Theragun v. Lifepro Fitness - Complaint

Case 2:20-cv-02442 Document 1 Filed 03/13/20 Page 1 of 25 Page ID #:1
1 GREGORY S. CORDREY (Bar No. 190144)

gcordrey@jmbm.com
2 ROD S. BERMAN (Bar No. 105444)
rberman@jmbm.com
3 JESSICA BROMALL SPARKMAN (Bar No. 235017)
jbromall@jmbm.com
4 REMI T. SALTER (Bar No. 316327)
rsalter@jmbm.com
5 JEFFER MANGELS BUTLER & MITCHELL LLP
1900 Avenue of the Stars, 7th Floor
6 Los Angeles, California 90067-4308
Telephone: (310) 203-8080
7 Facsimile: (310) 203-0567
8 Attorneys for Plaintiff Theragun, Inc.
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12 THERAGUN, INC, a Delaware Case No.:
corporation,
13 COMPLAINT FOR:
Plaintiff,
14 1.) FEDERAL TRADE DRESS
v. INFRINGEMENT;
15
LIFEPRO FITNESS, LLC, a New York 2.) COMMON LAW TRADE DRESS
16 limited liability company; and DOES 1 INFRINGEMENT;
through 10, inclusive,
17 3.) INFRINGEMENT OF U.S.
Defendants. PATENT NOS. D849,260, D850,639,
18 D869,387, AND D877,351; AND
19 4.) UNFAIR BUSINESS
PRACTICES, CAL. BUS. & PROF.
20 CODE § 17200 ET SEQ.
21 DEMAND FOR JURY TRIAL
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1 Case No.
COMPLAINT
1 Plaintiff Theragun, Inc. (“Theragun”) brings this action against defendants

2 Lifepro Fitness, LLC (“Lifepro”), and Does 1-10, inclusive (collectively
3 “Defendants”).
4 THE PARTIES
5 1. Theragun is, and at all times relevant hereto was, a corporation duly
6 organized and existing under the laws of the state of Delaware, with its principal place
7 of business at 9420 Wilshire Blvd., Fourth Floor, Beverly Hills, California 90212.
8 2. Theragun is informed and believes and thereon alleges that defendant
9 Lifepro, and at all times relevant hereto was, a limited liability company duly
10 organized and existing under the laws of the state of New York, with offices at 1961
11 Richmond Terrace, Staten Island, New York 10302.
12 3. Theragun is ignorant of the true names and capacities of Defendants sued
13 herein as Does 1 through 10, inclusive, and therefore sues these Defendants by such
14 fictitious names and capacities. Theragun will amend this Complaint to allege their
15 true names and capacities when ascertained, along with the appropriate charging
16 allegations.
17 4. Theragun is informed and believes and thereon alleges that Defendants
18 are manufacturing, using, selling, or offering for sale within the U.S., or importing
19 into the U.S., the infringing massage gun products described below.
20 5. Theragun is informed and believes and thereon alleges that each of the
21 Defendants conspired and acted in concert with one another to commit the wrongs
22 against Theragun alleged herein, and in doing so were at all relevant times the agents,
23 servants, employees, principals, joint venturers, alter egos, and/or partners of each
24 other. Theragun is further informed and believes and on that basis avers that, in doing
25 the things alleged in this Complaint, each of the Defendants was acting within the
26 scope of authority conferred upon that Defendant by the consent, approval, and/or
27 ratification of the other Defendants.
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1 Case No.
COMPLAINT
1 JURISDICTION AND VENUE

2 6. This is an action for (a) trade dress infringement under Section 43 of the
3 Lanham Act, 15 U.S.C. §1125; (b) trade dress infringement under the laws of the state
4 of California; (c) patent infringement under the patent laws of the United States, 35
5 U.S.C. § 271; and (d) unfair competition pursuant to California Business and
6 Professions Code Section 17200, et seq.
7 7. This Court has subject matter jurisdiction over the trade dress and patent
8 claims in this action pursuant to 28 U.S.C. §1338(a) and 15 U.S.C. §1121. This Court
9 has supplemental jurisdiction over the remaining state law claims under 28 U.S.C.
10 §1367 because the claims are so related to Theragun’s claims under federal law that
11 they derive from a common nucleus of operative fact and form part of the same case
12 or controversy.
13 8. This Court has personal jurisdiction over Defendants because each of
14 them has committed and continues to commit acts of infringement in violation of 15
15 U.S.C. §§ 1114 and 1125 and 35 U.S.C. § 271, and places infringing products into the
16 stream of commerce, with knowledge or understanding that such products are sold in
17 the State of California, including in this judicial district. The acts of Defendants cause
18 injury to Theragun within this judicial district.
19 9. Upon information and belief, Defendants derive substantial revenue
20 from the sale of infringing products within the State of California, including this
21 judicial district, expect their actions to have consequences within this district, and
22 derive substantial revenue from interstate and international commerce.
23 10. Upon information and belief, Defendants sell substantial amounts of
24 infringing products to consumers who reside within the State of California through its
25 internet-based ecommerce website and internet websites operated by others, such as
26 Amazon.com.
27 11. Venue is proper in this judicial district under 28 U.S.C. §1391(b) and (c)
28 because a substantial part of the events or omissions giving rise to the claims occurred
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COMPLAINT
1 in this judicial district where Defendants have committed and continue to commit
2 infringing acts, including, without limitation, using their infringing trade dress to
3 market and sell the infringing products to consumers located within this judicial
4 district. Further, on information and belief, an appreciable portion of Defendants’
5 customers reside in Los Angeles. In addition, venue is proper because Theragun's
6 principal place of business is in this judicial district and Theragun suffered harm in
7 this judicial district.
8 GENERAL ALLEGATIONS
9 12. Theragun is in the business of developing, manufacturing and selling
10 high-quality, innovative percussive therapy devices. Theragun invests considerable
11 time, effort and money in developing and protecting its intellectual property,
12 including the trade dress of its products.
13 13. Since at least as early as May 31, 2015, Theragun has used a distinctive
14 blue color in presenting its trademarks, in its marketing and advertising, and on its
15 massage gun products. Images of examples of this usage are shown below.
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COMPLAINT
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17 14. As a result of the use of its distinctive blue color, Theragun has
18 developed trade dress rights in the blue color as applied to its massage gun products
19 and packaging as shown in the images above (the “Trade Dress”). The Trade Dress
20 is not functional and is either inherently distinctive, or, through Theragun’s
21 continuous use and promotion, has acquired distinctiveness, and the Trade Dress is
22 uniquely associated with Theragun and its massage gun products. Theragun’s Trade
23 Dress is associated by the public exclusively with Theragun and its products and is
24 used by the public as an indicator of the origin and quality of Theragun’s massage
25 gun products.
26 15. As is apparent from the images of Defendants’ products set forth in
27 Paragraph 30, below, Defendants are using a virtually identical blue color on their
28 massage gun products. In fact, Defendants have applied the blue color to their
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COMPLAINT
1 products in virtually the same locations and positions as that blue color is applied to
2 the Theragun products. Defendants’ application of the same blue color to their
3 products in virtually the same location and the same positions as that blue color is
4 applied to the Theragun products is likely to cause confusion or mistake, or to deceive
5 members of the public into believing that Defendants’ massage gun products are
6 approved, sponsored, endorsed, or licensed by, or affiliated, connected or otherwise
7 associated with Theragun, which is not the case. Such confusion, mistake, or
8 deception will inevitably continue after the sale of the products, as consumers
9 continue to encounter Defendants’ infringing products at gyms, in therapists or
10 doctors’ offices, or in other post-sale contexts, and as a result of such post-sale
11 confusion the harm to Theragun’s reputation will continue and be amplified.
12 16. On May 21, 2019, the United States Patent and Trademark Office issued
13 United States Patent Number D849,260, entitled “Massage Element” (hereinafter “the
14 ‘260 Patent”). A true and correct copy of the ‘260 Patent is attached hereto as Exhibit
15 1.
16 17. Theragun is the owner of the ‘260 Patent. The ‘260 Patent is presumed
17 to be valid.
18 18. The ‘260 Patent pertains to a particular ornamental design for an
19 attachment for percussive massage devices. The attachment head disclosed and
20 claimed in the ‘260 Patent includes several ornamental features, including a circular
21 dome-shaped head that comes to a “flattened” point. The dome-shaped head is placed
22 atop a bottom piece that decreases in radius as it approaches the dome-shaped head.
23 The bottom piece has a circular rounded ridge extending beyond the circumference of
24 the dome-shaped head. The bottom piece nests under the dome-shaped head and,
25 because of its unique shape relative to the dome-shaped head, forms a crevice or slot
26 between the dome-shaped head and the bottom piece. These ornamental features,
27 among others, give the attachment its distinct patented design.
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COMPLAINT
1 19. On June 4, 2019, the United States Patent and Trademark Office issued
2 United States Patent Number D850,639, entitled “Massage Element” (hereinafter “the
3 ‘639 Patent”). A true and correct copy of the ‘639 Patent is attached hereto as Exhibit
4 2.
6 to be valid.
7 21. The ‘639 Patent pertains to a particular ornamental design for an
8 attachment head for percussive massage devices. The attachment head disclosed and
9 claimed in the ‘639 Patent includes several ornamental features, including a unique
10 rounded, dome-shaped head that has a smaller diameter than the base of the cone. The
11 circular rim of the base extends upwards toward the top of the cone, then cuts in at an
12 angle resulting in the circumference of the attachment narrowing towards the top.
13 These ornamental features, among others, give the attachment its distinct patented
14 design.
15 22. On December 10, 2019, the United States Patent and Trademark Office
16 issued United States Patent Number D869,387, entitled “Rechargeable Battery”
17 (hereinafter “the ‘387 Patent”). A true and correct copy of the ‘387 Patent is attached
18 hereto as Exhibit 3.
20 to be valid.
21 24. The ‘387 Patent pertains to a particular ornamental design for a
22 rechargeable battery for percussive massage devices. The rechargeable battery
23 disclosed and claimed in the ‘387 Patent includes several ornamental features. When
24 viewed from the top, the ‘387 Patent features a flat, triangular shape design with
25 rounded edges. When viewed from the side, the ‘387 Patent has a long rectangular
26 shape adorned with a triangular-shaped piece on the top that has three long, oval-
27 shaped cut-outs of varying sizes within the triangular-shaped piece. This triangular-
28 shaped piece has rounded corners, with one side of the triangle extending longer than
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COMPLAINT
1 the others. The sides of the triangular-shaped piece extends into the rim of the top
2 piece, which has squared edges. These ornamental features, among others, give the
3 attachment its distinct patented design.
4 25. On March 3, 2020, the United States Patent and Trademark Office issued
5 United States Patent Number D877,351, entitled “Therapeutic Device” (hereinafter
6 “the ‘351 Patent”). A true and correct copy of the ‘351 Patent is attached hereto as
7 Exhibit 4.
9 to be valid.
10 27. The ‘351 Patent pertains to a particular ornamental design for a
11 therapeutic percussive massage device. The therapeutic device disclosed and claimed
12 in the ‘351 Patent includes an elongated O-shaped design in which the center of the
13 O-shape is cut-out from the outside ring. Above the center cut-out are two concentric
14 circles. The top of the ‘351 Patent includes a small oval-shaped button. These
15 ornamental features, among others, give the attachment its distinct patented design.
16 28. Theragun’s patented and patent-pending devices are innovative and have
17 received industry praise and recognition, including the 2019 A’ Design Award in
18 Digital and Electronic Devices Design for its Theragun G3PRO design.
19 29. Theragun is informed and believes and based thereon alleges that
20 Defendants began competing with Theragun in the percussive massage device
21 industry by manufacturing and selling percussive massage apparatuses, batteries, and
22 devices equipped with nearly identical designs to those of Theragun’s patents.
23 Specifically, Defendants manufacture and sell: 1.) head attachments nearly identical
24 to the designs claimed in the ‘260 Patent and the ‘639 Patent (the “First Infringing
25 Attachment” and “Second Infringing Attachment”, respectively), 2.) batteries nearly
26 identical to the design claimed in the ‘387 Patent (the “Infringing Battery”), and 3.)
27 devices nearly identical to the design claimed in the ‘351 Patent (the “Infringing
28 Device”) (collectively, the “Infringing Products”).
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COMPLAINT
1 30. On or about January 16, 2020, Theragun first became aware of

2 Defendants’ Infringing Products through Defendants’ Amazon retail page. Since
3 then, Theragun has seen these same infringing products being promoted in a number
4 of locations, including on Defendants’ website at www.lifeprofitness.com (see images
5 below).
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23 31. The Infringing Products are integral to Defendants’ products, as shown
24 in the screengrabs above taken from the Defendants’ website. From this, it is apparent
25 that Defendants have been actively advertising the Infringing Products, touting the
26 products throughout a variety of markets and to numerous audiences. Theragun is
27 informed and believes that Defendants sell their Infringing Products in the same
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COMPLAINT
1 marketing channels as Theragun, including online through their respective websites,

2 on Amazon, and through social media advertising.
3 32. On January 16, 2020, Theragun submitted a complaint to Amazon
4 requesting removal of the Amazon retail page through which Defendants sell one of
5 the Infringing Products. Amazon eventually removed this retail page on February 11,
6 2020 on the grounds that Defendants were offering for sale and selling goods that
7 infringed one or more of Theragun’s Patents.
8 33. On February 20, 2020, counsel for defendant Lifepro reached out to
9 counsel for Theragun to discuss the Amazon complaint. Defendant Lifepro provided
10 minimal information to counsel for Theragun and refused to provide all of the
11 information requested by Theragun unless Theragun first agreed to retract the
12 Amazon complaint.
13 34. On March 2, 2020, Defendants, or someone acting on their behalf or at
14 their direction, “spoofed” the email address that Theragun’s counsel had used to
15 submit the complaint to Amazon, and used that “spoofed” email address to
16 impersonate Theragun’s counsel and send an email to Amazon that appeared to be
17 from Theragun’s counsel and that falsely stated that Theragun retracted its Complaint.
18 As a result of these false statements, Amazon reinstated the Amazon retail page
19 through which Defendants sell the Infringing Product. Theragun’s counsel informed
20 Amazon that the email retracting the complaint was “spoofed” and that Theragun did
21 not retract its complaint.
23 their direction, again used a “spoofed” email address to impersonate Theragun’s
24 counsel and send an email to Amazon that appeared to be from Theragun’s counsel
25 and that falsely stated that Theragun retracted its Complaint. As a result of these false
26 statements, Amazon again reinstated the Amazon retail page through which
27 Defendants sell the Infringing Product. Theragun’s counsel again informed Amazon
28 that the email retracting the complaint was “spoofed” and that Theragun had not
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COMPLAINT
1 retracted its complaint. As of filing, the retail page remains up but no product appears
2 to be available for purchase.
3 36. On March 5, 2020, Theragun submitted a complaint to Amazon
4 requesting removal of an Amazon retail page through which Defendants sell a second
5 Infringing Product. Following the submission of this second complaint, the images
6 on the Amazon retail page through which Defendants sell the second Infringing
7 Product were altered. On March 5, 2020, the image of the Infringing Product included
8 a battery with three lines. On March 6, 2020, the day after Theragun submitted its
9 second complaint to Amazon, that image was altered and the three lines on the battery
10 were longer visible. On information and belief, the Infringing Product continues to
11 bear the three lines on the battery but the image of the product appearing on Amazon
12 has been manipulated to remove those lines. Furthermore, the images on Lifepro
13 website (lifeprofitness.com), continue to show the battery with three lines.
15 their direction, again used a “spoofed” email address to impersonate Theragun’s
16 counsel and send an email to Amazon that appeared to be from Theragun’s counsel
17 that falsely stated that Theragun retracted its Complaint regarding the second Amazon
18 retail page. As a result of these false statements, Amazon reinstated the Amazon retail
19 page through which Defendants sell the second Infringing Product.
20 38. On March 8, 2020, counsel for Theragun informed Amazon that the
21 email retracting the complaint was “spoofed” and that Theragun did not retract its
22 complaint and requested that Amazon remove the retail page immediately. As of
23 filing, the retail page remains up, but no product appears to be available for purchase.
24 39. Notwithstanding Theragun’s demand and in conscious disregard of
25 Theragun’s intellectual property rights as set forth herein, Defendants have continued
26 to use the Infringing Products and Trade Dress in conjunction with their percussive
27 massage devices and in direct competition with Theragun.
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COMPLAINT
1 FIRST CAUSE OF ACTION

2 Federal Trade Dress Infringement
3 (15 U.S.C. § 1125(a))
4 40. Theragun realleges and incorporates by reference all paragraphs above
5 as if fully set forth herein.
6 41. Theragun uses its Trade Dress in commerce on and in connection with
7 its massage gun products, accessories therefor, and the advertising and promotion of
8 the same. Plaintiff’s Trade Dress, described above, is comprised of distinctive
9 features which are protected under Lanham Act § 43(a). Plaintiff’s Trade Dress is
10 either inherently distinctive or, as a result of its use, has acquired secondary meaning
11 whereby the relevant consuming public and the trade associate these features with a
12 single source.
13 42. As described above, Defendants have used in commerce a trade dress
14 that is confusingly similar to Theragun’s unique and protectable Trade Dress
15 (hereinafter the “Infringing Trade Dress”), on and in connection with their sale of
16 massage gun products and accessories therefor. The potential for confusion is
17 amplified by Defendants’ choice to use the Infringing Trade Dress in connection with
18 products that, in whole or in part, are copies or knock-offs of Theragun’s own
19 products.
20 43. Theragun is informed and believes, and on that basis alleges, that in
21 adopting the Infringing Trade Dress, Defendants intended to and did confuse, mislead,
22 and/or deceive the public into believing that Theragun authorized, sponsored,
23 approved, or licensed Defendants’ use of the Infringing Trade Dress, which is not the
24 case.
25 44. These impressions created by Defendants were and are false. In fact,
26 Theragun has not authorized, sponsored, licensed, or given permission to Defendants
27 to use Theragun’s protected Trade Dress, or any trade dress similar thereto, in any
28 manner whatsoever.
67770216v4 11
COMPLAINT
1 45. Theragun is informed and believes, and on that basis alleges, that
2 Defendants’ conduct as alleged herein was willful and undertaken with knowledge
3 that the Infringing Trade Dress as used by Defendants is confusingly similar to
4 Theragun Trade Dress and that Defendants’ use would confuse, mislead, and/or
5 deceive the public into believing that Theragun somehow authorized, sponsored,
6 approved, or licensed Defendants’ conduct.
7 46. As a direct and proximate result of Defendants’ actions as described
8 herein, Theragun has suffered and will continue to suffer irreparable damage to its
9 business, reputation and good will.
10 47. Theragun lacks an adequate remedy at law.
11 48. Pursuant to 15 U.S.C. § 1116(a), Theragun is entitled to an order
12 enjoining Defendants from using Theragun’s Trade Dress or any trade dress similar
13 thereto. Pursuant to 15 U.S.C. § 1117(a), Theragun is entitled to an order requiring
14 Defendants to account to Theragun for any and all profits derived by Defendants from
15 their actions, and to an order awarding all damages sustained by Theragun by reason
16 of the infringement caused by Defendants.
17 49. Theragun is informed and believes, and on that basis alleges, that
18 Defendants’ conduct alleged herein was intentional and in conscious disregard of
19 Theragun’s rights. Among other things, Defendants’ actions impersonating
20 Theragun’s counsel and utilizing altered photographs in an attempt to conceal and
21 continue their infringing conduct, is clear evidence of their intentional conduct.
22 Pursuant to 15 U.S.C. § 1117(a), Theragun is entitled to an award of treble damages
23 and/or enhanced profits against Defendants.
24 50. Defendants’ actions described above make this an exceptional case under
25 15 U.S.C. § 1117(a) and, therefore, Theragun is entitled to an award of its attorneys’
26 fees and costs.
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COMPLAINT
1 SECOND CAUSE OF ACTION

2 Common Law Trade Dress Infringement
5 52. Defendants’ acts constitute common law trade dress infringement and
6 unfair competition under state law.
7 53. Theragun has been damaged and will continue to be damaged by
8 Defendants’ infringing activities.
9 54. Theragun is entitled to an injunction prohibiting Defendants from
10 continuing the infringing practices described herein, and a recall order directed to the
11 infringing items in the marketplace.
12 55. Theragun is also entitled to profits and damages arising from
13 Defendants’ wrongful use of Plaintiff’s trade dress.
14 56. Theragun is informed and believes, on that basis alleges, that Defendants
15 conduct was willful, wanton, malicious, and in conscious disregard of Theragun’s
16 rights, thereby justifying an award of punitive and/or exemplary damages in an
17 amount according to proof at trial.
18 THIRD CAUSE OF ACTION
19 Patent Infringement of the ‘260 Patent
20 (35 U.S.C. §§ 101 et seq.)
23 58. At all times herein mentioned the ‘260 Patent was and is valid and fully
24 enforceable.
25 59. As shown below, a side by side comparison of Theragun’s ‘260 Patent
26 and Defendants’ First Infringing Attachment quickly reveals that the First Infringing
27 Attachment appears substantially the same as Theragun’s ‘260 Patent to an ordinary
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COMPLAINT
1 observer, the resemblance is such as to deceive such an observer, inducing him to

2 purchase one supposing it to be the other:
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12 60. Defendants have and continue to directly infringe the ‘260 Patent by
13 making, using, offering for sale, selling and importing the First Infringing Attachment
14 in conjunction with percussive massage devices competitive to Theragun.
15 61. Defendants’ infringement is based upon literal infringement or
16 infringement under the doctrine of equivalents, or both.
17 62. At no time has Theragun granted Defendants authorization, license, or
18 permission to utilize the design claimed in the ‘260 Patent.
19 63. Theragun has been damaged by Defendants’ acts of infringement of the
20 ‘260 Patent and Theragun will continue to be damaged by such infringement unless
21 enjoined by this Court. Theragun is entitled to recover damages adequate to
22 compensate for the infringement under 35 U.S.C. § 284.
23 64. Theragun is, and has been, irreparably harmed by Defendants’ on-going
24 infringement including the following harm which cannot be quantified or recouped
25 through monetary damages: (1) lost market share that will be difficult, if not
26 impossible, to recoup later as the Infringing Attachment becomes entrenched with
27 retail sellers and trainers who recommend them to their clients, (2) loss of first mover
28 advantage that Theragun enjoyed as the first company to offer its innovative
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COMPLAINT
1 percussive devices and patented attachments, (3) loss of Theragun’s investment in

2 building up the market for percussive devices and its patented attachments, (4)
3 negative effect on its reputation as innovator and pioneer, (5) the unquantifiable effect
4 on lost sales of related products, (6) price erosion due to Defendants’ Infringing
5 Attachment being sold at a price point lower than Theragun’s patented product, (7)
6 diversion of resources to defend against loss of market share caused by sales of the
7 Infringing Attachment, and (8) Defendants’ unauthorized sales that are enticing others
8 to offer for sale and sell infringing attachments that leads to additional irreparable
9 harm described above.
10 65. Defendants’ acts of infringement have been, and continue to be, willful
11 and deliberate and therefore warrant the award of attorneys’ fees pursuant to 35
12 U.S.C. § 285 and the enhancement of damages pursuant to 35 U.S.C. § 284.
13 FOURTH CAUSE OF ACTION
15 (35 U.S.C. §§ 101 et seq.)
19 enforceable.
21 and Defendants’ Second Infringing Attachment quickly reveals that the Second
22 Infringing Attachment appears substantially the same as Theragun’s ‘639 Patent to an
23 ordinary observer, the resemblance is such as to deceive such an observer, inducing
24 him to purchase one supposing it to be the other:
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COMPLAINT
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69. Defendants have and continue to directly infringe the ‘639 Patent by
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making, using, offering for sale, selling and importing the Second Infringing
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Attachment in conjunction with percussive massage devices competitive to Theragun.
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70. Defendants’ infringement is based upon literal infringement or
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infringement under the doctrine of equivalents, or both.
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71. At no time has Theragun granted Defendants authorization, license, or
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permission to utilize the design claimed in the ‘639 Patent.
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72. Theragun has been damaged by Defendants’ acts of infringement of the
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‘639 Patent and Theragun will continue to be damaged by such infringement unless
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enjoined by this Court. Theragun is entitled to recover damages adequate to
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compensate for the infringement under 35 U.S.C. § 284.
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73. Theragun is, and has been, irreparably harmed by Defendants’ on-going
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infringement including the following harm which cannot be quantified or recouped
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through monetary damages: (1) lost market share that will be difficult, if not
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impossible, to recoup later as the Second Infringing Attachment becomes entrenched
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with retail sellers and trainers who recommend them to their clients, (2) loss of first
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mover advantage that Theragun enjoyed as the first company to offer its innovative
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percussive devices and patented attachments, (3) loss of Theragun’s investment in
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building up the market for percussive devices and its patented attachments, (4)
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2 on lost sales of related products, (6) price erosion due to Defendants’ Second
3 Infringing Attachment being sold at a price point lower than Theragun’s patented
4 product, (7) diversion of resources to defend against loss of market share caused by
5 sales of the Second Infringing Attachment, and (8) Defendants’ unauthorized sales
6 that are enticing others to offer for sale and sell infringing attachments that leads to
7 additional irreparable harm described above.
11 FIFTH CAUSE OF ACTION
13 (35 U.S.C. §§ 101 et seq.)
17 enforceable.
19 and Defendants’ Infringing Battery quickly reveals that the Infringing Battery appears
20 substantially the same as Theragun’s ‘387 Patent to an ordinary observer, the
21 resemblance is such as to deceive such an observer, inducing him to purchase one
22 supposing it to be the other:
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COMPLAINT
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10 making, using, offering for sale, selling and importing the Infringing Battery in
11 conjunction with percussive massage devices competitive to Theragun.
23 impossible, to recoup later as the Infringing Battery becomes entrenched with retail
24 sellers and trainers who recommend them to their clients, (2) loss of first mover
26 percussive devices and patented attachments and batteries, (3) loss of Theragun’s
27 investment in building up the market for percussive devices and its patented
28 attachments and batteries, (4) negative effect on its reputation as innovator and
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COMPLAINT
1 pioneer, (5) the unquantifiable effect on lost sales of related products, (6) price erosion
2 due to Defendants’ Infringing Battery being sold at a price point lower than
3 Theragun’s patented product, (7) diversion of resources to defend against loss of
4 market share caused by sales of the Infringing Battery, and (8) Defendants’
5 unauthorized sales that are enticing others to offer for sale and sell infringing batteries
6 that leads to additional irreparable harm described above.
10 SIXTH CAUSE OF ACTION
12 (35 U.S.C. §§ 101 et seq.)
16 enforceable.
18 and Defendants’ Infringing Device quickly reveals that the Infringing Attachment
19 appears substantially the same as Theragun’s ‘351 Patent to an ordinary observer, the
20 resemblance is such as to deceive such an observer, inducing him to purchase one
21 supposing it to be the other:
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COMPLAINT
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10 making, using, offering for sale, selling and importing the Infringing Device as a
11 percussive massage device competitive to Theragun.
23 impossible, to recoup later as the Infringing Device becomes entrenched with retail
24 sellers and trainers who recommend them to their clients, (2) loss of first mover
26 percussive devices and patented attachments, (3) loss of Theragun’s investment in
27 building up the market for percussive devices and its patented attachments, (4)
67770216v4 20
COMPLAINT
1 on lost sales of related products, (6) price erosion due to Defendants’ Infringing
2 Device being sold at a price point lower than Theragun’s patented product, (7)
3 diversion of resources to defend against loss of market share caused by sales of the
4 Infringing Device, and (8) Defendants’ unauthorized sales that are enticing others to
5 offer for sale and sell infringing attachments that leads to additional irreparable harm
6 described above.
10 SEVENTH CAUSE OF ACTION
11 State Unfair Business Practices
12 (Cal. Bus. & Prof. Code § 17200)
15 94. Defendants’ acts of trade dress and patent infringement alleged herein
16 constitute unlawful, unfair and fraudulent business practices and misleading
17 advertising pursuant to Cal. Bus. & Prof. Code § 17200.
18 95. Theragun has been damaged and will continue to be damaged by
19 Defendants’ unlawful, unfair and fraudulent business practices and misleading
20 advertising, as described above.
21 96. Pursuant to Cal. Bus. & Prof. Code § 17200, Plaintiff is entitled to an
22 injunction prohibiting Defendants from continuing the practices described above, and
23 restitution of all amounts acquired by Defendants by means of such wrongful acts.
24 PRAYER FOR RELIEF
25 WHEREFORE, Theragun prays for judgment as follows:
26 A. For an order finding that Theragun’s Trade Dress is valid and
27 protectable;
28
67770216v4 21
COMPLAINT
1 B. For an order finding that all Defendants have infringed Theragun’s Trade
2 Dress;
3 C. For an order finding that Defendants infringement was willful;
4 D. For an order finding that the ‘260, ‘639, ‘387, and ‘351 Patents are valid
5 and enforceable;
6 E. For an order finding that Defendants have infringed the ‘260, ‘639, ‘387,
7 and ‘351 Patents directly, literally or by equivalents, in violation of 35 U.S.C. § 271;
8 F. For an order finding that Defendants’ infringement is willful;
9 G. For an order temporarily, preliminarily and permanently enjoining
10 Defendants, their officers, directors, agents, servants, affiliates, employees,
11 subsidiaries, divisions, branches, parents, attorneys, representatives, privies, and all
12 others acting in concert or participation with any of them, from infringing the ‘260,
13 ‘639, ‘387, and ‘351 Patents or Theragun’s Trade Dress directly, contributorily and/or
14 by inducement, or otherwise engaging in acts of unfair competition;
15 H. For a judgment directing that any products in the possession, custody or
16 control of Defendants which infringe the Theragun’s Patents and/or Trade Dress be
17 delivered up and destroyed within 30 days of entry of judgment;
18 I. For a judgment directing Defendants to recall all Infringing Products and
19 any other materials sold, distributed, advertised or marketed which infringe
20 Theragun’s Patents and/or Trade Dress;
21 J. For an order directing Defendants to file with the Court, and serve upon
22 Theragun’s counsel, within thirty (30) days after entry of the order of injunction, a
23 report setting forth the manner and form in which it has complied with the injunction;
24 K. For an order awarding Theragun damages adequate to compensate
25 Theragun for the infringement by Defendants, including disgorgement of profits or
26 gains of any kind made by Defendants from their infringing acts, lost profits and/or
27 reasonable royalty, in amounts to be fixed by the Court in accordance with proof,
28
67770216v4 22
COMPLAINT
1 including general, statutory, enhanced, exemplary, treble, and/or punitive damages,

2 as appropriate;
3 L. For an order awarding Theragun pre-judgment interest and post-
4 judgment interest at the maximum rate allowed by law;
5 M. For an order requiring an accounting of the damages to which Theragun
6 is found to be entitled;
7 N. For an order declaring this to be an exceptional case pursuant to 35
8 U.S.C. § 285 and 15 U.S.C. § 1117(a) and awarding Theragun its attorneys’ fees;
9 O. For an order awarding Theragun its costs of court; and
10 P. Granting Theragun such other and further relief as the Court may deem
11 just and proper.
12
13 DATED: March 13, 2020 GREGORY S. CORDREY
ROD S. BERMAN
14 JESSICA BROMALL SPARKMAN
REMI T. SALTER
16
17 By: /s/ Remi T. Salter
REMI T. SALTER
19
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67770216v4 23
COMPLAINT
1 DEMAND FOR JURY TRIAL

2 Plaintiff demands trial by jury on all issues so triable.
3
4 DATED: March 13, 2020 GREGORY S. CORDREY
ROD S. BERMAN
5 JESSICA BROMALL SPARKMAN
REMI T. SALTER
7
8 By: /s/ Remi T. Salter
REMI T. SALTER
10
11
12
13
14
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67770216v4 24
COMPLAINT
Case 2:20-cv-02442 Document 1-1 Filed 03/13/20 Page 1 of 12 Page ID #:26
EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
EXHIBIT 4

Theragun v. Lifepro Fitness - Complaint

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Case 2:20-cv-02442 Document 1 Filed 03/13/20 Page 1 of 25 Page ID #:1

1 GREGORY S. CORDREY (Bar No. 190144)

1 Plaintiff Theragun, Inc. (“Theragun”) brings this action against defendants

1 JURISDICTION AND VENUE

1 30. On or about January 16, 2020, Theragun first became aware of

1 marketing channels as Theragun, including online through their respective websites,

1 FIRST CAUSE OF ACTION

1 SECOND CAUSE OF ACTION

1 observer, the resemblance is such as to deceive such an observer, inducing him to

1 percussive devices and patented attachments, (3) loss of Theragun’s investment in

1 including general, statutory, enhanced, exemplary, treble, and/or punitive damages,

1 DEMAND FOR JURY TRIAL

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