Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 1 of 13

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

§
Battle Foam, LLC §
Plaintiff, §
§ CIVIL ACTION NO. 1:10-cv-116
v. § JURY DEMAND
§
Outrider Hobbies and Bryan Wade §
Defendants. §
________________________________ §
§

COMPLAINT FOR TRADEMARK INFRINGEMENT, UNFAIR COMPETITION,

TRADEMARK DILUTION, DECEPETIVE TRADE PRACTICES AND
MISAPPROPRIATION OF TRADE SECRETS

COMPLAINT

Plaintiff Battle Foam, LLC, (“Battle Foam”) for its Complaint against Outrider

Hobbies and Bryan Wade (“Outrider”) hereby demands a jury trial and alleges as follows:

NATURE OF THE ACTION

1. This is an action for trademark infringement, unfair competition and false

designation of origin in violation of 15 U.S.C. § 1125(a) et seq.; trademark dilution in violation

of 15 U.S.C. § 1125(c) et seq.; unfair competition and deceptive trade practices in violation of

the New Hampshire Consumer Protection Act, RSA 358-A et seq.; injury to business reputation,

dilution and common law trademark infringement under New Hampshire’s Trademark statute,

RSA 350-A et seq.; irreparable harm from the misappropriation of trade secrets in violation of

the New Hampshire Uniform Trade Secrets Act, RSA 350-B et seq.; common law trademark

1
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 2 of 13

infringement and unfair competition, and for such other relief as the Court deems just and

proper.

THE PARTIES

2. Plaintiff Battle Foam, LLC is an Arizona limited liability company that

specializes in laser cutting foam for carrying cases sold in the war gaming market under the

mark, BATTLE FOAM, through their website www.battlefoam.com, the Plaintiff having a

principal place of business at 240 N. Sunway Drive Suite 102 Gilbert, AZ.

3. On information and belief, Defendants are operating a laser cutting foam business

selling the same products under the mark, FOAM CORPS, and having the domain

www.outriderhobbies.com and having a principal place of business at 85 W. Combs Rd., Suite

101-231 Queen Creek, AZ.

J URISDICTION AND VENUE

4. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1338 and

15 U.S.C. § 1121, as well as supplemental jurisdiction over the state law claims under 28 U.S.C.

§ 1367.

5. This action arises from Defendants’ manufacture, offer for sale, sale and

distribution of protective foam trays under the mark FOAM CORPS in and through the District

of New Hampshire which are deceptive copies of Plaintiff’s products and confusingly similar

trademarks, and from Defendants’ unfair and deceptive business practices.

6. This Court has personal jurisdiction over Defendants since Defendants have

engaged in acts constituting doing business in this State, and have intentionally directed its

tortious activities toward New Hampshire. Defendants have delivered its infringing products

into the stream of commerce with the expectation that they will be purchased by consumers in

2
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 3 of 13

this State.

7. Venue is proper in this district under 28 U.S.C. § 1391(b)-(c) as Defendants have

sold product in this District, and advertises products for sale to residents of New Hampshire on

their website, www.outriderhobbies.com.

INTRODUCTION

8. Battle Foam brings this action to protect its BATTLE FOAM trademark against

continued infringement by Defendants. Battle Foam and its predecessors in interest have used the

BATTLE FOAM mark since at least as early as January 1, 2009 in connection with laser cut foam

trays for protecting delicate articles.

9. Conventional foam trays can protect most any delicate article and are generally cut

with inaccurate, clumsy and expensive industrial knives. The foam trays manufactured and sold

by Battle Foam are cut with lasers by a proprietary and patent pending process which permits a

highly detailed and custom profile to be formed in the foam quickly and without great expense.

10. The custom cut foam trays are sold online and through specialty stores and

specifically for use with carry cases sold in the war gaming market for protecting handpainted

models of soldiers, military vehicles, weapons and various military type articles used for example

in popular wargames such as Warhammer®.

11. Defendants are wrongfully using and have purposefully used the mark FOAM

CORPS in connection with the exact same online and retail marketing and sales of identical goods

as Plaintiff.

12. Defendants’ use of FOAM CORPS in conjunction with the exact same goods and

by the exact same proprietary and patent pending process as Battle Foam violates Battle Foam’s

rights and is likely to cause confusion among consumers unless such use is enjoined.

3
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 4 of 13

PLAINTIFF’S RIGHTS

13. Battle Foam began a laser cutting foam business to fabricate carrying cases for

model armies for the war gaming market under the name BATTLE FOAM at least as early as

January 1, 2009. As shown in the attached Exhibit A, Battle Foam applied for a Federal

Trademark Registration for BATTLE FOAM with the United States Patent and Trademark

Office filed under Application No. 77/676,475 filed on 02/23/2009 which has been allowed

and is currently awaiting publication.

14. Plaintiff registered the domain name, www.battlefoam.com on October 9, 2008

as seen in Exhibit B, and incorporated under the name, Battle Foam, LLC, on July 23, 2009.

15. Battle Foam has developed a proprietary process for the cutting of foam using a

laser and has filed U.S. Patent Application No. 12/479,410 the (“`410 patent application”) filed

on June 5, 2009 with a priority date of April 13, 2009. A copy of the same is attached as

Exhibit C.

16. Battle Foam has advertised and promoted its BATTLE FOAM Mark, and has

manufactured and facilitated substantial sales of custom designed laser cut foam for carrying

cases under the BATTLE FOAM Mark through a variety of vendors and also via its website

www.battlefoam.com, a copy of Plaintiff’s websites’ landing page is attached as Exhibit D.

17. As a result of these activities, the BATTLE FOAM mark has achieved

widespread consumer recognition in the industry, making it a strong mark entitled to broad

protection against infringement.

18. Battle Foam and its BATTLE FOAM Mark have acquired considerable value and have

become well-known among the relevant consuming public and the trade as identifying and

distinguishing a commercial source for such custom designed laser cut foam products for carrying

4
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 5 of 13

cases.

DEFENDANTS’ WRONGFUL CONDUCT

19. Defendants have undertaken the exact same services, namely the manufacture of

the same goods and selling of laser cut foam products for carrying cases under the name

FOAM CORPS through www.outriderhobbies.com.

20. Upon information and belief, Defendants were aware of Battle Foam and/or its

BATTLE FOAM mark before it sought the use of FOAM CORPS and before it used or sold

any goods under the FOAM CORPS marks in the United States.

21. Upon information and belief Defendants surreptitiously obtained access to

and/or information from Battle Foam’s industrial facility and misappropriated trade secrets of

Battle Foam’s proprietary process of cutting foam using a laser which is the subject of Battle

Foam’s `410 patent application.

22. Upon information and belief Defendants induced others to obtain access to

Battle Foam’s industrial facility to misappropriate Battle Foam’s proprietary process of cutting

foam using a laser and to provide Defendants with these trade secrets.

23. Upon information and belief Defendants using Battle Foam’s misappropriated

trade secrets have introduced products of inferior quality to the marketplace under the FOAM

CORPS mark that consumers believe to be Battle Foam’s products causing irreparable harm to

Battle Foam as shown by Exhibit E.

24. Defendants’ services are directly competitive and Defendants’ website sells the

exact same laser cut foam products as Battle Foam to the same markets and types of

consumers.

25. Defendants intend by their use of FOAM CORPS marks to trade off the

5
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 6 of 13

goodwill of Battle Foam and the BATTLE FOAM marks for the same goods and services.

26. Use of the FOAM CORPS marks by Defendants is without the permission or

consent of Battle Foam. Battle Foam has no control over the manner of use of the marks or the

quality of products advertised, promoted, and offered under them by Defendants.

COUNT I – TRADEMARK INFRINGEMENT

27. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set

forth herein.

28. Defendants’ use in commerce of the FOAM CORPS mark is confusingly

similar to the BATTLE FOAM marks and services and is used in a manner that is likely to

cause confusion or mistake or is likely to deceive consumers.

29. By using the FOAM CORPS marks with the knowledge that Plaintiff owns and

has used, and continues to use, its Marks in interstate commerce, Defendants have intended to

cause confusion, cause mistake, or deceive consumers.

30. Defendants are using a mark identical and/or confusingly similar to Plaintiff’s

BATTLE FOAM Mark in connection with the sale, offering for sale or advertising of services

in a manner that is likely to cause confusion, or to cause mistake, or to deceive consumers as to

affiliation, connection, or association with Battle Foam or as to the origin, sponsorship, or

approval of Defendants’ services or commercial activities by Battle Foam.

31. Defendants’ use of the FOAM CORPS mark has created a likelihood of

confusion among consumers who may falsely believe that Defendants’ business or web sites

are associated with Battle Foam, or that Battle Foam sponsors or approves of Defendants’

services or commercial activities.

32. As a direct and proximate result of Defendants infringement, Battle Foam has

6
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 7 of 13

suffered, and will continue to suffer, monetary loss and irreparable injury to its business,

reputation and goodwill.

COUNT II – FEDERAL UNFAIR COMPETITION

33. Plaintiff incorporates the allegations in the preceding paragraphs as if fully

set forth herein.

34. Defendants’ use of the FOAM CORPS mark in commerce in connection with the

manufacture and sale of custom designed laser cut foam carrying cases is likely to cause confusion,

mistake, or deception as to the source of origin of the service and products offered by

Defendants in that consumers and potential consumers are likely to believe that such products

are provided by, sponsored by, approved by, licensed by, affiliated or associated with, or in some

other way legitimately connected to Battle Foam and its BATTLE FOAM mark in violation of

15 U.S.C. § 1125(a).

35. As a direct and proximate result of the likely confusion, mistake, or deception,

Battle Foam has suffered and will continue to suffer irreparable harm if the conduct of

Defendants is not enjoined.

36. Pursuant to 15 U.S.C. § 1117, Battle Foam is entitled to recover all of Defendants’

profits, Battle Foam’s damages, and the costs of this action. The intentional nature of

Defendants’ unlawful conduct also renders this an “exceptional case,” entitling Battle Foam to

enhanced damages and an award of attorney fees under 15 U.S.C. § 1117(a).

COUNT III – TRADEMARK DILUTION

37. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth

herein.

38. The BATTLE FOAM marks are famous trademarks within the meaning of the

7
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 8 of 13

Anti-Dilution Act, 15 U.S.C. 1125(c).

39. Battle Foam has no control over the quality of the www.outriderhobbies.com and

FOAM CORPS website, services, advertising and other promotional materials, its use of the

FOAM CORPS marks, and its misappropriation of the trade dress of Battle Foam as a thematic

marketing concept for a custom designed laser cut foam business.

40. Defendants’ operation of a custom designed laser cut foam business, its use and

dissemination of material bearing the FOAM CORPS marks, and its misappropriation of the trade

dress and marketing concept of Battle Foam, is and will continue to result in the dilution of the

distinctive nature of the Battle Foam mark through blurring, in violation of 15 U.S.C. 1125(c).

41. Defendants’ wrongful conduct constitutes an extreme threat to the distinctiveness

of the BATTLE FOAM marks that Battle Foam has expended great efforts to develop and

maintain through its control and usage of the BATTLE FOAM mark.

42. The distinctive nature of the BATTLE FOAM marks is of enormous value, and

Battle Foam is suffering and will continue to suffer irreparable harm and blurring of the BATTLE

FOAM marks if Defendants’ wrongful conduct is allowed to continue.

43. Defendants’ production of inferior quality products bearing the FOAM CORPS

marks have caused consumer complaints to be directed to Battle Foam because consumers are

mistaken as to the source of the inferior products.

44. Defendants’ operation of a custom designed laser cut foam business, its use and

dissemination of material bearing the FOAM CORPS marks, and its misappropriation of the trade

dress and marketing concept of Battle Foam will likely continue unless enjoined by this Court.

45. Battle Foam is entitled to a permanent injunction against Defendants, as well as all

other remedies available under the Lanham Act, including, but not limited to, compensatory

8
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 9 of 13

damages; treble damages, disgorgement of profits; and costs and attorney’s fees.

COUNT IV – UNFAIR COMPETITION UNDER

NEW HAMPSHIRE CONSUMER PROTECTION ACT

46. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth

herein.

47. Defendants’ use of the FOAM CORPS marks as a trade and domain name have

passed off their services of custom designed laser cut foam products for purchase and sale as the

services of Battle Foam.

48. Defendants have caused a likelihood of confusion as to the source, sponsorship,

approval, affiliation and association of its goods and services with the goods and services of

Battle Foam.

49. Defendants have committed acts of unfair competition and/or deceptive acts or

practices which fall within New Hampshire’s Consumer Protection Act, RSA 358-A, and one or

more of the enumerated unlawful acts set forth under RSA 358-A:2.

50. Battle Foam has been injured and has suffered irreparable harm as to the

continuance of which monetary relief is not sufficient, and requests that Defendant be enjoined

from further use of the FOAM CORPS marks and from contacting Battle Foam’s customers and

advertisers.

COUNT V – DECEPTIVE BUSINESS PRACTICES UNDER

NEW HAMPSHIRE CONSUMER PROTECTION ACT

51. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth

herein.

52. Defendants have engaged in deceptive trade practices because its use of the FOAM

CORPS mark is likely to cause confusion, mistake, or deception as to the source of origin of the

goods offered by Defendants under the marks in that consumers and potential consumers are likely to
9
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 10 of 13

believe that such goods are provided by, sponsored by, approved by, licensed by, affiliated or

associated with, or in some other way legitimately connected to Battle Foam or the products Battle

Foam offers under its mark.

53. As a direct and proximate result of the likely confusion, mistake, or deception caused

by Defendants, Battle Foam has suffered and will continue to suffer irreparable harm if Defendants’

conduct is not enjoined.

54. Pursuant to R.S.A. §358-A-10 Battle Foam is entitled to injunctive relief and to the

amount of actual damages. The Defendants’ actions under this statute were willful allowing for the

Plaintiff to receive up to 3 times but not less than 2 times the amount of actual damages and recovery

of costs and attorney fees.

COUNT VI-IRREPERABLE HARM FROM THE MISAPPROPRIATION

OF TRADE SECRETS IN VIOLATION OF THE
NEW HAMPSHIRE UNIFORM TRADE SECRETS ACT

55. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth

herein.

56. Battle Foam’s proprietary process of laser cutting foam has substantial independent

economic value, is not generally known, is not readily ascertainable by proper means and is the

subject matter of a currently pending U.S. patent application.

57. Defendant’s improperly acquired and misappropriated Battle Foam’s proprietary

process of laser cutting foam.

58. Defendant improperly induced others to misappropriate trade secrets of Battle

Foam’s proprietary process of laser cutting foam.

59. Pursuant to R.S.A. §350-B-2 Battle Foam is entitled to injunctive relief and to the

amount of actual damages and the unjust enrichment caused by the misappropriation. The

10
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 11 of 13

Defendants’ actions under this statute were willful and malicious allowing for the Plaintiff to receive

exemplary damages in an amount not exceeding twice the amount of actual and unjust enrichment

damages and attorney fees.

COUNT VII –INJ URY TO BUSINESS REPUTATION AND DILUTION OF

TRADEMARK UNDER NEW HAMPSHIRE TRADEMARK ACT R.S.A. 350-A

60. Plaintiff incorporates the allegations in the preceding paragraphs as if fully set forth

herein.

61. Battle Foam has acquired the rights to the mark in good faith at common law.

62. Defendants’ acts constitute trademark infringement under the common law in

violation of Battle Foam’s rights.

63. Defendants’ acts were taken in willful, deliberate, and/or intentional disregard of

Battle Foam’s rights.

64. Battle Foam has suffered injury to its business reputation and a dilution of the

distinctive quality of its mark.

65. Battle Foam has suffered irreparable harm, for which it has no adequate remedy at

law, and will continue to suffer irreparable injury unless and until Defendants’ infringing acts are

enjoined.

PRAYER FOR RELIEF

WHEREFORE, Battle Foam respectfully requests this Honorable Court:

A. Preliminarily and permanently enjoining and restraining Defendants, Outrider

Hobbies and Bryan Wade, its directors, officers, agents, servants, employees, subsidiaries,

affiliates, and all persons in active concert or participation with, through, or under it, at first during

the pendency of this action and thereafter perpetually:

1. from the production, sale, marketing, or distribution of any products manufactured

11
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 12 of 13

using Battle Foam’s proprietary laser cutting foam process;

2. from the production, sale, marketing, or distribution of any products using the

mark FOAM CORPS;

3. from committing any acts of infringement and/or unfair competition and from

implying a false designation of origin or a false description or representation with

respect to BATTLE FOAM’s mark;

4. from committing any acts of unfair competition by passing off or inducing or

enabling others to sell or pass off goods and/or services that are not those of Battle

Foam;

5. from using in any manner any packaging, labels, signs, literature, display cards, or

other packaging, advertising, or promotional materials, or other materials related

to the manufacture and/or sale of the custom designed laser cut foam products

that bear the marks FOAM CORPS, and/or any other mark, word, design, or

name that is confusingly similar to BATTLE FOAM’s mark;

6. from making any statements on promotional materials or advertising for

Defendants’ goods and/or services that are false or misleading as to source or origin;

and

7. from seeking to register any mark confusingly similar to BATTLE FOAM’s

trademarks.

B. Requiring that Defendants deliver up to Battle Foam any and all containers, signs,

packaging materials, printing plates, and advertising or promotional materials, and any materials used

in the preparation thereof, which in any way unlawfully use or make reference to BATTLE FOAM’s

mark in connection with the manufacture and/or sale of custom designed laser cut foam products.

12
 Case 1:10-cv-00116-SM Document 1 Filed 03/23/10 Page 13 of 13

C. Requiring that Defendants, within thirty (30) days after service of notice of entry of

judgment or issuance of an injunction pursuant thereto, file with the Court and serve upon Battle

Foam’s counsel a written report under oath setting forth details of the manner in which Defendants

have complied with the Court’s order pursuant to paragraphs A and B above.

D. Requiring Defendants to account and pay over to Battle Foam all damages sustained

by Battle Foam, Defendants’ profits, Battle Foam’s attorney fees and costs, and ordering that the

amount of damages awarded to Battle Foam be increased three times the amount thereof.

E. Awarding Battle Foam such other relief as the Court may deem just and proper.

/s/ Scott Daniels______

Scott Daniels
N.H State Bar No.
Daniels Patent Law, PLLC
43 Centre Street
Concord, New Hampshire 03301
Telephone: (603)226-8610
Fax: (603)226-8611

13