Theragun v. Complete Recovery - Complaint

Case 2:20-cv-03821 Document 1 Filed 04/27/20 Page 1 of 46 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 MARK
v. INFRINGEMENT, 15 U.S.C. § 1114;
15
COMPLETE RECOVERY, an 2.) FEDERAL FALSE
16 unknown business association; DESIGNATION OF ORIGIN, 15
REVOLUTION HUSTLE LLC, a U.S.C. § 1125(a);
17 Delaware limited liability company;
DEZHOU CREATE FITNESS 3.) FEDERAL UNFAIR
18 EQUIPMENT CO., LTD., a Chinese COMPETITION, 15 U.S.C.
limited company; and DOES 1 through § 1125(a);
19 10, inclusive,
4.) COMMON LAW TRADE DRESS
20 Defendants. INFRINGEMENT;
21 5.) INFRINGEMENT OF U.S.
PATENT NOS. D877,351, D880,714,
22 D880,715, D880,716, D879,985,
D879,986, D869,387, D849,260,
23 D849,261, D861,182, D850,640, and
D859,680; AND
24
6.) UNFAIR BUSINESS
25 PRACTICES, CAL. BUS. & PROF.
CODE § 17200 ET SEQ.
26
DEMAND FOR JURY TRIAL
27
28
1 Case No.
COMPLAINT
1 Plaintiff Theragun, Inc. (“Theragun”) brings this action against defendants

2 Complete Recovery (“CR”), Revolution Hustle LLC (“RH”), Dezhou Create Fitness
3 Equipment Co., Ltd. (“Dezhou”), and Does 1-10, inclusive (collectively
4 “Defendants”).
5 1. The defendants have been and are now infringing Theragun’s rights in
6 its THERAGUN trademark, its unique trade dress, and its numerous patents by
7 manufacturing, using, selling, offering for sale, or importing various knock-offs and
8 other infringing devices, attachments, and batteries, therefor, and in connection with
9 the foregoing, using Theragun’s federally registered THERAGUN trademark and/or
10 its unique and protectable trade dress.
11 THE PARTIES
12 2. Theragun is, and at all times relevant hereto was, a corporation duly
13 organized and existing under the laws of the state of Delaware, with its principal place
14 of business at 9420 Wilshire Blvd., Fourth Floor, Beverly Hills, California 90212.
15 3. Theragun is informed and believes and, based thereon, alleges that
16 defendant CR is a business entity of unknown form, with its headquarters at 11601
17 Wilshire Boulevard, Suite 1800, Los Angeles California 90025.
18 4. Theragun is informed and believes and, based thereon, alleges that
19 defendant RH is a Delaware limited liability company with offices at 17412 Ventura
20 Boulevard, Suite 433, Encino, California 91316.
21 5. Theragun is informed and believes and thereon alleges that defendant
22 Dezhou is a Chinese limited company, with offices at No. 1368, Daxue East Road,
23 Economic Development Zone of Dezhou City, Shandong Province, China.
24 6. Theragun is ignorant of the true names and capacities of Defendants sued
25 herein as Does 1 through 10, inclusive, and therefore sues these Defendants by such
26 fictitious names and capacities. Theragun will amend this Complaint to allege their
27 true names and capacities when ascertained, along with the appropriate charging
28 allegations.
1 Case No.
COMPLAINT
1 7. Theragun is informed and believes and thereon alleges that Defendants

2 are manufacturing, using, selling, or offering for sale within the United States, or
3 importing into the United States the infringing massage gun products described
4 below.
5 8. Theragun is informed and believes and thereon alleges that each of the
6 Defendants conspired and acted in concert with one or more other Defendants to
7 commit the wrongs against Theragun alleged herein, and in doing so were at all
8 relevant times the agents, servants, employees, principals, joint venturers, alter egos,
9 and/or partners of each other. Theragun is further informed and believes and on that
10 basis alleges that, in doing the things alleged in this Complaint, each of the Defendants
11 was acting within the scope of authority conferred upon that Defendant by the
12 consent, approval, and/or ratification of one or more of the other Defendants.
13 JURISDICTION AND VENUE
14 9. This is an action for (a) trade dress infringement under Section 43 of the
15 Lanham Act, 15 U.S.C. §1125; (b) trade dress infringement under the laws of the state
16 of California; (c) patent infringement under the patent laws of the United States, 35
17 U.S.C. § 271; and (d) unfair competition pursuant to California Business and
18 Professions Code Section 17200, et seq.
19 10. This Court has subject matter jurisdiction over the trade dress and patent
20 claims in this action pursuant to 28 U.S.C. §1338(a) and 15 U.S.C. §1121. This Court
21 has supplemental jurisdiction over the remaining state law claims under 28 U.S.C.
22 §1367 because the claims are so related to Theragun’s claims under federal law that
23 they derive from a common nucleus of operative fact and form part of the same case
24 or controversy.
25 11. This Court has personal jurisdiction over Defendants and venue is proper
26 in this District pursuant to 28 U.S.C. § 1391(b) and § 1400(b). Theragun is informed
27 and believes and, based thereon, alleges that, defendants CR and RH have their offices
28 in this District, and that all Defendants distribute, promote, market, sell, offer for sale,
67894037v2 2
COMPLAINT
1 import, and/or advertise their infringing products in or to this District and/or to

2 businesses and individuals in this District. Theragun is further informed and believes
3 and, based thereon, alleges that Defendants derive substantial revenue from the
4 distribution, promotion, marketing, sale, offer for sale, or import of infringing
5 products in or to this District. Finally, Defendants infringing acts are causing harm to
6 Theragun, which resides in this District.
7 GENERAL ALLEGATIONS
8 Theragun’s Patent and Trade Dress
9 12. Theragun is in the business of developing, manufacturing, and selling
10 high-quality, innovative percussive therapy devices and attachments therefor.
11 Theragun invests considerable time, effort and money in developing and protecting
12 its intellectual property, including the unique and novel design and trade dress of its
13 products.
14 13. Theragun is the owner of United States Patent Number D877,351,
15 entitled “Therapeutic Device” (hereinafter the “ ‘351 Patent”), issued on March 3,
16 2020, a true and correct copy of which is attached hereto as Exhibit A. The ‘351 Patent
17 pertains to a particular ornamental design for a therapeutic percussive massage device,
18 including as depicted in Fig. 1 below. The ‘351 Patent is presumed to be valid and is
19 prima facie proof that the design shown in the ‘351 Patent is novel and non-obvious.
20
21
22
23 Fig. 1
25 entitled “Percussive Massage Device” (hereinafter the “ ‘714 Patent”), issued on April
26 7, 2020, a true and correct copy of which is attached hereto as Exhibit B. The ‘714
27 Patent pertains to a particular ornamental design for a therapeutic percussive massage
28 device, including as depicted in Fig. 2 below. The ‘714 Patent is presumed to be valid
67894037v2 3
COMPLAINT
1 and is prima facie proof that the design shown in the ‘714 Patent is novel and non-
2 obvious.
3
4
5
6 Fig. 2
9 7, 2020, a true and correct copy of which is attached hereto as Exhibit C. The ‘715
13 obvious.
14
15
16
17 Fig. 3
20 7, 2020, a true and correct copy of which is attached hereto as Exhibit D. The ‘716
24 obvious.
25
26
27
28 Fig. 4
67894037v2 4
COMPLAINT

2 entitled “Percussive Massage Device” (hereinafter the “ ‘985 Patent”), issued on
3 March 31, 2020, a true and correct copy of which is attached hereto as Exhibit E. The
4 ‘985 Patent pertains to a particular ornamental design for a therapeutic percussive
5 massage device, including as depicted in Fig. 5 below. The ‘985 Patent is presumed
6 to be valid and is prima facie proof that the design shown in the ‘985 Patent is novel
7 and non-obvious.
8
9
10
11 Fig. 5
13 entitled “Percussive Massage Device” (hereinafter the “ ‘986 Patent”), issued on
14 March 31, 2020, a true and correct copy of which is attached hereto as Exhibit F. The
15 ‘986 Patent pertains to a particular ornamental design for a therapeutic percussive
16 massage device, including as depicted in Fig. 6 below. The ‘986 Patent is presumed
17 to be valid and is prima facie proof that the design shown in the ‘986 Patent is novel
18 and non-obvious.
19
20
21
22 Fig. 6
24 entitled “Rechargeable Battery” (hereinafter the “ ‘387 Patent”), issued on December
25 10, 2019, a true and correct copy of which is attached hereto as Exhibit G. The ‘387
26 Patent pertains to a particular ornamental design for a rechargeable battery for
27 percussive massage devices, including as depicted in Fig. 7 below. The ‘387 Patent
28
67894037v2 5
COMPLAINT
1 is presumed to be valid and is prima facie proof that the design shown in the ‘387
2 Patent is novel and non-obvious.
3
4
5 Fig. 7
7 entitled “Massage Element” (hereinafter the “ ‘260 Patent”), issued on May 21, 2019,
8 a true and correct copy of which is attached hereto as Exhibit H. The ‘260 Patent
9 pertains to a particular ornamental design for an attachment for percussive massage
10 devices, including as depicted in Fig. 8 below. The ‘260 Patent is presumed to be valid
12 obvious.
13
14
15 Fig. 8
17 entitled “Massage Element” (hereinafter the “ ‘261 Patent”), issued on May 21, 2019,
18 a true and correct copy of which is attached hereto as Exhibit I. The ‘261 Patent
20 devices, including as depicted in Fig. 9 below. The ‘261 Patent is presumed to be valid
22 obvious.
23
24
25 Fig. 9
27 entitled “Massage Element” (hereinafter the “ ‘182 Patent”), issued on September 24,
28 2019, a true and correct copy of which is attached hereto as Exhibit J. The ‘182 Patent
67894037v2 6
COMPLAINT

2 devices, including as depicted in Fig. 10 below. The ‘182 Patent is presumed to be
3 valid and is prima facie proof that the design shown in the ‘182 Patent is novel and
4 non-obvious.
5
6
7 Fig. 10
9 entitled “Massage Element” (hereinafter the “ ‘640 Patent”), issued on June 4, 2019,
10 a true and correct copy of which is attached hereto as Exhibit K. The ‘640 Patent
14 non-obvious.
15
16
17 Fig. 11
19 entitled “Massage Element” (hereinafter the “ ‘680 Patent”), issued on September 10,
20 2019, a true and correct copy of which is attached hereto as Exhibit L. The ‘680 Patent
24 non-obvious.
25
26
27
28 Fig. 12
67894037v2 7
COMPLAINT
1 25. The ‘387 Patent, ‘714 Patent, ‘715 Patent, ‘716 Patent, ‘985 Patent, ‘986
2 Patent, ‘260 Patent, ‘351 Patent, ‘261 Patent, 182 Patent, the ‘640 Patent, and ‘680
3 Patent are referred to herein collectively as the “Patents” and individually as a
4 “Patent.” A number of the Patents issued to Theragun, LLC, which entity has been
5 converted to Theragun, Inc., plaintiff herein. Theragun is the current owner of each
6 of the Patents.
7 26. Theragun owns the federally registered trademark THERAGUN, which
8 trademark is the subject of U.S. Reg. No. 5,213,141, and which mark it has used the
9 since at least as early as May 31, 2015.
10 27. Additionally, since at least as early as May 31, 2015, Theragun has used
11 a distinctive blue color in presenting its trademarks, in its marketing and advertising,
12 and on its massage gun products and their packaging. Images of examples of this
13 usage are shown below in Fig. 13.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 Fig. 13
67894037v2 8
COMPLAINT
1 28. Plaintiff is a pioneer in the percussive massage therapy device market

2 and, by delivering premier-quality products under the THERAGUN mark for the past
3 five years, Plaintiff has established a reputation for providing outstanding massage
4 therapy products and customer service under the THERAGUN mark.
5 29. As a result of the use of its distinctive blue color, Theragun has
6 developed trade dress rights in the blue color as applied to its massage gun products
7 and packaging, including as shown in Fig. 13 above (the “Trade Dress”). The Trade
8 Dress is not functional and is either inherently distinctive, or, through Theragun’s
9 continuous use and promotion, has acquired distinctiveness.
10 30. Consumers recognize THERAGUN and the Trade Dress as indicators of
11 excellence and as uniquely identifying Theragun as the source of the products and
12 services associated in connection with which they are used.
13 Defendant’s Infringing Conduct
14 31. Defendants are marketing, promoting, advertising, using, selling,
15 offering to sell, and/or importing numerous infringing devices, as identified below
16 (collectively the “Infringing Devices” and individually, an “Infringing Device”).
17 32. Defendant CR develops, designs, markets, distributes, uses, sells, offers
18 to sell, and/or imports multiple percussive therapy devices. At least two of those
19 devices, the Recovery Pro (shown in Fig. 14) and the Recovery Volt (shown in Fig.
20 15), infringe the Trade Dress and one or more of the Patents.
21
22
23
24
25
26
27 Fig. 14 (the “Recovery Pro”) Fig. 15 (the “Recovery Volt”)
28
67894037v2 9
COMPLAINT
1 33. Defendant RH is identified in CR’s materials as the importer of at least

2 one of CR’s infringing devices, the Recovery Pro.
3 34. On its brand page on Alibaba (dzcreate.en.alibaba.com), Defendant
4 Dezhou states that it “is a professional manufacturer engaged in research,
5 development, production, sale and service of muscle massage products . . . .,” that its
6 “products are selling well in North America.” A number of its percussive therapy
7 devices or attachments therefor infringe the Trade Dress and/or one or more of the
8 Patents, including those set forth in Figs. 16-20 below.
9
10
11
12
13
14 Fig. 16 (the “CRG-02”)
15
16
17
18
19
Fig. 17 (the “CRG-03”, with connector and attachments)
20
21
22
23
24
25
26 Fig. 18 (the “CRG-05” with attachment and battery)
27
28
67894037v2 10
COMPLAINT
1
2
3
4
5
6
Fig. 19 (the “CRG-04” with attachment)
7
8
9
10
11
12
13
14 Fig. 20 (the “CRG-01” with battery)
35. Dezhou sells its infringing products under the brand name CRIFIT.
15
Theragun is informed and believes and, based thereon, alleges that Dezhou sells or
16
manufactures infringing products to or for distributors and resellers in the United
17
States, including, without limitation, the other Defendants herein, who in turn import,
18
sell, offer to sell, the infringing Dezhou products. In fact, Dezhou advertises that it
19
can place alternative brand names on its products and packaging and provide sample
20
products within three days.
21
36. Defendants’ infringing products are virtually identical to Theragun’s
22
patented products, as can be seen in the product images above. In addition, numerous
23
Defendants are using a virtually identical blue color on their massage gun products
24
and are using the same color in many of their packaging and marketing materials.
25
Indeed, these Defendants have applied the blue color to their products in virtually the
26
same locations and positions as that blue color is applied to the Theragun products.
27
28
67894037v2 11
COMPLAINT
1 37. Not only has Dezhou created virtual copies of Theragun’s patented
2 products, and not only has Dezhou applied the same blue color to these copies, but
3 Dezhou is also using Theragun’s federally registered trademark THERAGUN as part
4 of its product name in listings on Alibaba.com. As a result, when a search is conducted
5 on Alibaba.com for “Theragun”, the first result is one of Dezhou’s knock-offs, bearing
6 THERAGUN as part of its name.
7 38. Defendants’ application of the same blue color to their virtually identical
8 products in virtually the same location and the same positions as that blue color is
9 applied to the Theragun products is likely to cause confusion or mistake, or to deceive
10 members of the public into believing that Defendants’ massage gun products are
11 approved, sponsored, endorsed, or licensed by, or affiliated, connected or otherwise
12 associated with Theragun, which is not the case. Such confusion, mistake, or
13 deception will inevitably continue after the sale of the products, as consumers
14 continue to encounter Defendants’ infringing products at gyms, in therapists or
15 doctors’ offices, or in other post-sale contexts, and as a result of such post-sale
16 confusion the harm to Theragun’s reputation will continue and be amplified.
17 39. The potential for confusion is amplified and exacerbated by Dezhou’s
18 use of the THERAGUN mark in its product listings on alibaba.com, and Dezhou’s
19 use of the THERAGUN is likely to cause confusion or mistake, or to deceive members
20 of the public into believing that Defendants’ massage gun products are approved,
21 sponsored, endorsed, or licensed by, or affiliated, connected or otherwise associated
22 with Theragun, which is not the case.
23 FIRST CAUSE OF ACTION
24 Federal Trademark Infringement, 15 U.S.C. § 1114
25 (Against Dezhou)
26 40. Theragun realleges and incorporates by reference all foregoing
27 paragraphs as if fully set forth herein.
28
67894037v2 12
COMPLAINT
1 41. Theragun owns the federally registered trademark THERAGUN, U.S.

2 Reg. No. 5,213,141.
3 42. Dezhou, without Theragun’s permission or consent, has used and is
4 continuing to use, the THERAGUN mark in connection with the advertising,
5 promotion, sale, and offer for sale of percussive massage therapy products, including
6 products that are virtual copies of Theragun’s patented products.
7 43. Dezhou’s use of THERAGUN is likely to deceive or to cause confusion,
8 or reverse confusion, or to cause mistake among consumers as to source, origin,
9 sponsorship, affiliation, approval, and/or association.
10 44. Dezhou’s conduct described herein was knowing, willful, intentional,
11 deliberate, and in total disregard of Theragun’s rights. The knowing and intentional
12 nature of the acts set forth herein renders this an exceptional case under 15 U.S.C. §
13 1117(a).
14 45. As a direct and proximate cause of Dezhou’s unlawful, intentional and
15 willful conduct, Theragun has been and will continue to be irreparably harmed unless
16 Dezhou is temporarily, preliminarily, and permanently enjoined from such unlawful
17 conduct.
18 46. Theragun has no adequate remedy at law. Unless enjoined, Dezhou will
19 continue its unlawful, intentional, and willful conduct.
20 47. In light of the foregoing, Theragun is entitled to a permanent injunction
21 prohibiting Dezhou from using THERAGUN, or any name, service mark, or logo
22 confusingly similar to the federally registered THERAGUN mark, and to recover
23 from Dezhou all damages that Theragun has sustained and will sustain, and all gains,
24 profits and advantages obtained by Dezhou as a result of its infringing acts alleged
25 above in an amount not yet known, and the costs of this action pursuant to 15 U.S.C.
26 § 1117(a) or, at Theragun’s option, statutory damages pursuant to 15 U.S.C. §
27 1117(c), including up to $2,000,000 for the willful use of a counterfeit mark.
28
67894037v2 13
COMPLAINT
1 48. As this is an exceptional case given Dezhou’s willful acts, pursuant to

2 15 U.S.C. § 1117(a), Theragun is further entitled to three times the amount of the
3 above profits or damages, whichever is greater, and their attorneys’ fees.
4 SECOND CAUSE OF ACTION
5 False Designation of Origin, 15 U.S.C. § 1125(a)
6 (Against All Defendants)
9 50. Theragun uses its Trade Dress in commerce on and in connection with
10 its massage gun products, accessories therefor, and the advertising and promotion of
11 the same. Theragun’s Trade Dress, described above, is comprised of distinctive
12 features which are protected under Lanham Act § 43(a). Theragun’s Trade Dress is
13 either inherently distinctive or, as a result of its use, has acquired secondary meaning
14 whereby the relevant consuming public and the trade associate these features with a
15 single source.
16 51. As described above, Defendants have used in commerce trade dress that
17 is confusingly similar to Theragun’s unique and protectable Trade Dress (hereinafter
18 the “Infringing Trade Dress”), on and in connection with their sale of massage gun
19 products and accessories therefor. As described above, Dezhou has used in commerce
20 the THERAGUN trademark, on or in connection with their sale of massage gun
21 products. The potential for confusion is amplified by the use of the Infringing Trade
22 Dress in connection with products that, in whole or in part, are copies or knock-offs
23 of Theragun’s own products.
24 52. Defendants’ conduct alleged herein constitutes a false designation of
25 origin and/or a false or misleading description and/or representation of fact, which is
26 likely to deceive or to cause confusion or reverse confusion or mistake among
27 consumers as to the origin, sponsorship, or approval of the Defendants’ goods and
28
67894037v2 14
COMPLAINT
1 services and/or deceive or to cause confusion or mistake among consumers as to the

2 affiliation, connection, or association between Defendants and Theragun.
3 53. Defendants’ conduct described herein was knowing, willful, intentional,
4 deliberate, and in total disregard of Theragun’s rights. The knowing and intentional
5 nature of the acts set forth herein renders this an exceptional case under 15 U.S.C. §
6 1117(a).
7 54. As a direct and proximate cause of Defendants’ unlawful, intentional,
8 and willful conduct, Theragun has been and will continue to be irreparably harmed
9 unless Defendants are permanently enjoined from such unlawful conduct. Theragun
10 has no adequate remedy at law. Unless enjoined, Defendants will continue to mislead
11 and confuse consumers as to the origin, sponsorship, or approval of Defendants’
12 goods and services and/or deceive or cause confusion or mistake among consumers
13 as to the affiliation, connection, or association between Defendants and Theragun.
15 prohibiting Defendants from using the THERAGUN mark and the Infringing Trade
16 Dress, and any marks or trade dress confusingly similar to the THERAGUN mark or
17 the Trade Dress, and to recover from Defendants all damages that Theragun has
18 sustained and will sustain, and all gains, profits, and advantages obtained by
19 Defendants as a result of their infringing acts alleged above in an amount not yet
20 known, and the costs of this action pursuant to 15 U.S.C. § 1117(a).
21 56. Pursuant to 15 U.S.C. § 1118, Plaintiff is entitled to, and hereby seeks,
22 an order for the destruction of all materials bearing the THERAGUN mark or the
23 Infringing Trade Dress, or any other trade dress confusingly similar to Theragun’s
24 Trade Dress.
25 57. As this is an exceptional case, given Defendants’ willful acts, pursuant
26 to 15 U.S.C. § 1117(a), Theragun is further entitled to three times the amount of the
27 above profits or damages, whichever is greater, and their attorneys’ fees
28
67894037v2 15
COMPLAINT
1 THIRD CAUSE OF ACTION

2 Federal Unfair Competition, 15 U.S.C. § 1125(a)
6 59. Defendants have deliberately and willfully attempted to capitalize on
7 Theragun’s goodwill and reputation established in connection with the THERAGUN
8 mark and the Trade Dress by misleading, confusing, or deceiving consumers as to
9 source, source, origin, affiliation, approval, sponsorship, and/or association.
10 60. Defendants have engaged in, and continue to engage in, their unlawful,
11 intentional, and willful conduct without Theragun’s permission or consent.
12 61. As a direct and proximate cause of Defendants unlawful, intentional, and
13 willful conduct, Theragun has been and will continue to be irreparably harmed unless
14 Defendants are permanently enjoined from such unlawful conduct. Theragun has no
15 adequate remedy at law. Unless enjoined, Defendants will continue their unlawful,
16 intentional, and willful conduct.
18 prohibiting Defendants from using the THERAGUN mark and the Infringing Trade
19 Dress, and any marks or trade dress confusingly similar to the THERAGUN mark or
20 the Trade Dress, and to recover from Defendants all damages that Theragun has
21 sustained and will sustain, and all gains, profits, and advantages obtained by
22 Defendants as a result of their infringing acts alleged above in an amount not yet
23 known, and the costs of this action pursuant to 15 U.S.C. § 1117(a).
24 63. Pursuant to 15 U.S.C. § 1118, Theragun is entitled to, and hereby seeks,
25 an order for the destruction of all materials bearing the Infringing Trade Dress, or any
26 other trade dress confusingly similar to the Trade Dress.
27
28
67894037v2 16
COMPLAINT
1 64. As this is an exceptional case, given Defendants’ willful acts, pursuant

2 to 15 U.S.C. § 1117(a), Theragun is further entitled to three times the amount of the
3 above profits or damages, whichever is greater, and their attorneys’ fees.
4 FOURTH CAUSE OF ACTION
5 Common Law Trade Dress Infringement
9 66. Defendants’ acts constitute common law trade dress and trademark
10 infringement and unfair competition under state law.
11 67. Theragun has been damaged and will continue to be damaged by
12 Defendants’ infringing activities.
13 68. Theragun has no adequate remedy at law and is entitled to an injunction
14 prohibiting Defendants from continuing the infringing practices described herein, and
15 a recall order directed to the infringing items in the marketplace.
16 69. Theragun is also entitled to profits and damages arising from
17 Defendants’ wrongful use of Plaintiff’s trade dress.
18 70. Theragun is informed and believes, on that basis alleges, that Defendants
19 conduct was willful, wanton, malicious, and in conscious disregard of Theragun’s
20 rights, thereby justifying an award of punitive and/or exemplary damages in an
21 amount according to proof at trial.
22 FIFTH CAUSE OF ACTION
23 Patent Infringement, 35 U.S.C. §§ 101 et seq.
24 ‘351 Patent
28
67894037v2 17
COMPLAINT
1 72. At all times herein mentioned the ‘351 Patent was and is valid and fully
2 enforceable.
3 73. Defendants are offering percussive massage devices that infringe the
4 ‘351 Patent, including at least the Recovery Pro, Recovery Volt, CRG-02, and CRG-
5 03, as shown in Figs. 14-17, above. As shown below, a side by side comparison of
6 Theragun’s ‘351 Patent and Defendants’ Infringing Devices quickly reveals that the
7 Infringing Devices appear substantially the same as Theragun’s ‘351 Patent to an
8 ordinary observer; the resemblance is such as to deceive such an observer, inducing
9 him or her to purchase one supposing it to be the other:
10
11
12
13
14 ‘351 Patent
15
16
17
18
19
Recovery Pro Recovery Volt
20
21
22
23
24
25 CRG-03 CRG-02
26 74. By the acts complained of herein, Defendants have been and are
27 presently infringing the ‘351 Patent by actively and knowingly: (i) importing, making,
28 using, selling and/or offering to sell products incorporating the design of the ‘351
67894037v2 18
COMPLAINT
1 Patent, including the above-identified devices; (ii) inducing others to infringe the ‘351
2 Patent by inducing others to import, sell, offer for sale, and/or use products
3 incorporating the design of the ‘351 Patent, including the above-identified devices;
4 and/or (iii) contributing to the infringement of the ‘351 Patent.
5 75. Defendants’ infringe literally or under the doctrine of equivalents, or
6 both.
7 76. At no time has Theragun granted Defendants authorization, license, or
8 permission to utilize the design claimed in the ‘351 Patent.
9 77. Theragun has been damaged by Defendants’ acts of infringement of the
10 ‘351 Patent and Theragun will continue to be damaged by such infringement unless
11 enjoined by this Court. Theragun is entitled to recover damages adequate to
12 compensate for the infringement under 35 U.S.C. § 284.
13 78. Theragun is, and has been, irreparably harmed by Defendants’ on-going
14 infringement including the following harm which cannot be quantified or recouped
15 through monetary damages: (1) lost market share that will be difficult, if not
16 impossible, to recoup later as the Infringing Devices become entrenched with retail
17 sellers and trainers who recommend them to their clients, (2) loss of first mover
18 advantage that Theragun enjoyed as the first company to offer its innovative
19 percussive devices and patented attachments, (3) loss of Theragun’s investment in
20 developing the market for percussive devices and its patented attachments,
21 (4) negative effect on its reputation as innovator and pioneer, (5) the unquantifiable
22 effect on lost sales of related products, (6) price erosion due to Defendants’ Infringing
23 Devices being sold at a price point lower than Theragun’s patented products,
24 (7) diversion of resources to defend against loss of market share caused by sales of
25 the Infringing Devices, and (8) Defendants’ unauthorized sales that are enticing others
26 to offer for sale and sell infringing attachments that leads to additional irreparable
27 harm described above.
28
67894037v2 19
COMPLAINT
1 79. Defendants’ acts of infringement have been, and continue to be, willful
2 and deliberate and therefore warrant the award of attorneys’ fees pursuant to 35
3 U.S.C. § 285 and the award of enhanced damages pursuant to 35 U.S.C. § 284.
4 SIXTH CAUSE OF ACTION
6 ‘714 Patent
7 (Against Dezhou and Does 1 through 10, inclusive)
11 enforceable.
13 ‘714 Patent, including at least the CRG-05, as shown in Fig. 18, above. As shown
14 below, a side by side comparison of Theragun’s ‘714 Patent and Defendants’
15 Infringing Devices quickly reveals that the Infringing Devices appear substantially
16 the same as Theragun’s ‘714 Patent to an ordinary observer; the resemblance is such
17 as to deceive such an observer, inducing him or her to purchase one supposing it to
18 be the other:
19
20
21
22
23
24 ‘714 Patent CRG-05
25 83. By the acts complained of herein, Dezhou and Does 1 through 10,
26 inclusive (the “Dezhou Defendants”) have been and are presently infringing the ‘714
27 Patent by actively and knowingly: (i) importing, making, using, selling and/or
28 offering to sell products incorporating the design of the ‘714 Patent, including the
67894037v2 20
COMPLAINT
1 above-identified devices; (ii) inducing others to infringe the ‘714 Patent by inducing
2 others to import, sell, offer for sale, and/or use products incorporating the design of
3 the ‘714 Patent, including the above-identified devices; and/or (iii) contributing to the
4 infringement of the ‘714 Patent.
6 both.
28
67894037v2 21
COMPLAINT
4 SEVENTH CAUSE OF ACTION
6 ‘715 Patent
11 enforceable.
18 be the other:
19
20
21
22
23
‘715 Patent
24 CRG-05
25 92. By the acts complained of herein, the Dezhou Defendants have been and
26 are presently infringing the ‘715 Patent by actively and knowingly: (i) importing,
27 making, using, selling and/or offering to sell products incorporating the design of the
28 ‘715 Patent, including the above-identified devices; (ii) inducing others to infringe
67894037v2 22
COMPLAINT
1 the ‘715 Patent by inducing others to import, sell, offer for sale, and/or use products
5 both.
27
28
67894037v2 23
COMPLAINT
4 EIGHTH CAUSE OF ACTION
6 ‘716 Patent
11 enforceable.
18 be the other:
19
20
21
22
23
‘716 Patent
24 CRG-05
67894037v2 24
COMPLAINT
5 both.
27
28
67894037v2 25
COMPLAINT
4 NINTH CAUSE OF ACTION
6 ‘985 Patent
11 enforceable.
18 be the other:
19
20
21
22
23
67894037v2 26
COMPLAINT
5 both.
27
28
67894037v2 27
COMPLAINT
4 TENTH CAUSE OF ACTION
6 ‘986 Patent
11 enforceable.
18 be the other:
19
20
21
22
23
67894037v2 28
COMPLAINT
5 both.
27
28
67894037v2 29
COMPLAINT
4 CAUSE OF ACTION
6 ‘387 Patent
11 enforceable.
12 127. Defendants include an infringing battery with one or more of their
13 Infringing Devices, including, at least the CRG-05 and the CRG-01, as shown in Figs.
14 18 & 20, above. As shown below, a side by side comparison of Theragun’s ‘387
15 Patent and Defendants’ infringing battery quickly reveals that the infringing
16 attachment appears substantially the same as Theragun’s ‘387 Patent to an ordinary
17 observer; the resemblance is such as to deceive such an observer, inducing him or her
18 to purchase one supposing it to be the other:
19
20
21
22
23 ‘387 Patent
24 Infringing Battery
28 ‘387 Patent, including the above-identified battery; (ii) inducing others to infringe the
67894037v2 30
COMPLAINT
1 ‘387 Patent by inducing others to import, sell, offer for sale, and/or use products
2 incorporating the design of the ‘387 Patent, including the above-identified battery;
5 both.
27
28
67894037v2 31
COMPLAINT
4 TWELFTH CAUSE OF ACTION
6 ‘260 Patent
11 enforceable.
12 136. Defendants include an infringing attachment with one or more of their
13 Infringing Devices, including, at least the CRG-05 and the CRG-04, as shown in Figs.
14 18 & 19, above. As shown below, a side by side comparison of Theragun’s ‘260
15 Patent and Defendants’ infringing attachment quickly reveals that the infringing
16 attachment appears substantially the same as Theragun’s ‘260 Patent to an ordinary
17 observer; the resemblance is such as to deceive such an observer, inducing him or her
18 to purchase one supposing it to be the other:
19
20
21
22
23 ‘260 Patent
Infringing Attachment
24
137. By the acts complained of herein, the Dezhou Defendants have been and
25
are presently infringing the ‘260 Patent by actively and knowingly: (i) importing,
26
making, using, selling and/or offering to sell products incorporating the design of the
27
‘260 Patent, including the above-identified attachment; (ii) inducing others to infringe
28
67894037v2 32
COMPLAINT
2 incorporating the design of the ‘260 Patent, including the above-identified
3 attachment; and/or (iii) contributing to the infringement of the ‘260 Patent.
5 both.
27
28
67894037v2 33
COMPLAINT
4 THIRTEENTH CAUSE OF ACTION
6 ‘261 Patent
11 enforceable.
13 Infringing Devices, including, at least the CRG-03, as shown in Fig. 17, above. As
14 shown below, a side by side comparison of Theragun’s ‘261 Patent and Defendants’
15 infringing attachment quickly reveals that the infringing attachment appears
16 substantially the same as Theragun’s ‘261 Patent to an ordinary observer; the
17 resemblance is such as to deceive such an observer, inducing him or her to purchase
18 one supposing it to be the other:
19
20
21
22
23 ‘261 Patent Infringing Attachment
27 ‘261 Patent, including the above-identified attachment; (ii) inducing others to infringe
67894037v2 34
COMPLAINT

4 both.
67894037v2 35
COMPLAINT
1 FOURTEENTH CAUSE OF ACTION

3 ‘182 Patent
8 enforceable.
16
17
18
19
20 ‘182 Patent Infringing Attachment
24 ‘182 Patent, including the above-identified attachment; (ii) inducing others to infringe
28
67894037v2 36
COMPLAINT

2 both.
27
28
67894037v2 37
COMPLAINT
1 FIFTEENTH CAUSE OF ACTION

3 ‘640 Patent
8 enforceable.
16
17
18
19
20 ‘640 Patent
21
22
23
24
25
the ‘640 Patent by inducing others to import, sell, offer for sale, and/or use products
26
incorporating the design of the ‘640 Patent, including the above-identified
27
attachment; and/or (iii) contributing to the infringement of the ‘640 Patent.
28
67894037v2 38
COMPLAINT

2 both.
27
28
67894037v2 39
COMPLAINT
1 SIXTEENTH CAUSE OF ACTION

3 ‘680 Patent
8 enforceable.
16
17
18
19
20 ‘680 Patent
21
22
23
24
25
the ‘680 Patent by inducing others to import, sell, offer for sale, and/or use products
26
incorporating the design of the ‘680 Patent, including the above-identified
27
attachment; and/or (iii) contributing to the infringement of the ‘680 Patent.
28
67894037v2 40
COMPLAINT

2 both.
27
28
67894037v2 41
COMPLAINT
1 SEVENTEENTH CAUSE OF ACTION

2 State Unfair Business Practices, Cal. Bus. & Prof. Code § 17200
6 180. Defendants’ acts of trademark, trade dress, and patent infringement and
7 false designation of origin and unfair competition alleged herein constitute unlawful,
8 unfair and fraudulent business practices and misleading advertising pursuant to Cal.
9 Bus. & Prof. Code § 17200.
10 181. Theragun has been damaged and will continue to be damaged by
11 Defendants’ unlawful, unfair and fraudulent business practices and misleading
12 advertising, as described above.
13 182. Pursuant to Cal. Bus. & Prof. Code § 17200, Plaintiff is entitled to an
14 injunction prohibiting Defendants from continuing the practices described above, and
15 restitution of all amounts acquired by Defendants by means of such wrongful acts.
16 PRAYER FOR RELIEF
17 WHEREFORE, Theragun prays for judgment as follows:
18 A. For an order that, by the acts complained of herein, Defendants have
19 infringed Theragun’s trademark rights, in violation of 15 U.S.C. § 1114;
20 B. For an order finding that Theragun’s Trade Dress is valid and protectable
21 and that, by the acts complained of herein, Defendants have infringed Theragun’s
22 rights in its Trade Dress;
23 C. For an order temporarily, preliminarily and permanently enjoining
24 Defendants, and all of their officers, directors, agents, servants, affiliates, employees,
25 subsidiaries, divisions, branches, parents, attorneys, representatives, privies, and all
26 others acting in concert or participation with any of them, from using the
27 THERAGUN mark or the Trade Dress, or any other mark or trade dress confusingly
28
67894037v2 42
COMPLAINT
1 similar thereto, including the Infringing Trade Dress, or engaging in further acts of
2 unfair competition or trademark or trade dress infringement;
3 D. For an order finding that the Patents, and each of them, are valid and
4 enforceable;
5 E. For an order finding that Defendants have infringed the Patents directly,
6 contributorily, and/or by inducement, literally or by equivalents, in violation of 35
7 U.S.C. § 271;
8 F. For an order temporarily, preliminarily and permanently enjoining
9 Defendants, their officers, directors, agents, servants, affiliates, employees,
10 subsidiaries, divisions, branches, parents, attorneys, representatives, privies, and all
11 others acting in concert or participation with any of them, from infringing the Patents
12 directly, contributorily and/or by inducement, or otherwise engaging in acts of unfair
13 competition;
14 G. For a judgment directing that any products in the possession, custody or
15 control of Defendants which infringe the Patents, the THERAGUN mark, and/or the
16 Trade Dress be delivered up and destroyed within 30 days of entry of judgment;
17 H. For a judgment directing Defendants to recall all such infringing
18 products and any other materials sold, distributed, advertised or marketed which
19 infringe the Patents, the THERAGUN mark, and/or the Trade Dress;
20 I. For an order directing Defendants to file with the Court, and serve upon
21 Theragun’s counsel, within thirty (30) days after entry of the order of injunction, a
22 report setting forth the manner and form in which each of them has complied with the
23 injunction;
24 J. For an order that, by the acts complained of herein, Defendants have
25 infringed Theragun’s common law trademark and trade dress rights and/or engaged
26 in acts of common law unfair competition against Theragun;
27 K. For an order finding that Defendants’ conduct alleged herein was willful
28 and intentional and in conscious disregard of Theragun’s rights;
67894037v2 43
COMPLAINT
1 L. For compensatory damages in an amount to be proven at trial, including

2 disgorgement of profits or gains of any kind made by Defendants from their infringing
3 acts, lost profits and/or reasonable royalty, in amounts to be fixed by the Court in
4 accordance with proof, including general, statutory, enhanced, exemplary, treble,
5 and/or punitive damages, as appropriate;
6 M. For treble damages pursuant to 15 U.S.C. § 1117;
7 N. For an accounting and restitution and disgorgement of all payments,
8 profits, and revenues Defendants obtained as a result of their wrongful conduct, in an
9 amount to be proven at trial, including pursuant to 15 U.S.C. § 1117;
10 O. For statutory damages in the amount of at least $2,000,000 for the willful
11 use of a counterfeit mark;
12 P. For an order finding that this is an exceptional case, and awarding
13 Plaintiff’s reasonable attorney’s fees according to proof;
14 Q. For an order awarding Theragun its costs of court; and
15 R. For such other and further relief as the Court may deem just and proper.
16 DATED: April 27, 2020 GREGORY S. CORDREY
ROD S. BERMAN
17 JESSICA BROMALL SPARKMAN
REMI T. SALTER
19
20 By: /s/ Remi T. Salter
REMI T. SALTER
22
23
24
25
26
27
28
67894037v2 44
COMPLAINT
1 DEMAND FOR JURY TRIAL

2 Plaintiff demands trial by jury on all issues so triable.
3
4 DATED: April 27, 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
15
16
17
18
19
20
21
22
23
24
25
26
27
28
67894037v2 45
COMPLAINT
Case 2:20-cv-03821 Document 1-1 Filed 04/27/20 Page 1 of 9 Page ID #:47
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
EXHIBIT G
EXHIBIT H
EXHIBIT I
USOOD8492615
(12 ) United States Design Patent ( 10) Patent No.: US D849 ,261 S
Wersland et al. (45) Date of Patent: * * May 21, 2019
(54) MASSAGE ELEMENT D347 ,282 S *
D356 ,035 S *
5/ 1994 Yoo ............................. 124 /200
3 / 1995 Kim ............. .. D9 /454
(71) Applicant: THERAGUN , LLC , Beverly Hills, CA 5 ,470, 303 A * 11/ 1995 Leonard ........... ...... A61H 19 / 34
600/ 38
(US ) D417 ,008 S * 11/ 1999 Chien ......... ... D24 /211
7, 306 ,570 B1 * 12 /2007 Julian ............... .... A61H 7 /007
(72 ) Inventors : Jason Wersland ,Manhattan Beach , CA 601/ 134
(US) ; Michael Waldron , Dunnington D639 ,430 S * 6 / 2011 Yoo .. D24 / 146
(GB); Geert Ensing, Shanghai (CN ) D639 ,431 S * 6 / 2011 Yoo D24 / 146
(Continued )
(73) Assignee: THERAGUN , LLC , Beverly Hills, CA
(US ) OTHER PUBLICATIONS
(* * ) Term : 15 Years Theragun , “ Cone AmpBITs ” , Feb . 2 , 2018 . https ://theragun .com
collections/the - g2pro -accessories/ products/the -cone -ampbit-3 -pack
(21) Appl. No.: 29/637,060 for-g2pro . Shown on p . 1. ( Year: 2018 ). *
( 22 ) Filed : Feb . 13 , 2018 Primary Examiner — Cynthia Ramirez
Assistant Examiner — Michael A Maharajh
Related U .S. Application Data (74 ) Attorney, Agent, or Firm — Jeffer Mangels Butler &
(63) Continuation - in -part of application No. 15 /647 ,050 , Mitchell LLP; Brennan C . Swain , Esq .
filed on Jul. 11, 2017 . CLAIM
(51) LOC (11) CI. 28 -03 (57)
(52 ) U . S . CI. The ornamental design for a massage element,as shown and
USPC . ... ... ... .. . ............... D24 /211 described .
(58) Field of Classification Search DESCRIPTION
USPC ..... 52 / 574 ; 273/ 153 P, 153 R , 153 S , 157 R ,
273 / 160 ; 434 /211 , 259 ; 600 /38 ; 601 /15 , FIG . 1 is a perspective view of the present invention ;
601/ 18 , 19 , 27 , 28 , 29 , 30 , 31 , 32, 46 , 47, FIG . 2 is a front elevational view of the present invention
601/48 , 52, 72 , 99, 112 , 113 , 118 , 135 , shown in FIG . 1 , the rear, right and left side elevational
601/137 , DIG . 12 , DIG . 14 , DIG . 15 , views being mirror images thereof;
601 /DIG . 16 , DIG . 17 ; D21/ 505 ; FIG . 3 is a top plan view of the present invention shown in
D24 /200 , 211 , 212 , 213 , 214 , 215 ; FIG . 1 ;
D9/434 , 443 , 454 FIG . 4 is a bottom plan view of the present invention shown
CPC A61H 15 /00 ; A61H 2015 /0014 in FIG . 1 ; and ,
See application file for complete search history. FIG . 5 is a front elevational view of the present invention
(56 ) shown in FIG . 2 with a portion shown in cross- section .
References Cited The broken lines in the figures are for the purpose of
U .S . PATENT DOCUMENTS illustrating portions of the massage element that form no
part of the claimed design .
D192,758 S * 5 / 1962 Rijnovan ....................... D9/443
D197 , 192 S * 12/ 1963 Lorenzen ...................... D9 /443 1 Claim , 5 Drawing Sheets
-
-
-
US D849 ,261 S
Page 2
(56 ) References Cited

U . S . PATENT DOCUMENTS
8 ,105 ,253 B2 * 1/2012 Chen ...................... A61H 77004
601/ 112
8 ,518 ,001 B2 * 8/ 2013 Hasenoehrl W . .. A4 A45D 34 /04
601/ 112
8 ,864 ,690 B2 * 10 /2014 Fuster ................. A61H 7 /005
601/ 134
* cited by examiner
U . S . Patent May 21, 2019 Sheet 1 of 5 US D849,261 S
FIG . 1
RRRRR .
FIG . 2
atent May 21 , 2019 Sheet 3 of 5 US D849,261 S
-
-
-
E
-
-
-
-
FIG . 3
-
-
---
-
-
.
.
.her
*
**
**
--
.
.
FIG . 4
EEEEEEEEEEEEEEEEE
kiniiiiiii
- -- -- -- - - - - -- - - -- - - - - -- -- - - .
-
.
FIG . 5
EXHIBIT J
USOOD8611825
(12 ) United States Design Patent ( 10) Patent No.:

Wersland et al. (10,Patent No.: USUS D861
(45) Date of Patent:D861.1,829
, 182 S
* * Sep . 24 , 2019
(54) MASSAGE ELEMENT (56 ) References Cited
(71) Applicant: THERAGUN , LLC , Santa Monica, CA U . S . PATENT DOCUMENTS
(US ) D192,758 S * 5 /1962 Rijnovan D9 /443
(72 ) Inventors : Jason Wersland ,Manhattan Beach , CA D197, 192 S * 12/ 1963 Lorenzen D9/443
4 ,628,915 A * 12 /1986 Chaney .. ..... A61F 5 /41
(US); Michael Waldron , Dunnington 600 / 41
(GB); Geert Ensing, Shanghai (CN ) D347, 282 S * 5 / 1994 Yoo ................ ... D24 / 200
D356 , 035 S * 3 / 1995 Kim ......... .... . .. ... .. 09 / 454
(73) Assignee: THERAGUN , LLC , Santa Monica, CA 5 ,470 ,303 A * 11/ 1995 Leonard ................. A61H 19 /34
600 / 38
(US ) D417 ,008 S * 11/ 1999 Chien ......... ..... ... D24 /211
(* * ) Term : 15 Years (Continued )
(21) Appl. No.: 29/690,359 OTHER PUBLICATIONS
(22) Filed : May 7 , 2019 Amazon , “ TheraGun G2PRO Professional Massager” , Nov. 18 ,
2017 . https ://www .amazon . com / TheraGun -G2PRO - Professional
Related U .S . Application Data Massager/dp /B07578H2GX / ref = sr_ 1 _ 8 ?keywords = TheraGun +
G2PRO + Professional+Massager & qid = 1560873514 & s= gateway & sr =
(63 ) Continuation of application No. 29/637 ,060 , filed on 8 -8 . Shown on p . 1. ( Year: 2017 ).*
Feb . 13 , 2018, now Pat. No. Des . 849 ,261, which is
a continuation - in -part of application No . 15 /647 ,050, Primary Examiner — Cynthia Ramirez
filed on Jul. 11 , 2017. Assistant Examiner - Michael A Maharajh
(51) LOC ( 12) CI. .... .............. 28 -03 (74 ) Attorney, Agent, or Firm — Jeffer Mangels Butler &
(52 ) U . S . CI. Mitchell LLP ; Brennan C . Swain , Esq .
USPC . . .. . .. .. . .. . . ... ... . ... 124 /211
(58 ) Field of Classification Search (57) CLAIM
USPC ..... 52/ 574; 273/ 153 P , 153 R , 153 S , 157 R , The ornamentaldesign for a massage element, as shown and
273/ 160 ; 434 /211, 259; 600 /38 ; 601/ 15 , described .
601/ 18 , 19 , 27 , 28 , 29 , 30 , 31 , 32 , 46 , 47 ,
601/48 , 52, 72 , 99 , 112, 113 , 118 , 135 , DESCRIPTION
601/ 137 , DIG . 12 , DIG . 14 , DIG . 15 ,
601/DIG . 16 , DIG . 17 ; D21/ 505 ; FIG . 1 is a perspective view of a massage element showing
D24 /200 , 211 , 212 , 213 , 214 , 215 ; our new design ;
D9/434 , 443, 454; D8/378; D11/ 181; FIG . 2 is a front elevational view of the present invention
D26 / 113 , 154 shown in FIG . 1 , the rear , right and left side elevational
CPC ............ A61H 15 /0085; A61H 23 / 0263 ; A61H views being mirror images thereof;
15 / 00 ; A61H 39 /04 ; A61H 15 /0092 ; FIG . 3 is a top plan view of the present invention shown in
A61H 7 /001; A61H 7 /003 ; A61H 23 /006 ; FIG . 1; and ,
A61H 19 /34; A61H 7 /007 ; A61H 77004 ; FIG . 4 is a bottom plan view of the present invention shown
A61H 77005 ; F16G 13 /16 ; A63B 19 /00 ; in FIG . 1 .
A47C 16 / 025 ; A61F 5 /41; F16B 7 /042
See application file for complete search history . 1 Claim , 4 Drawing Sheets
!
TI
Hi
-
US D861 ,182 S
Page 2

7 ,306 ,570 B1 * 12 /2007 Julian A61H 7 /007
601/ 134
D639,430 S * 6 /2011 Yoo D24 / 146
D639,431 S * 6 /2011 Yoo . ... .. ..... . D24 / 146
8 , 105, 253 B2 * 1/ 2012 Chen . .. A61H 7 /004
601/ 112
8 ,518 ,001 B2 * 8/2013 Hasenoehrl ............ A45D 34 /04
601/ 112
8 ,864 ,690 B2 * 10 /2014 Fuster .................... A61H 77005
601/ 103
D728, 382 S * 5 / 2015 Goswell . D9 /504
D849 ,261 S * 5 /2019 Wersland .. D24 /211
2019 /0015294 A1 * 1/ 2019 Nazarian A61H 23 /006
2019 /0017528 Al * 1/2019 Wersland .. . ....... F16B 7 /042
* cited by examiner
U . S . Patent Sep. 24 , 2019 Sheet 1 of 4 US D861, 182 s
FIG . 1
U . S . Patent Sep. 24 , 2019 Sheet 2 of 4 US D861, 182 s
-
--
FIG . 2
www .- -
U . S . Patent Sep. 24 , 2019 Sheet 3 of 4 US D861, 182 S
!! ! ill
i - i- i - i- i - i- i
ho
FIG . 3
U . S . Patent S ep. 24 , 2019 Sheet 4 of 4 US D861, 182 S
-
-
-
-
--------
--
-----
-------
FIG . 4
EXHIBIT K
USOOD850640S
(12 ) United States Design Patent ( 10) Patent No.: US D850 ,640 S
Wersland et al. (45) Date of Patent: * * Jun . 4 , 2019
(54) MASSAGE ELEMENT D376 ,015 S * 11/ 1996 Newberry .................... D24 /211
5 ,577, 996 A * 11/ 1996 Gardner ............. A61H 15 /0092
(71) Applicant: THERAGUN , LLC , Beverly Hills, CA D387, 871 S * 12 /1997 Childs ....
601/ 118
D24 /211
(US ) D389,409 S * 1/1998 Tucker .. .. ..
. ............ D9/454
5,765,921 A * 6 / 1998 Chuang ............... A47C 16 /025
(72 ) Inventors : Jason Wersland ,Manhattan Beach , CA 601/ 118
(US) ; Michael Waldron , Dunnington D396 ,110 S * 7 / 1998 Kang D24 /211
(GB); Geert Ensing, Shanghai (CN ) D403 ,076 S * 12 / 1998 York
D403 ,428 S * 12 /1998 Russo
D24 /214
.... ..... . D24 /200
(73) Assignee: THERAGUN , LLC , Beverly Hills, CA (Continued )
(US )
OTHER PUBLICATIONS
(* * ) Term : 15 Years
Theragun, “ Standard Ball AmpBITs” , Feb . 1, 2018. https://theragun.
(21) Appl.No.: 29/637,057 com /collections/the - g2pro -accessories/products/ampbit -attachment
the -standard -ball -3 -pack . Shown on p . 1 . (Year: 2018 ). *
( 22 ) Filed : Feb . 13 , 2018
Primary Examiner - Cynthia Ramirez
Related U .S . Application Data Assistant Examiner — Michael A Maharajh
(63 ) Continuation -in -part of application No. 15 /647,050 , ( 74 ) Attorney, Agent, or Firm — Jeffer Mangels Butler &
filed on Jul. 11 , 2017 . Mitchell LLP ; Brennan C . Swain
(51) LOC (11) CI. .... ..... 28 -03 (57) CLAIM
(52 ) U . S . CI. The ornamental design for a massage element, as shown and
USPC . ... ... ... ... .......... D24 /211 described .
Field of Classification Search
USPC ..... 52/ 574 ; 273/ 153 P . 153 R , 153 S , 157 R , DESCRIPTION
273 / 160 ; 434 / 211 , 259 ; 600 / 38 ; 601/ 15 ,
601 / 18 , 19 , 27 , 28 , 29 , 30 , 31 , 32 , 46 , 47 , FIG . 1 is a perspective view of the present invention ;
601/48, 52 , 72, 99 , 112 , 113, 118 , 135 , FIG . 2 is a front elevational view of the present invention
601 / 137, DIG . 12 , DIG . 14 , DIG . 15 , shown in FIG . 1 , the rear , right and left side elevational
601/DIG . 16 , DIG . 17 ; D21/ 505 ; views being mirror images thereof;
D24 /200 , 211 , 212 , 213 , 214 , 215 ; FIG . 3 is a top plan view of the present invention shown in
D9/ 434, 443 , 454 FIG . 1 ;
CPC ....... ...... A61H 15 /00 ; A61H 2015 /0014 FIG . 4 is a bottom plan view of the present invention shown
See application file for complete search history . in FIG . 1 ; and ,
FIG . 5 is a front elevational view of the present invention
(56 ) References Cited shown in FIG . 2 with a portion shown in cross - section .
The broken lines in the figures are for the purpose of
U .S. PATENT DOCUMENTS illustrating portions of the massage element that form no
2 ,854 ,971 A * 10 /1958 Williams .............. A61H 15 /00 part of the claimed design .
606 / 238
D311,790 S * 10 / 1990 Krief .......... D10 /68 1 Claim , 5 Drawing Sheets
-
"
- - - -- -- -. .
--- - - -- - - --
US D850 ,640 S
Page 2

5 ,843,005 A * 12 /1998 Chubinsky ............. A61H 7/003
601/ 15
6 ,109 ,999 A * 8 /2000 Kuo ... ... . . .. A63B 19 /00
446 /236
D491, 271 S * 6 /2004 Siegfried ............. D24 /211
D502 , 264 S * 2 /2005 Timmer .... ........... ... D24 /211
D507 ,057 S * 7 /2005 Timmer ...... . D24 /211
D537, 166 S * 2 /2007 Huang D24 /211
D545 ,974 S * 7 /2007 Nan . D11/ 121
D545 ,975 S * 7 /2007 Bell ..... D24 /211
7 , 399 ,285 B2 * 7 /2008 Stein ..................... A61H 15 /02
601/ 15
D581, 229 S * 11/2008 Uglum . D838
D586 ,470 S * 2 / 2009 Warder D24/211
D596 , 306 S * 7 / 2009 Levine .......... D24 /214
D688 ,379 S * 8/ 2013 Ehlers
l eis . . . . . . . . . . . D21/685
D691,279 S * 10 / 2013 Hane-Karr ................... D24 /211
D691, 334 S * 10 / 2013 Byrne ........... D30 / 160
8 ,607 ,541 B1 * 12 /2013 Cavuoti .................. F16G 13 / 16
446 /120
8 ,808 ,208 B2 * 8/2014 Mouatt .................. A61H 7 / 001
601/ 135
D719 , 706 S * 12 / 2014 Hamill .......... D30 / 160
D726 ,028 S * 4 /2015 Thompson .......... ... ... ... D9 / 726
D776 ,370 S * 1/2017 Miksovsky .. .. .. .... D1/ 106
D789 ,548 S * 6 /2017 Cheng ......... D24 /211
D822 ,221 S * 7 / 2018 Huth ....... D24 /211
D827 ,847 S * 9 /2018 Downare .................. D24 / 211
D829 ,919 S * 10 /2018 Davis D24 /211
D830 , 569 S * 10 / 2018 Solomon ...................... D24 /215
* cited by examiner
U . S . Patent Jun . 4 , 2019 Sheet 1 of 5 US D850 ,640 S
them
-- - - - - - - - - - - - - - -
FIG . 1
5
yowekw wanawake
**
*
*
generationwarnis
-----
-
---
-
**
*
-
-
-
-
-
-
-
-
*
*
*
*
***
-**-
---
.
www
- - -- - - -- ---
- - -
FIG . 2
-
-
--
-
-
-
--
-
-.
..
..
.
..
.
.
www
-
-
-
-
-
-
-
-
- - - - - - - - - - -
- - - - - - - - - - - - - - --- -
FIG . 3
- -
-
-
--
-
.. .
- ....
-
**--
FIG . 4
U . S . Patent Jun . 4 , 2019 Sheet 5 of 5 US D850,640 S
YYYYYYYYYYYYYYYYYYYYYYYYYYYYYY
w testi tit it ti ti ti tu
-
-
-
+
-
+
*
*
*
*
**
**
**
**
*
*
- - - - -- - - - - --
- -- - - -
FIG . 5
EXHIBIT L
USOOD859680S
(12 ) United States Design Patent ( 10) Patent No.: US D859,680 S

Wersland et al. (45) Date of Patent: * * Sep . 10 , 2019
(54) MASSAGE ELEMENT (56 ) References Cited
(71) Applicant: THERAGUN , LLC , Santa Monica, CA U . S . PATENT DOCUMENTS
(US ) 1,947 ,042 A * 2/ 1934 Glennan ............... A61H 15 /02
401/ 174
(72 ) Inventors : Jason Wersland ,Manhattan Beach , CA 2 ,854 ,971 A * 10/ 1958 Williams .............. A61H 15 /00
(US); Michael Waldron , Dunnington 606 /238
(GB); Geert Ensing, Shanghai (CN ) 4 , 233, 966 A * 11/ 1980 Takahashi ............. A61H 39 /04
*
601/ 134
(73 ) Assignee: THERAGUN , LLC , Santa Monica, CA D270 ,279 S *
D274 ,555 S *
*
*
8 / 1983 Hamilton .... .... ............ D24 /211
7 /1984 Shiu .................. D24 /211
(US ) D311,790 S * 10 / 1990 Krief
*
. ... .. . . . D10 /68

D376 ,015 S * 11/ 1996 Newberry
*
. .. .... . D24 /211

(* * ) Term : 15 Years (Continued )
(21) Appl. No.: 29/690,357
OTHER PUBLICATIONS
(22 ) Filed : May 7, 2019 Amazon , “ TheraGun G2PRO Professional Massager” , Nov. 18 ,
2017 . https://www .amazon .com / TheraGun -G2PRO -Professional
Related U .S . Application Data Massager /dp /B07578H2GX / ref = cm _ cr _ arp _ d _ product _ top ? ie =
UTF8 . Shown on p . 1. ( Year: 2017 ).*
(63 ) Continuation of application No. 29/637 ,057, filed on
Feb . 13 , 2018 , now Pat. No. Des. 850 ,640 , which is Primary Examiner — Susan E Krakower
a continuation - in - part of application No. 15 /647 ,050 , Assistant Examiner — Michael A Maharajh
filed on Jul. 11 , 2017. (74 ) Attorney , Agent, or Firm — Jeffer Mangels ; Butler &
(51) LOC (12 ) Cl. ......................... 28 -03 Mitchell LLP; Brennan C . Swain , Esq .
(52 ) U . S . CI. (57 ) CLAIM
USPC ......................... .. . D24 /211
(58 ) Field of Classification Search The ornamental design for a massage element, as shown and
USPC ..... 52 /574 ; 273 / 153 P , 153 R , 153 S , 157 R , described .
273 / 160 ; 434 / 211, 259 ; 600 / 38 ; 601/ 15 , DESCRIPTION
601/ 18 , 19 , 27 , 28 , 29 , 30 , 31 , 32 , 46 , 47 ,
601/48 , 52, 72 , 99 , 112, 113 , 118 , 135 , FIG . 1 is a perspective view of a massage element showing
601/ 137 , DIG . 12 , DIG . 14 , DIG . 15 , our new design ;
601 /DIG . 16 , DIG . 17 ; D21/505 ; FIG . 2 is a front elevational view of the present invention
D24 /200, 211 , 212, 213 , 214 , 215 ; shown in FIG . 1, the rear , right and left side elevational
D9/ 434 , 443, 454; D8/ 378 ; D11/ 181; views being mirror images thereof;
D26 / 113 , 154 FIG . 3 is a top plan view of the present invention shown in
CPC ......... A61H 15 /0085 ; A61H 23 /0263 ; A61H FIG . 1 ; and ,
15 /00 ; A61H 39/04 ; A61H 15 / 0092; FIG . 4 is a bottom plan view of the present invention shown
A61H 7 /001; A61H 7 /003; F16G 13 / 16 ; in FIG . 1.
A63B 19 /00 ; A47C 16 /025
See application file for complete search history . 1 Claim , 4 Drawing Sheets
- - - - - - - -
-- - - . . .- - -
.. . . - . - . -.- .
US D859 ,680 S
Page 2
(56 ) References Cited D545, 974 S *

D545, 975 S *
7 / 2007 Nan ....
7 / 2007 Bell ...
.......... D11/ 121
. . ..... .. D24 /211
U . S . PATENT DOCUMENTS 7 ,399,285 B2 * 7 /2008 Stein ...................... A61H 15 /02
601/ 131
5 ,577, 996 A * 11/ 1996 Gardner ............. A61H 15 /0092 D581, 229 S * 11/ 2008 Uglum | D838
601/ 118 D586 ,470 S * 2 /2009
2009 Warder ..............••••• D24 /211
D387, 871 S * 12 / 1997 Childs D24 /211 D596 , 306 S * 7 /2009 Levine . . . . . . . . . . . . . . .. . . . . .. . . D24 /214
D389 , 409 S * 1/ 1998 Tucker .... ....... 09/454 D688,379 S * 8 /2013 Ehlers .. .. . . . D21/685
5,765,921 A * 6 / 1998 Chuang ........ ....... A47C 16 /025 D691,279 S * 10 /2013 Hane -Karr ........ .. .. .. . D24 /211
297/ 423.41 D691,334 S * 10 / 2013 Byrne ..........--*****.. . ... . . D30 / 121
D396 , 110 S * 7 / 1998 Kang ...... D24 /211 8 ,607, 541 B1 * 12 / 2013 Cavuoti ................... 446 / 120
D400,820 S * 11/ 1998 Hardy .. ...... .. ..... D11/ 117 8 ,808 ,208 B2 * 8 /2014 Mouatt .................. A61H 7 /001
D403, 076 S * 12 / 1998 York ..... D24 /214 482 / 131
D403, 428 S * 12 / 1998 Russo ....... D24 /200 D719 ,706 S * 12/2014 Hamill ....... . .......... D30 / 160
5 , 843 ,005 A * 12 / 1998 Chubinsky ............. A61H 7 /003 D726 ,028 S * 4 /2015 Thompson .. D28 / 7
601/ 15 D776 , 370 S * 1/2017 Miksovsky . . . . . . . . D1/ 106
6 ,036 ,463 A * 3/2000 Klassen FO1C 3 /06 D789 ,548 S * 6 / 2017 Cheng D24 /211
418 / 195 D822 ,221 S * 7 / 2018 Huth .. D24 /211 .......
6 ,102 ,876 A * 8/2000 Winger .............. A61H 15 /0092 D827 ,847 S * 9/2018 Downare ..... D24 /211
601/ 107 D829 ,919 S * 10 /2018 Davis D24 /211
6 , 109, 999 A * 8 /2000 Kuo .. A63B 19 /00 D830 ,569 S * 10 / 2018 Solomon D24 /215
446 /236 D850 ,640 S * 6 / 2019 Wersland ..................... D24 /211
D491,271 S * 6 /2004 Siegfried .................. D24 /211 2016 / 0367425 A1 * 12 /2016 Wersland ... ... ... A61H 1 /00
D502 , 264 S * 2 /2005 Timmer ...................... D24 /211 2018 /0200141 A1* 7 /2018 Wersland ........... A61H 15 /0085
D507 ,057 S * 7 / 2005 Timmer .................... D24 /211 2018 /0263845 A1 * 9 /2018 Wersland ........... A61H 23/0263
D537, 166 S * 2 /2007 Huang .. D24 /211
7 ,207,957 B2 * 4 /2007 Szczepanski ...... A61H 15 /0085
601112 * cited by examiner
atent Sep. 10 , 2019 Sheet 1 of 4 US D859,680 S
- -- -
-
-
---
- .
.
..***
*
-
-
st.-
-
FIG . 1
?????????????????
Whetr
-
-
--
-
---
-
--
----
-
-*
**
*
*
*
**
**
*
***
**
**
--
wii
.
-
-
-
--
. - . . - .- . - .- . -. - .
- - -- - - - - - - - - -- - -
NR.
FIG . 2
( w
-
-
-
-
-
.
+ .
.
-
-
+ -
-
-
-
-
+
-
w
-
-
- --
---
---
**** **----
-- - - - - -
FIG . 3
NY
-
-
-
*
*
*
*
*
**
**
*
*
-
-
- - - -- - - - - - . . . - - - -- -
FIG . 4

Theragun v. Complete Recovery - Complaint

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Theragun v. Complete Recovery - Complaint

Încărcat de

Drepturi de autor:

Formate disponibile

Case 2:20-cv-03821 Document 1 Filed 04/27/20 Page 1 of 46 Page ID #:1

1 GREGORY S. CORDREY (Bar No. 190144)

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

1 7. Theragun is informed and believes and thereon alleges that Defendants

1 import, and/or advertise their infringing products in or to this District and/or to

1 17. Theragun is the owner of United States Patent Number D879,985,

1 pertains to a particular ornamental design for an attachment for percussive massage

1 28. Plaintiff is a pioneer in the percussive massage therapy device market

1 33. Defendant RH is identified in CR’s materials as the importer of at least

1 41. Theragun owns the federally registered trademark THERAGUN, U.S.

1 48. As this is an exceptional case given Dezhou’s willful acts, pursuant to

1 services and/or deceive or to cause confusion or mistake among consumers as to the

1 THIRD CAUSE OF ACTION

1 64. As this is an exceptional case, given Defendants’ willful acts, pursuant

1 incorporating the design of the ‘261 Patent, including the above-identified

1 FOURTEENTH CAUSE OF ACTION

1 156. Defendants’ infringe literally or under the doctrine of equivalents, or

1 FIFTEENTH CAUSE OF ACTION

1 165. Defendants’ infringe literally or under the doctrine of equivalents, or

1 SIXTEENTH CAUSE OF ACTION

1 174. Defendants’ infringe literally or under the doctrine of equivalents, or

1 SEVENTEENTH CAUSE OF ACTION

1 L. For compensatory damages in an amount to be proven at trial, including

1 DEMAND FOR JURY TRIAL

(56 ) References Cited

U . S . Patent May 21, 2019 Sheet 1 of 5 US D849,261 S

U . S . Patent May 21, 2019 Sheet 2 of 5 US D849,261 S

atent May 21 , 2019 Sheet 3 of 5 US D849,261 S

U . S . Patent May 21, 2019 Sheet 4 of 5 US D849,261 S

U . S . Patent May 21, 2019 Sheet 5 of 5 US D849,261 S

(12 ) United States Design Patent ( 10) Patent No.:

(56 ) References Cited

U . S . Patent Sep. 24 , 2019 Sheet 1 of 4 US D861, 182 s

U . S . Patent Sep. 24 , 2019 Sheet 2 of 4 US D861, 182 s

U . S . Patent Sep. 24 , 2019 Sheet 3 of 4 US D861, 182 S

U . S . Patent S ep. 24 , 2019 Sheet 4 of 4 US D861, 182 S

(56 ) References Cited

U . S . Patent Jun . 4 , 2019 Sheet 1 of 5 US D850 ,640 S

U . S . Patent Jun . 4 , 2019 Sheet 2 of 5 US D850 ,640 S

U . S . Patent Jun . 4 , 2019 Sheet 3 of 5 US D850 ,640 S

U . S . Patent Jun . 4 , 2019 Sheet 4 of 5 US D850 ,640 S

U . S . Patent Jun . 4 , 2019 Sheet 5 of 5 US D850,640 S

(12 ) United States Design Patent ( 10) Patent No.: US D859,680 S

. ... .. . . . D10 /68

. .. .... . D24 /211

(56 ) References Cited D545, 974 S *

atent Sep. 10 , 2019 Sheet 1 of 4 US D859,680 S

atent Sep. 10 , 2019 Sheet 2 of 4 US D859,680 S

atent Sep. 10 , 2019 Sheet 3 of 4 US D859,680 S

atent Sep. 10 , 2019 Sheet 4 of 4 US D859,680 S

S-ar putea să vă placă și