 determined.
23 48. On information and belief, Defendants’ acts of trade dress infringement
24 in violation of the Lanham Act have caused financial injury and damages to ALO
25 and have been willful, making this an exceptional case within the meaning of the
26
10965.004/1200439v1 12
COMPLAINT
1 Lanham Act, 15 U.S.C. section 1117, thereby entitling ALO to damages, attorneys’
2 fees, and costs.
3 49. Defendants’ acts and conduct constitute trade dress infringement that
4 has caused and, unless restrained and enjoined by this Court, will continue to cause
5 irreparable harm, damage, and injury to ALO’s good will and business reputation.
6 50. As a result of Defendants’ acts, ALO has suffered, is suffering, and
7 will continue to suffer irreparable injury for which ALO has no adequate remedy at
8 law. ALO is therefore entitled to a permanent injunction against further infringing
9 conduct by Defendants and an amount not as yet determined or ascertainable. At a
10 minimum, ALO is entitled to injunctive relief, to an accounting of Defendants’
11 profits, to damages, and to costs.
12 51. In light of the knowingly fraudulent and malicious use of confusingly
13 similar imitations of ALO’s Moto Legging Trade Dress, including renaming the
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Infringing Product simply to avoid detection, and the common desire to deter
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15 Defendants from similar conduct in the future, ALO is additionally entitled to

16 punitive damages.
17 THIRD CLAIM FOR RELIEF
18 (Unfair Competition)
20 allegation contained in paragraphs 1 through 51 above, inclusive, as though set forth
21 in full herein.
22 53. Defendants’ unauthorized actions and conduct as alleged herein
23 constitute unfair competition under California common law, and have created and
24 will continue to create a likelihood of confusion and irreparable harm, damage, and
25 injury to ALO, including but not limited to injury to ALO's goodwill and business
26 reputation, unless restrained and enjoined by this Court.
10965.004/1200439v1 13
COMPLAINT
1 54. On information and belief, Defendants’ unfair competition with ALO

2 was, and is, done with full knowledge of ALO’s statutory and common law rights
3 and without regard to the likelihood of confusion to the public created by
4 Defendants’ activities.
5 55. Defendants have caused and, unless restrained and enjoined by this
6 Court, will continue to cause irreparable harm, damage and injury to ALO,
7 including but not limited to injury to ALO’s goodwill and business reputation.
8 56. As a result of Defendants’ acts, ALO has suffered, is suffering, and
9 will continue to suffer irreparable injury for which ALO has no adequate remedy at
10 law. ALO is therefore entitled to a permanent injunction against further infringing
11 conduct by Defendants.
12 PRAYER
13 WHEREFORE, Plaintiff prays for an order and judgment against Defendants

(650) 327-4200
and requests relief as follows:

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15 1. A determination that this action is an exceptional case pursuant to the

16 Patent Act;
17 2. A determination that Defendants have infringed the ‘731 Patent;
18 3. That Defendants and their officers, directors, partners, agents,
19 servants, employees, attorneys, confederates, and all persons acting for, with, by,
20 through or under them, and any others within their control or supervision, and all
21 others in active concert or participation with the above, be enjoined during the
22 pendency of this action and permanently thereafter from infringing the ‘731 Patent
23 in the manufacturing, marketing, sales, distribution, promotion, advertising,
24 identification, or in any other manner in connection with apparel in the United
25 States;
26
10965.004/1200439v1 14
COMPLAINT
1 4. That Defendants, and each of their officers, directors, partners, agents,

2 servants, employees, attorneys, confederates, and all persons acting for, with, by,
3 through or under them, and any others within their control or supervision, and all
4 others in active concert or participation with the above, be enjoined during the
5 pendency of this action and permanently thereafter from representing to anyone,
6 either orally or in writing, that their business or goods are affiliated with ALO in
7 any way or are approved by ALO;
8 5. For an order requiring Defendants to cease offering for sale their
9 infringing products, and to destroy all patterns, stencils, molds, plates, masters, or
10 means of creating the infringing items;
11 6. For an order requiring Defendants to instruct, within thirty (30) days
12 after the entry of any preliminary or permanent injunction, any third-party website
13 that carries Defendants’ infringing products to cease selling those products at the
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earliest possible date;

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15 7. For an order requiring Defendants to file with the Clerk of this Court
16 and serve ALO, within thirty (30) days after the entry of any preliminary or
17 permanent injunction, a report in writing, under oath, setting forth in detail the
18 manner and form in which Defendants have complied with 1 through 6 above;
19 8. For an award of Defendants’ profits and ALO’s damages according to
20 proof at trial and as detailed in this Complaint;
21 9. For an award of three times ALO’s damages or Defendants’ profits in
22 view of the intentional and willful nature of Defendants’ acts, pursuant to 35 U.S.C.
23 section 285 and as detailed in this Complaint;
24 10. For an order requiring Defendants to account for and pay to ALO all
25 gains, profits and advantages derived by Defendants from the unlawful activities
26 alleged herein, and/or as a result of unjust enrichment as detailed in this Complaint;
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COMPLAINT
1 11. For an award of punitive damages according to proof;

2 12. For an award of ALO’s attorneys’ fees for bringing and prosecuting
3 this action pursuant to 35 U.S.C. section 285 and all applicable state statutes;
4 13. For an award of ALO’s costs and expenses incurred in bringing and
5 prosecuting this action pursuant to 35 U.S.C. section 285 and all applicable state
6 statutes; and
7 14. For such further relief as this Court shall deem just and proper.
8 JURY DEMAND
9 Plaintiff ALO, LLC hereby demands trial by jury in the above entitled action
10 pursuant to Fed. R. Civ. P. 38(b).
11
12 Dated: December 18, 2018

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(650) 327-4200
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14 By: /s/ Andrew P. Holland

Andrew P. Holland
15 Attorneys for Plaintiff
ALO, LLC
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10965.004/1200439v1 16
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Case 2:18-cv-10491 Document 1-1 Filed 12/18/18 Page 1 of 9 Page ID #:17
EXHIBIT A
Exhibit A
True and Correct Copy of the ’731 Patent

EXHIBIT B
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EXHIBIT C
Table 1: Comparison of ’731 Patent

and Defendants’ Infringing Biker Leggings
’731 Patent Figure Defendant’s Infringing Leggings
Figure 1
EXHIBIT D
Table 2: Moto Legging Trade Dress Comparison

ALO’s Defendants’
Moto Legging Trade Dress Biker Legging
EXHIBIT E
T HOITS LAW 400 Main Street, Suite 250

A Professional Corporation Los Altos, California 94022
TEL (650) 327-4200
FAX (650) 325-5572
www.thoits.com
Andrew P. Holland (650) 330-4709

aholland@thoits.com
March 22, 2017
Via U.S. Mail and E-Mail
90 Degree by Reflex (“90 Degree”)

525 7th Avenue
Suite 1601
New York, NY 10018
info@90degreebyreflex.com
Re: Cease and Desist of Infringement of U.S. Patent No. D774,731 S
To whom it may concern:
We represent Color Image Apparel, Inc. (“Color Image”), which produces and sells
garments under various brands, including the Bella + Canvas and Alo brands. It recently came
to Color Image’s attention that 90 Degree is advertising, promoting and selling its “Moto
Leggings With Pleated Mesh Insert” for sale in the United States.
Color Image would like to bring to your attention that it is the owner of United States
Design Patent No. D774,731 S (the “‘731 patent”). The ‘731 patent covers products sold
under Color Image’s “Moto Legging” collection. A copy of the ‘731 patent is enclosed. As the
owner of the ‘731 patent, we wanted to alert you that 90 Degree’s “Moto Leggings With
Pleated Mesh Insert” potentially infringes Color Image’s patent rights.
Under United States Code, Title 35, patent infringement is defined as “the unauthorized
making, using, offering for sale, or selling any patented invention within the United States
or U.S. Territories, or importing into the United States of any patented invention during the
term of the patent.” See 35 U.S.C. § 271. Under this Title, available remedies for patent
infringement include injunctive relief and damages or other monetary relief. Similarly, under
§ 285 of this Title, attorney’s fees may also be available.
In addition to notifying you of Color Image’s patent rights, the purpose of this letter is to
request that you:
1) Immediately cease and desist selling, offering for sale, advertising, distributing,
33070.032/919751v1
90 Degree
March 22, 2017
Page 2
making, using, and/or importing any products, including but not limited to your
“Moto Leggings With Pleated Mesh Insert,” that infringe upon the intellectual
property rights of our client; and
2) Provide written assurances of the same.
Without waiving and reserving all rights, if 90 Degree would prefer to discuss a potential
licensing arrangement with our client, please contact me as soon as possible.
Please respond to this letter by March 31, 2017. Color Image hopes that it can resolve
this matter amicably, but will not hesitate to take appropriate legal action to protect its
intellectual property rights, if necessary. Color Image reserves all of its rights and remedies,
at law or in equity. I look forward to your prompt response.
Sincerely,
THOITS LAW
Andrew P. Holland
Andrew P. Holland
APH/kgh
33070.032/919751v1
Case 2:18-cv-10491 Document
UNITED STATES 1-6 Filed
DISTRICT COURT, 12/18/18
CENTRAL Page
DISTRICT 1 of 3 Page ID #:37
OF CALIFORNIA
CIVIL COVER SHEET
I. (a) PLAINTIFFS ( Check box if you are representing yourself ) DEFENDANTS ( Check box if you are representing yourself )
ALO, LLC, a California Limited Liability Company REFLEX PERFORMANCE RESOURCES, INC. DBA 90
DEGREE BY REFLEX, a New York Corporation; DOES 1
through 10, inclusive
(b) County of Residence of First Listed Plaintiff Los Angeles County of Residence of First Listed Defendant New York
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
(c) Attorneys (Firm Name, Address and Telephone Number) If you are Attorneys (Firm Name, Address and Telephone Number) If you are
representing yourself, provide the same information. representing yourself, provide the same information.
Andrew P. Holland, Misasha S. Graham, Michael Y. Hsueh
Thoits Law 400 Main Street, Suite 250, Los Altos, CA 94022
(650) 327-4200
III. CITIZENSHIP OF PRINCIPAL PARTIES-For Diversity Cases Only
II. BASIS OF JURISDICTION (Place an X in one box only.) (Place an X in one box for plaintiff and one for defendant)
1. U.S. Government 3. Federal Question (U.S. PTF DEF Incorporated or Principal Place PTF DEF
Citizen of This State of Business in this State
Plaintiff Government Not a Party) 1 1 4 4
Citizen of Another State Incorporated and Principal Place 5 5
2 2
of Business in Another State
2. U.S. Government 4. Diversity (Indicate Citizenship Citizen or Subject of a
3 3 Foreign Nation 6 6
Defendant of Parties in Item III) Foreign Country
IV. ORIGIN (Place an X in one box only.)
1. Original 2. Removed from 3. Remanded from 4. Reinstated or 5. Transferred from Another 6. Multidistrict 8. Multidistrict
Proceeding State Court Appellate Court Reopened District (Specify) Litigation - Litigation -
Transfer Direct File
V. REQUESTED IN COMPLAINT: JURY DEMAND: Yes No (Check "Yes" only if demanded in complaint.)
CLASS ACTION under F.R.Cv.P. 23: Yes No MONEY DEMANDED IN COMPLAINT: $
VI. CAUSE OF ACTION (Cite the U.S. Civil Statute under which you are filing and write a brief statement of cause. Do not cite jurisdictional statutes unless diversity.)
35 U.S.C. section 271, 15 U.S.C. section 1125; Complaint for patent infringement, trade dress infringement and unfair
competition.
VII. NATURE OF SUIT (Place an X in one box only).
OTHER STATUTES CONTRACT REAL PROPERTY CONT. IMMIGRATION PRISONER PETITIONS PROPERTY RIGHTS
375 False Claims Act 110 Insurance 240 Torts to Land Habeas Corpus: 820 Copyrights
462 Naturalization
245 Tort Product Application 463 Alien Detainee 830 Patent
376 Qui Tam 120 Marine
Liability 465 Other 510 Motions to Vacate 835 Patent – Abbreviated
(31 USC 3729(a)) 130 Miller Act 290 All Other Real Immigration Actions Sentence New Drug Application
400 State 140 Negotiable Property 530 General 840 Trademark
Reapportionment Instrument TORTS
TORTS 535 Death Penalty
150 Recovery of PERSONAL PROPERTY
410 Antitrust PERSONAL INJURY Other:
430 Banks and Banking Overpayment & 540 Mandamus/Other
310 Airplane 370 Other Fraud SOCIAL SECURITY
Enforcement of
450 Commerce/ICC Judgment 550 Civil Rights 861 HIA (1395ff)
315 Airplane 371 Truth in Lending
Rates/Etc. 555 Prison Condition
Product Liability 380 Other Personal 862 Black Lung (923)
460 Deportation 151 Medicare Act
Property Damage 560 Civil Detainee 863 DIWC/DIWW (405 (g))
152 Recovery of 320 Assault, Libel &
470 Racketeer Influ- Conditions of
Defaulted Student Slander 385 Property Damage 864 SSID Title XVI
enced & Corrupt Org. Confinement
Loan (Excl. Vet.) 330 Fed. Employers’ Product Liability 865 RSI (405 (g))
480 Consumer Credit
153Recovery of Liability BANKRUPTCY
490 Cable/Sat TV Overpayment of 340 Marine FORFEITURE/PENALTY
Vet. Benefits 422 Appeal 28 FEDERAL TAX SUITS
850 Securities/Com-
345 Marine Product USC 158
modities/Exchange 160 Stockholders' 625 Drug Related 870 Taxes (U.S. Plaintiff or
Liability
Suits 423 Withdrawal 28 Seizure of Property 21 Defendant)
890 Other Statutory 350 Motor Vehicle USC 157 USC 881 871 IRS-Third Party 26 USC
Actions 190 Other 355 Motor Vehicle CIVIL RIGHTS 690 Other 7609
891 Agricultural Acts Contract Product Liability 440 Other Civil Rights LABOR
893 Environmental 195 Contract
360 Other Personal 441 Voting 710 Fair Labor Standards
Matters Product Liability
Injury Act
442 Employment
895 Freedom of Info. 196 Franchise
362 Personal Injury- 720 Labor/Mgmt.
Act 443 Housing/
REAL PROPERTY Med Malpratice Relations
Accommodations
896 Arbitration 365 Personal Injury-
210 Land 445 American with 740 Railway Labor Act
899 Admin. Procedures Product Liability
Condemnation Disabilities- 751 Family and Medical
Act/Review of Appeal of 367Health Care/ Employment
220 Foreclosure Leave Act
Agency Decision Pharmaceutical
230 Rent Lease & 446 American with 790 Other Labor
950 Constitutionality of Personal Injury
Ejectment Disabilities-Other Litigation
State Statutes Product Liability
448 Education 791 Employee Ret. Inc.
368Asbestos
Personal Injury Security Act
Product Liability
FOR OFFICE USE ONLY: Case Number:
CV-71 (05/17) CIVIL COVER SHEET Page 1 of 3

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www.FormsWorkFlow.com
CENTRAL Page
OF CALIFORNIA
CIVIL COVER SHEET
VIII. VENUE: Your answers to the questions below will determine the division of the Court to which this case will be initially assigned. This initial assignment is subject
to change, in accordance with the Court's General Orders, upon review by the Court of your Complaint or Notice of Removal.
QUESTION A: Was this case removed

from state court? STATE CASE WAS PENDING IN THE COUNTY OF: INITIAL DIVISION IN CACD IS:
Yes No
Los Angeles, Ventura, Santa Barbara, or San Luis Obispo Western
If "no, " skip to Question B. If "yes," check the
box to the right that applies, enter the Orange Southern
corresponding division in response to
Question E, below, and continue from there. Riverside or San Bernardino Eastern
QUESTION B: Is the United States, or B.1. Do 50% or more of the defendants who reside in
one of its agencies or employees, a the district reside in Orange Co.? YES. Your case will initially be assigned to the Southern Division.
PLAINTIFF in this action? Enter "Southern" in response to Question E, below, and continue
from there.
check one of the boxes to the right
Yes No NO. Continue to Question B.2.
B.2. Do 50% or more of the defendants who reside in

If "no, " skip to Question C. If "yes," answer the district reside in Riverside and/or San Bernardino YES. Your case will initially be assigned to the Eastern Division.
Question B.1, at right. Counties? (Consider the two counties together.) Enter "Eastern" in response to Question E, below, and continue
from there.
check one of the boxes to the right . NO. Your case will initially be assigned to the Western Division.
Enter "Western" in response to Question E, below, and continue
from there.
QUESTION C: Is the United States, or C.1. Do 50% or more of the plaintiffs who reside in the YES. Your case will initially be assigned to the Southern Division.
one of its agencies or employees, a district reside in Orange Co.? Enter "Southern" in response to Question E, below, and continue
DEFENDANT in this action? from there.
check one of the boxes to the right
Yes No
NO. Continue to Question C.2.
C.2. Do 50% or more of the plaintiffs who reside in the YES. Your case will initially be assigned to the Eastern Division.
If "no, " skip to Question D. If "yes," answer district reside in Riverside and/or San Bernardino Enter "Eastern" in response to Question E, below, and continue
Question C.1, at right. Counties? (Consider the two counties together.) from there.
check one of the boxes to the right NO. Your case will initially be assigned to the Western Division.
Enter "Western" in response to Question E, below, and continue
from there.
A. B. C.
Riverside or San Los Angeles, Ventura,
QUESTION D: Location of plaintiffs and defendants? Bernardino County Santa Barbara, or San
Orange County
Luis Obispo County
Indicate the location(s) in which 50% or more of plaintiffs who reside in this district
reside. (Check up to two boxes, or leave blank if none of these choices apply.)
Indicate the location(s) in which 50% or more of defendants who reside in this
district reside. (Check up to two boxes, or leave blank if none of these choices
apply.)
D.1. Is there at least one answer in Column A? D.2. Is there at least one answer in Column B?
Yes No Yes No
If "yes," your case will initially be assigned to the5 5If "yes," your case will initially be assigned to the
SOUTHERN DIVISION. EASTERN DIVISION.
Enter "Southern" in response to Question E, below, and continue from there. Enter "Eastern" in response to Question E, below.
If "no," go to question D2 to the right. If "no," your case will be assigned to the WESTERN DIVISION.
Enter "Western" in response to Question E, below.
QUESTION E: Initial Division? INITIAL DIVISION IN CACD

Enter the initial division determined by Question A, B, C, or D above:
WESTERN
QUESTION F: Northern Counties?
Do 50% or more of plaintiffs or defendants in this district reside in Ventura, Santa Barbara, or San Luis Obispo counties? Yes No
CV-71 (05/17) CIVIL COVER SHEET Page 2 of 3 American LegalNet, Inc.
CENTRAL Page
OF CALIFORNIA
CIVIL COVER SHEET
IX(a). IDENTICAL CASES: Has this action been previously filed in this court? NO YES
If yes, list case number(s):
IX(b). RELATED CASES: Is this case related (as defined below) to any civil or criminal case(s) previously filed in this court?
NO YES
If yes, list case number(s):
Civil cases are related when they (check all that apply):
A. Arise from the same or a closely related transaction, happening, or event;

B. Call for determination of the same or substantially related or similar questions of law and fact; or
C. For other reasons would entail substantial duplication of labor if heard by different judges.
Note: That cases may involve the same patent, trademark, or copyright is not, in itself, sufficient to deem cases related.
A civil forfeiture case and a criminal case are related when they (check all that apply):
A. Arise from the same or a closely related transaction, happening, or event;
B. Call for determination of the same or substantially related or similar questions of law and fact; or
C. Involve one or more defendants from the criminal case in common and would entail substantial duplication of
labor if heard by different judges.
X. SIGNATURE OF ATTORNEY
(OR SELF-REPRESENTED LITIGANT): /s/ Andrew P. Holland DATE: December 18, 2018
Notice to Counsel/Parties: The submission of this Civil Cover Sheet is required by Local Rule 3-1. This Form CV-71 and the information contained herein
neither replaces nor supplements the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. For
more detailed instructions, see separate instruction sheet (CV-071A).
Key to Statistical codes relating to Social Security Cases:
Nature of Suit Code Abbreviation Substantive Statement of Cause of Action

All claims for health insurance benefits (Medicare) under Title 18, Part A, of the Social Security Act, as amended. Also,
861 HIA include claims by hospitals, skilled nursing facilities, etc., for certification as providers of services under the program.
(42 U.S.C. 1935FF(b))
862 BL All claims for "Black Lung" benefits under Title 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. (30 U.S.C.
923)
863 All claims filed by insured workers for disability insurance benefits under Title 2 of the Social Security Act, as amended; plus
DIWC all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405 (g))
863 DIWW All claims filed for widows or widowers insurance benefits based on disability under Title 2 of the Social Security Act, as
amended. (42 U.S.C. 405 (g))
SSID All claims for supplemental security income payments based upon disability filed under Title 16 of the Social Security Act, as
864 amended.
All claims for retirement (old age) and survivors benefits under Title 2 of the Social Security Act, as amended.
865 RSI (42 U.S.C. 405 (g))
CV-71 (05/17) CIVIL COVER SHEET Page 3 of 3
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ALO v. Reflex Performance - Complaint

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ALO v. Reflex Performance - Complaint

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Case 2:18-cv-10491 Document 1 Filed 12/18/18 Page 1 of 16 Page ID #:1

1 Andrew P. Holland/Bar No. 224737

13 ALO, LLC a California Limited No.

15 developed in the athleisure/athletic wear market to create its infringing products.

13 California, and of this judicial district in particular.

JURISDICTION AND VENUE

13 24. As the result of ALO’s extensive marketing, advertising and

13 29. A side by side visual comparison of ALO’s Moto Legging Trade

1 Defendants and/or their infringing product is authorized, sponsored, endorsed,

1 36. Defendants’ purposeful behavior with regard to renaming the Infringing

13 allegation contained in paragraphs 1 through 38 above, inclusive, as though set forth

15 40. Defendants, without authorization from ALO, have made, used,

1 43. The Moto Legging Trade Dress is a unique, distinctive, non-functional

15 Defendants from similar conduct in the future, ALO is additionally entitled to

1 54. On information and belief, Defendants’ unfair competition with ALO

13 WHEREFORE, Plaintiff prays for an order and judgment against Defendants

and requests relief as follows:

15 1. A determination that this action is an exceptional case pursuant to the

1 4. That Defendants, and each of their officers, directors, partners, agents,

earliest possible date;

1 11. For an award of punitive damages according to proof;

12 Dated: December 18, 2018

14 By: /s/ Andrew P. Holland

True and Correct Copy of the ’731 Patent

 vÿbv  by ÿXÿy ÿÿ 

789.-ÿ:/.;ÿ<4=<ÿ-46.ÿ0>?/. E85:F1.?ÿ<4ÿ-46.ÿ/.==4>= E8/2ÿ=.0-ÿ/.==4>= H6IJ01ÿ7-88:Hÿ4>1.-/4>?

Table 1: Comparison of ’731 Patent

Table 2: Moto Legging Trade Dress Comparison

T HOITS LAW 400 Main Street, Suite 250

Andrew P. Holland (650) 330-4709

March 22, 2017

Via U.S. Mail and E-Mail

90 Degree by Reflex (“90 Degree”)

Re: Cease and Desist of Infringement of U.S. Patent No. D774,731 S

To whom it may concern:

2) Provide written assurances of the same.

CV-71 (05/17) CIVIL COVER SHEET Page 1 of 3

QUESTION A: Was this case removed

B.2. Do 50% or more of the defendants who reside in

Enter "Western" in response to Question E, below.

QUESTION E: Initial Division? INITIAL DIVISION IN CACD

If yes, list case number(s):

If yes, list case number(s):

A. Arise from the same or a closely related transaction, happening, or event;

A. Arise from the same or a closely related transaction, happening, or event;

Key to Statistical codes relating to Social Security Cases:

Nature of Suit Code Abbreviation Substantive Statement of Cause of Action

CV-71 (05/17) CIVIL COVER SHEET Page 3 of 3

American LegalNet, Inc.

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