Stephen M. Feldman, OSB No. 932611' …s.wsj.net/public/resources/documents/WSJ_3rd_Amended_No418.pdf · A copy of the Certificate of Registration for this ... (Brand Strategy, September

Stephen M. Feldman, OSB No. 932611' [email protected] R. Johnson, OSB No. 01064; [email protected] COIE u-pl l20 NW Couch Street , l0 'h F loorPortland, OR 97 209-4128Telephone: (5O3) 727 -2000

Facsimile: (5O3) 727 -2222

Attorneys for Plaintiffs

Jerre B. Swann; [email protected] H. Brewster; [email protected]. Charles Henn Jr.; [email protected] STOCKTON LLPSuite 280011(X) Peachtree StreetAtlanta, GA 30309Telephone: (404) 815-6500Facsimile: (404) 815-6555

Of Counsel for Plaintiffs

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

ADIDAS AMERICA,INC. and ADIDAS AG,

Plaintiffs,

PAYLESS SHOESOURCE. INC..

Defendant.

I- THIRD AMENDED COMPLAINT

[2r 184-0010/PA062 t40 009]

No. CV0l-1655 RE (Lead Case)RELATED CASE to CV03-1116 RE

THIRD AMENDED COMPLAINT(Trademark & Trade Dress Infringement,Trademark & Trade Dress Dilution, UnfairCompetition, and Deceptive TradePractices)

DEMAND FOR JURY TRIAL

PERKTNS Cotr llpI 120 NW Couch Street, 10'n Floor

PORTL ND, ORF.coN 97 209-4 128(-503) 727-2000(so3) 727 -2222

Plaintiffs adidas America, Inc. and adidas AG (collectively, "adidas" or "Plaintiffs") state

the following for their Third Amended Complaint against Payless ShoeSource, hc. ("Payless" or

"Defendant"):

1 This is an action at law and in equity for trademark infringement and dilution,

trade dress infringement and dilution, injury to business reputation, unfair competition, and

deceptive trade practices, arising under the Trademark Act of 1946, l5 U.S.C. gg 1051 er se4.

(2004) ("Lanham Act"); the antidilution laws of the several states, including the Oregon

antidilution statute, O.R.S. $ 647.107; the fair business practices and unfair and deceptive trade

practices acts of the several states, including the Oregon Unlawful Trade Practices Act, O.R.S. $$

646.605 to 646.656; and the common law.

2- Defendant is offering for sale and selling footwear that bears confusingly similar

imitations of Plaintiffs' registered Three-Stripe Mark and the SUPERSTAR Trade Dress.

Defendant's footwear is not manufactured by adidas, nor is Defendant connected or affiliated

with, or authorized by, adidas in any way. Defendant's merchandise is likely to cause confusion

and to deceive consumers and the public regarding its source, and dilutes and tarnishes the

distinctive quality ofadidas's marks and trade dress.

JURISDICTION AND VENUE

3. This Court has subject matter jurisdiction under section 39 of the Lanham Act, 15

U.S.C. S 1121,andunder28U.S.C. gg 1331 and 1338. ThisCourthas jurisdictionover

Plaintiffs' related state and common-law claims pursuant to 28 U.S.C. $$ 1338 and 1367. In

addition, this Court has jurisdiction pursuanr to 28 U.S.C. g 1332(a) because the parties'

citizenship is diverse and the amount in controversy exceeds $75,000, exclusive of interest and

costs-

4. This Court has personal jurisdiction over Defendant because, on information and

belief, Defendant has distributed or sold infringing merchandise within this State, has engaged in

acts or omissions within this State causing injury, has engaged in acts or omissions outside of

2- THIRD AMENDED COMPLAINT

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this State causing injury within this State, has manufactured or distributed products used or

consumed within this State in the ordinary course of trade, or has otherwise made or established

contacts with this State sufficient to permit the exercise of personal jurisdiction. This District is

a proper venue pursuant to 28 U.S.C. $ 1391(bX2) because a substantial part of the events or

omissions giving rise to Plaintiffs' claims occurred in this District.

THE PARTIES

5. Plaintiff adidas AG is a joint stock company organized and existing under the

laws of the Federal Republic of Germany, having its office and principal place of business at

Pos tfach 1 1 20, D -9 1 07 2 Herzo genaurach, Federal Republic of Germany.

6. Plaintiff adidas America, Inc., is a corporation organized and existing under the

laws of the State of Delaware, having its principal place of business at 5055 N. Greeley Avenue,

Portland, Oregon 97217. adidas America, [nc. is wholly-owned by adidas AG and its affiliates,

and within this country adidas America is a licensed distributor of ADIDAS brand merchandise,

including goods bearing the distinctive Three-Stripe trademark. Plaintiffs adidas AG and adidas

America, Inc., and any predecessors or related entities, are collectively refened to as "adidas."

7. On information and belief, Defendant Payless ShoeSource, Inc. is a Missouri

corporation with a principal place ofbusiness at3231 East Sixth Street, Topeka, Kansas 66607.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

The World-Famous Three-Stripe Mark

8. adidas is currently, and for years has been, one ofthe world's leadinq

manufacturers of athletic footwear, sportswear, and sporting equipment. Over fifty years ago,

adidas first placed three parallel bands on its athletic shoes, and the Three-Stripe Mark came to

signify the quality and reputation of adidas footwear to the sporting world early in the company's

history.


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9. At least as early as 1952, adidas began using the Three-Stripe Mark on athletic

footwear sold in the United States and worldwide. Pages from adidas catalogs featuring footwear

bearing the Three-Stripe Mark are attached as Exhibit 1.

10. adidas AG is the owner of a federal trademark registration, Reg. No. 1,8 15,956,

issued by the United States Patent and Trademark Office on January ll, 1994, for the Three-

Stripe Mark, as depicted below, for "athletic footwear."

Affidavits have been filed pursuant to Sections 8 and 15 of the Lanham Act, l5 U.S.C. $$ 1058

and 1065, and this registration is incontestable. A copy of the Certificate of Registration for this

mark is attached as Exhibit 2.

I L adidas AG is the owner of a federal trademark registration, Reg. No. 1,833,868,

issued by the United States Patent and Trademark Office on May 3, 1994, for the Three-Stripe

Mark, as depicted below, coverins "athletic footwear."

Affidavits have been filed pursuant to Sections 8 and 15 of the Lanham Act, l5 U.S.C. $$ 1058

and 1065, and this registration is incontestable. A copy ofthe Certificate ofRegistration for this


12. adidas AG is the owner of a federal trademark registration, Reg. No. 2,2'78,589,

issued by the United States Patent and Trademark Office on September 21, 1999, for the Three-

Stripe Mark, as depicted below, covering "athletic footwear."


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Affidavits have been filed pursuant to Sections 8 and 15 of the Lanham Act, 15 U.S.C. $$ 1058

and 1065, and this registration is incontestable. A copy of the Certificate of Registration for this


13. adidas AG is the owner of a federal trademark registration, Reg. No. 3,029,135,

issued by the United States Patent and Trademark Office on December 13,2005, for the Three-

Stripe Mark, as depicted below, for "footwear."

I

A copy of the Certificate of Registration for this mark is attached as Exhibit 5.

14. adidas AG is the owner of a federal trademark registration, Reg. No. 3,O29,129,

issued by the United States Patent and Trademark Office on December I3,2OO5, for the Three-

Stripe Mark, as depicted below, for "footwear."



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15. adidas is the owner of a federal trademark registration, Reg. No. 2,909,861, issued

by the United States Patent and Trademark Office on December 14,2OO4, for the Three-Stripe

Mark, as depicted below, covering "footwear, namely, slides."


16. adidas is the owner of a federal trademark registration, Reg. No. 2,999,646, issued

by the United States Patent and Trademark Office on September 21 ,2005, for the Three-Stripe

Mark, as depicted below, covering "footwear, namely, slides."


17. adidas also owns numerous additional trademark registrations for the Three-Stripe

Mark covering footwear and various items of apparel, including U.S. Reg. Nos. 870,136,

96r,353,2,016,963,2,O58,619,2,284,308,2,218,591,3,029,r27,3,O29,r35,3,063,745,

3,063,742, and 3,087,329. A copy of the Certificate of Registration for each of these marks is

attached as Exhibit 9.

18. adidas also owns federal registrations for verbal trademarks using the term "three

stripes" including THE BRAND WITH THE THREE STRIPES, Reg. No. 1,674,229, for sport

and leisure wear.

19. The Three-Stripe Mark is non-functional, and the public well recognizes and

understands that the Three-Stripe Mark distinguishes and identifies adidas merchandise. Indeed,


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unsolicited media coverage has refened to the "signature three stripes" (L.A. Times, August 13,

2004),the"famousbrandwiththethreestripes" (SanFranciscoChronicle,July7,2OO2),and

the "legendary Adidas three stripes" (Brand Strategy, September 21 ,1999)

20. adidas's Three-Stripe Mark is well known and famous and has been for many

years. adidas has used the Three-Stripe Mark in connection with its frequent sponsorship of

sports tournaments and organizations, as well as professional athletes and collegiate sports teams.

For example, adidas has long-term relationships with the New York Yankees, Notre Dame, the

University of California at Los Angeles, the University of Nebraska and the University of

Tennessee. Among many others, NBA stars Tim Duncan, Kevin Garnett, and Tracy McGrady,

professional golfer Sergio Garcia, baseball player Nomar Garciaparra, and soccer stars David

Beckham and Eddie Pope all are sponsored by adidas. For many years, adidas has been a

sponsor of the World Cup soccer tournament, has sponsored the world-famous Boston Marathon

for more than a decade, and has sponsored many other events, teams, and individuals. Prominent

use of the Three-Stripe Mark in connection with these sponsorship activities has further

enhanced the marks' recognition and fame.

21. For many years, adidas has extensively and continuously used and promoted the

Three-Stripe Mark in connection with athletic footwear and sportswear. [n recent years, annual

sales of products bearing the Three-Stripe Mark have totaled in the billions of dollars globally

and in the hundreds of millions of dollars within the United States. The Three-Stripe Mark has

achieved international fame and tremendous public recognition.

B. The SUPERSTAR Trade Dress

22. The SUPERSTAR model is a famous shoe featuring a distinctive appearance.

including a unique and non-functional combination of three stripes on the side of the shoe

parallel to equidistant small holes, a rubber "shell toe," a particularly flat sole and a colored

portion on the outer back heel section, that identifies to consumers that the origin of the product

lies with adidas (the "SUPERSTAR Trade Dress"), as depicted below:


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23. Since introducing its SUPERSTAR Trade Dress, adidas has spent hundreds of

thousands of dollars promoting the product and its appearance. As a result of adidas's

continuous and exclusive use of the SUPERSTAR Trade Dress in connection with its products,

the trade dress enjoys wide public acceptance and association with adidas, and has come to be

recognized widely and favorably by the public as an indicator of the origin of adidas's goods.

24. The fame and popularity of the SUPERSTAR Trade Dress, and particularly the

"shell toe" feature, is evident from popular press reports, including the following:

r "I have lots of Adidas because I like the sbell-toe classic like Run-DMC." David

A. Keeps, "Taye Diggs," In Style, December 2002,at250.

"Perfect to chill to, dust offthe Adidas shell toes, post up on the stoop, and blare

it out the window." Heather Kuldell, 'Beastie Boys DJ Scratches Your Eyes

Out," The Georgia State University Sienal, September 2l ,2OOI.

"New York's biggest trendsetters are going public with their locker room gear this

summer . . . . Annemie Dreves - a.k.a. 'Number 56' - pairs this football-style

jersey with well-wom jeans slit at the ankles and shell-toe Adidas." Danielle

kvitt & Libby Callaway, "Gym Dandies," The New York Post, September 2,

2001.

"One such shoe is the Adidas Superstar, with its now famous rubber shell toe.

Introduced in 1969 as abasketball shoe, it was wom bythree-quarters ofNational


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Basketball Association players by the mid '70s but fell in popularity in the '80s,

when chunky Nikes and Reeboks dominated. Championed by rappers Run DMC,

who wrote My Adidas in 1986, and later the Beastie Boys, they became a cult

fashion item, prompting Adidas to re-release old models." Dominique Jackson,

"Sneaky Feelings," The Australian, August 17,2001.

"This season she's wearing fraying and faded Earl Jeans, Adidas shell toes and an

asymmetric top." PR Week, July 13, 2001, at 11.

"dido . . . In her urban chic attire, she is an English rose with a thorny edge . . . .

For casual days, she gravitates toward Adidas shell-toe sneakers, T-shirts with

iron-on decals; and Katayone Adeli or Diesel pants." Heidi Sherman, "Amped +

Vamped: Sample the Style High Notes of Destiny's Child, Sheryl Crow, Macy

Gray and More," In Style, July 2001, at 186.

"But when Michele Corbett stopped in during her lunch hour to buy a pair of

popular Adidas called Superstars (some call them shell toes), she was told that

particular pair was not on sale." Bruce Mohl, "Old-Fashioned Bill-Paying Gets

New Wrinkle," The Boston Globe, May 13,2001, at C3.

"'It's hard for me not to be passionate, because passion is something that's in me,'

says the Z2-yeatold star, decked out in diamonds and a white linen Enyce suit

with Adidas shell-toe sneakers." Farrah Weinstein. "Stvle and Substance: Twese

Gibson," The New York Post, July l, 2001, at 52.

"He expects the trefoil group to appeal to women as it already does to high school

girls who favor the brand's shell-toe shoes and three-stripe jackets." Rosemary

Feitelberg, "Adidas Maps Three-Tier Apparel Plan," Women's Wear Daily,

October 12.2O00.atl l .


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r "Fusing rock with hip-hop has been the subject of experiments before many nu-

metal groups could fit into a pair of shell-toe Adidas." Chris Macias, "Kings of

Rock N' Rap," Sacramento Bee, October I7, 1999, at El9.

25. As a result of adidas's extensive use and promotion of its SUPERSTAR Trade

Dress, adidas has built up and now owns valuable goodwill that is symbolized by the trade dress.

The purchasing public has come to associate the SUPERSTAR Trade Dress with adidas.

adidas's SUPERSTAR Trade Dress is distinctive and non-functional and has achieved sienificant

secondary meaning.

DEFENDANT'S UNLAWFUL ACTIVITIES

26. On information and belief, Payless imports, markets, sells, and offers for sale

goods in interstate cornmerce that bear a confusingly similar imitation of adidas's Three-stripe

Mark and are, in many cases, knock-offs of well-known adidas styles. Photographs of these

shoes appear in the attached Exhibit 10.

21 . On information and belief, Payless is importing, marketing, distributing, offering

for sale and selling goods in interstate commerce that bear a confusingly similar imitation of

adidas's SUPERSTAR Trade Dress. One example is depicted below, and others appear in the

attached Exhibit 11.

adidas Superstar Pavless Imitation

28. The goods distributed, offered for sale and sold by Defendant are not

manufactured by adidas, nor is Defendant associated or connected with adidas, or licensed,

authorized, sponsored, endorsed or approved by adidas in any way.

IO- THIRD AMENDED COMPLAINT

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29. Plaintiffs used the Three-Stripe Mark and the SUPERSTAR Trade Dress

extensively and continuously before Defendant began using and selling confusingly similar

imitations of Plaintiffs' footwear.

30. The goods sold by Defendant are similar to and compete with goods sold by

Plaintiffs, and these goods are sold through overlapping channels of trade.

31. Defendant's use of confusingly similar imitations of Plaintiffs' Three-Stripe Mark

and SUPERSTAR Trade Dress is likely to deceive, confuse and mislead prospective purchasers

and purchasers into believing that footwear sold by Defendant is manufactured by, authorized by

or in some manner associated with Plaintiffs, which it is not. The likelihood of confusion,

mistake and deception engendered by Defendant's misappropriation of Plaintiffs' mark and trade

dress is causing irreparable harm to the goodwill symbolized by the Three-Stripe Mark and the

SUPERSTAR Trade Dress and the reputation for quality thar they embody.

32. Defendant's activities are likely to cause confusion before, during, and after the

time of purchase because purchasers, prospective purchasers and others viewing Defendant's

footwear at the point of sale or on a wearer are likely -- due to Defendant's use of confusingly

similar imitations of the Three-Stripe Mark and the SUPERSTAR Trade Dress -- to mistakenly

attribute the product to adidas. This is particularly damaging with respect to those persons who

perceive a defect or lack of quality in Defendant's products. By causing such a likelihood of

confusion, mistake and deception, Defendant is inflicting ineparable harm to the goodwill

symbolized by the Three-Stripe Mark and the SUPERSTAR Trade Dress, and the reputation for

quality that they embody.

33. Upon information and belief, Defendant continues to use confusingly similar

imitations of adidas's Three-Stripe Mark and SUPERSTAR Trade Dress in connection with the

sale of products that are directly competitive to those offered by adidas. Defendant began selling

these imitations well after adidas had established protectable rights in its Three-Stripe Mark and

SUPERSTAR Trade Dress.

I I- THIRD AMENDED COMPLAINT

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34. On information and belief, Defendant knowingly, willfully, intentionally and

maliciously adopted and used confusingly similar imitations of Plaintiffs' Three-stripe Mark and

SUPERSTAR Trade Dress.

35. Defendant's intentional and bad faith conduct is evident from the fact that many

of the shoes depicted in Exhibit 10 are imitations of well-known and successful adidas styles.

For example, Payless has sold more than thirty (30) different imitations of the adidas Country

Ripple. One is depicted below, and additional examples are collected in the attached Exhibit 12.

adidas Country Ripple Payless Imitation

36. As an additional example, Payless has sold at least seventeen (17) imitations of

the adidas Tuscany/adi Racer. One is depicted below, and additional examples are collected in

the attached Exhibit 13.

adidas Tuscanv/adi Racer Payless Imitation


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31.

Prajna. One

As an additional

is depicted below,

adidas Praina

example, Payless has sold a dozen (12) imitations of the adidas

and additional examoles are collected in the attached Exhibit 14.

Pavless Imitation

38. Payless also has sold imitations of several other adidas styles, including the Copa

Mundial, Campus, Samoa, Stan Smith, and Mei. One example of each is depicted below.

adidas Copa Munial Pavless Imitation

adidas Campus Pavless Imitation


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adidas Samoa

adidas Stan Smith Millennium

adidas Mei


[2] 184-0010/PA062 t40 009]

Pavless Imitation

Payless Imitation

PERKINS COIE LLP1120 NW Couch Street, l0'h Floor

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FIRST CLAIM FOR RELIEF(Federal Trademark Infringement of Three-Stripe Mark)

39. Plaintiffsrepeatandincorporatebyreferencetheallegationsinparagraphs l-38.

40. Defendant's use of confusingly similar imitations of Plaintiffs' Three-Stripe Mark

is likely to cause confusion, deception, and mistake by creating the false and misleading

impression that Defendant's goods are manufactured or distributed by Plaintiffs, or are associated

or connected with Plaintiffs, or have the sponsorship, endorsement, or approval of Plaintiffs.

4L Defendant has used marks confusingly similar to Plaintiffs' federally registered

marks in violation of 15 U.S.C. $ I I14, and Defendant's activities have caused and, unless

enjoined by this Court, will continue to cause a likelihood ofconfusion and deception of

members of the trade and public and, additionally, injury to Plaintiffs' goodwill and reputation as

symbolized by the federally registered Three-Stripe Mark, for which Plaintiffs have no adequate

remedy at law.

42. Defendant's actions demonstrate an intentional. willful. and malicious intent to

trade on the goodwill associated with Plaintiffs' federally registered Three-Stripe Mark to

Plaintiffs' great and irreparable injury.

43. Defendant has caused and is likely to continue causing substantial injury to the

public and to Plaintiffs, and Plaintiffs are entitled to injunctive relief and to recover Defendant's

profits, actual damages, enhanced profits and damages, costs, and reasonable attorneys' fees

unde r 15 U .S .C . $$ 1114 , 1116 and 1 l 17 .

SECOND CLAIM FOR RELIEF(Federal Unfair Competition as to Three-Stripe Mark)

44. Plaintiffs repeat and incorporate by reference the allegations in paragraphs 1-43.

45. Defendant's use of knockoff duplicates or confusingly similar imitations of

Plaintiffs' Three-Stripe Mark has caused and is likely to cause confusion, deception, and mistake

by creating the false and misleading impression that Defendant's goods are manufactured or


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distributed by Plaintiffs, or are affiliated, connected, or associated with Plaintiffs, or have the

sponsorship, endorsement, or approval of Plaintiffs.

46. Defendant has made false representations, false descriptions, and false

designations of origin of its goods in violation of l5 U.S.C. $ I125(a), and Defendant's activities

have caused and, unless enjoined by this Court, will continue to cause a likelihood of confusion

and deception of members of the trade and public and, additionally, injury to Plaintiffs' goodwill

and reputation as symbolized by the Three-Stripe Mark, for which Plaintiffs have no adequate

remedy at law.


trade on the goodwill associated with Plaintiffs' Three-Stripe Mark to the great and irreparable

injury of Plaintiffs.

48. Defendant's conduct has caused, and is likely to continue causing, substantial

injury to the public and to Plaintiffs, and Plaintiffs are entitled to injunctive relief and to recover

Defendant's profits, actual damages, enhanced profits and damages, costs, and reasonable

attorneys' fees pursuant to 15 U.S.C. gg 1125(a), I I 16 and 1l17.

THIRD CLAIMFOR RELIEF(Federal Unfair Competition as to SUPERSTAR Trade Dress)


50. Plaintiffs' SUPERSTAR Trade Dress has acquired secondary meaning.

5 1. Defendant's use of knockoff duplicates or confusingly similar imitations of

Plaintiffs' SUPERSTAR Trade Dress has caused and is likely to cause confusion, deception, and

mistake by creating the false and misleading impression that Defendant's goods are

manufactured or distributed by Plaintiffs, or are affiliated, connected, or associated with

Plaintiffs, or have the sponsorship, endorsement, or approval of Plaintiffs.

52. Defendant has made false representations, false descriptions, and false

designations of origin of its goods in violation of 15 U.S.C. $ I125(a), and Defendant's activities

I 6- THIRD AMENDED COMPLAINT

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have caused and, unless enjoined by this Court, will continue to cause a likelihood of confusion

and deception of members of the trade and public and, additionally, injury to Plaintiffs' goodwill

and reputation as symbolized by the SUPERSTAR Trade Dress, for which Plaintiffs have no

adequate remedy at law.

53. Defendant's actions demonstrate an intentional, willful, and malicious intent to

trade on the goodwill associated with Plaintiffs' SUPERSTAR Trade Dress to the great and

irreparable injury of Plaintiffs.

54. Defendant's conduct has caused, and is likely to continue causing, substantial

injury to the public and to Plaintiffs, and Plaintiffs are entitled to injunctive relief and to recover

Defendant's profits, actual damages, enhanced profits and damages, costs, and reasonable

attomeys' fees pursuant to 15 U.S.C. gg I125(a), 1116 and 1117.

FOURTH CLAIM FOR RELIEF(Federal Dilution as to Three-Stripe Mark)


56. Plaintiffs have extensively and continuously promoted and used the registered

Three-Stripe Mark both in the United States and throughout the world, and the Three-Stripe

Mark has thereby become a famous and well-known symbol of adidas's goods and services.

57 . Defendant is making commercial use in commerce of marks that dilute and are

likely to dilute the distinctiveness of Plaintiffs' Three-Stripe Mark by eroding the public's

exclusive identification of this famous mark with Plaintiffs, tarnishing and degrading the positive

associations and prestigious connotations of the mark, and otherwise lessening the capacity of the

mark to identify and distinguish goods and services.


trade on the goodwill associated with Plaintiffs' Three-Stripe Mark or to cause dilution of the

Three-Stripe Mark, to the great and irreparable injury of Plaintiffs.

1 7- THIRD AMENDED COMPLAINT

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59. Defendant has caused and will continue to cause irreparable injury to Plaintiffs'

goodwill and business reputation, and dilution of the distinctiveness and value of Plaintiffs'

famous and distinctive Three-Stripe Mark in violation of l5 U.S.C. $ 1125(c), and Plaintiffs

therefore are entitled to injunctive relief and to Defendant's profits, actual damages, enhanced

profits and damages, costs, and reasonable attorneys' fees pursuant to l5 U.S.C. $$ 1125(c),

1116 and 1117 .

FIFTH CLAIM FOR RELIEF(Federal Dilution as to SUPERSTAR Trade Dress)

60. Plaintiffs repeat and incorporate byreference the allegations in paragraphs l-59.

61. Plaintiffs have extensively and continuously promoted and used the SUPERSTAR

Trade Dress both in the United States and throughout the world, and the SUPERSTAR Trade

Dress has thereby become a famous and well-known indicator of the origin of adidas's goods and

services.

62. Defendant is making commercial use in commerce of trade dress that dilutes and

is likely to dilute the distinctiveness of Plaintiffs' SUPERSTAR Trade Dress by eroding the

public's exclusive identification of this famous trade dress with Plaintiffs, tamishing and

degrading the positive associations and prestigious connotations ofthe trade dress, and otherwise

lessening the capacity ofthe trade dress to identify and distinguish goods and services.


trade on the goodwill associated with Plaintiffs' SUPERSTAR Trade Dress or to cause dilution

of the SUPERSTAR Trade Dress, to the great and irreparable injury of Plaintiffs.

64. Defendant has caused and will continue to cause irreparable injury to Plaintiffs'


famous and distinctive SUPERSTAR Trade Dress in violation of 15 U.S.C. $ 1125(c), and

Plaintiffs therefore are entitled to injunctive relief and to Defendant's prohts, actual damages,


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PORTI-,\ND, ORFrco\ 97209-4128(5O3)'t2'1-2OOO(.s03) 727 -2222

enhanced profits and damages, costs, and reasonable attorneys' fees pursuant to 15 U.S.C. $$

1125(c), 1116 and 1111.

SIXTH CLAIM FOR RELIEF(State Trademark Dilution and Injury to Business Reputation

as to Three-Stripe Mark)

65. Plaintiffs repeat and incorporate by reference the allegations contained in

paragraphs l-64.

66. Plaintiffs have extensively and continuously promoted and used the registered

Three-Stripe Mark throughout the United States including the State of Oregon, and the mark has

thereby become a distinctive, famous and well-known symbol of adidas's goods and services.

61 . Defendant's unauthorized use of Plaintiffs' registered Three-Stripe Mark dilutes

and is likely to dilute the distinctiveness of Plaintiffs' mark by eroding the public's exclusive

identification of this famous and well-known mark with Plaintiffs, and tarnishing and degrading

the positive associations and prestigious connotations of the mark.

68. Defendant is causing and will continue to cause irreparable injury to Plaintiffs'

goodwill and business reputation, and dilution ofthe distinctiveness and value ofPlaintiffs'

famous and distinctive Three-Stripe Mark in violation of the Oregon antidilution act, O.R.S.

E 647.107 (2005), as well as the antidilution laws of the several states, including Alabama, ALA.

CODE $ 8-12-17 (2003); Alaska, ALASKA STAT. $45.50.180 (Michie 2OO2); Arizona, ARZ.

REV. STAT. ANN. $44-1448.01 (West 2003); Arkansas, ARK. CODE ANN. $ 4-71-213

(2OO2); California, CAL. BUS. & PROF. CODE $ 14330 (West 003); Connecticut, CONN.

GEN. STAT. ANN $ 35-l l i(c) (West 2003);Delaware, DEL. CODE ANN. tit.6, $ 3313 (2002);

Florida, FLA. STAT. ANN. $ 495.151(West 2003);Georgia, cA. CODE ANN. $ l0-1-451

(2003);Hawaii, HAW. REV. STAT. ANN. 9482-32 (Michie 2003);Idaho,IDAHO CODE g 48-

513 (Michie 2002); I l l inois,l65nL. COMP. STAT. ANN. 1036/65 (2003); Iowa,IOWA CODE

ANN. $ 548.113 (West 2003); Kansas, KAN. STAT. ANN. $ 81-214 (2002); Louisiana, LA.


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REV. STAT. ANN. $ 5l:223.1(West 2003); Maine, ME. REV. STAT. ANN. tit. 10, $ 1530

(West 2003); Massachusens, MASS. cEN. LAWS. ANN. ch. ll0B, g 12 (West 2003);

Minnesota, MINN. STAT. ANN. $ 333.285 (West 2003); Mississippi, MISS. CODE. ANN.

S 75-25-25 (2003); Missouri, MO. ANN. STAT. $ 417.061(l) (West 2002); Montana, MONT.

CODE ANN. $ 30-13-334 (2003); Nebraska, NEB. REV. STAT. ANN. $87-140 (Michie 2002);

New Hampshire, N.H. REV. STAT. ANN. g 350-,4:12 (.2003); New Jersey, N.J. STAT. ANN.

56:3- 13.20 (West 2003); New Mexico, N.M. STAT. ANN. $ 57-38-15 (Michie 2fi)2); New

York, N.Y. GEN. BUS. Law $ 360J (2003); Oregon, OR. REV. STAT. $ 647.107 (2001);

Pennsylvania, 54 PA. CONS. STAT. ANN. $ 1124 (West 1996); Rhode Island, R.I. GEN.

LAWS $ 6-2-12 (1992); South Carolina, S. C. CODE ANN. $ 39-15-1165 (2OO2): Tennessee,

TENN. CODE ANN. $ 47-25-513 (2003); Texas, TEX. BUS. & COM. CODE ANN. $ 16.29

(Vernon 2003); Utah, UT. CODE ANN. $70-3a-4O3 (2002); Washington, WASH. REV. CODE

ANN. $ 19.77 .160 (2003); West Virginia, W. VA. CODE ANN. 47-2- l3 (Michie 2003); and

Wyoming, WYO. STAT. ANN. $ 40-l-115 (Michie 2002). Plaintiffs therefore are entitled to

injunctive relief, damages and costs, as well as, if appropriate, enhanced damages and reasonable

attorneys' fees.

SEVENTH CLAIM FOR RELIEF(State Trade Dress Dilution and Injury to Business Reputation

as to SUPERSTAR Trade Dress)

69. Plaintiffs repeat and incorporate by reference the allegations contained in

paragraphs 1-68.

10. Plaintiffs have extensively and continuously promoted and used the SUPERSTAR

Trade Dress throughout the United States including the State of Oregon, and the trade dress has

thereby become a distinctive and well-known symbol of adidas's goods and services.

7 l. Defendant's unauthorized use of Plaintiffs' SUPERSTAR Trade Dress dilutes the

distinctiveness of the trade dress by eroding the public's exclusive identification of this


12l I 8.1-00 | 0/ P A062140 0091

PERKTNS CotE llpI 120 NW Couch Street, l0'h Floor

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distinctive trade dress with Plaintiffs, and tarnishing and degrading the positive associations and

prestigious connotations thereof.

72. Defendant is causing and will continue to cause irreparable injury to Plaintiffs'


distinctive SUPERSTAR Trade Dress in violation of the Oregon antidilution act, O.R.S.

$ 647.107 (2005), as well as the antidilution laws of the several states, including Alabama, ALA.

CODE $ 8-12-17 (2003); Alaska, ALASKA STAT. $45.50.180 (Michie 2OO2); Aizona, ARZ.

REV. STAT. ANN. $44-1448.01 (West 2003);Arkansas, ARK. CODE ANN. $ 4-ll-213

(2OO2); California, CAL. BUS. & PROF. CODE $ 14330 (West 003); Connecticut, CONN.

GEN. STAT. ANN $ 35-1li(c) (West 2003);Delaware, DEL. CODE ANN. tit.6, $ 3313 (2OO2);

Florida, FLA. STAT. ANN. $ 495.151(West 2003); Georgia, cA. CODE ANN. $ I0-l-451

(2003);Hawaii, HAW. REV. STAT. ANN. $482-32 (Michie 2003);Idaho,IDAHO CODE $ 48-

513 (Michie 2002); Illinois,765n-L. COMP. STAT. ANN. 1036/65 (2003); Iowa,IOWACODE

ANN. $ 548.113 (West 2003); Kansas, KAN. STAT. ANN. $ 8l-214 (2OO2); Louisiana, LA.

REV. STAT. ANN. $ 5l:223.1(West 2003); Maine, ME. REV. STAT. ANN. tit. 10, $ 1530

(West 2003); Massachusetts, MASS. cEN. LAWS. ANN. ch. 1108, g 12 (West 2003);

Minnesora, MINN. STAT. ANN. $ 333.285 (West 2003); Mississippi, MISS. CODE. ANN.

gl5-25-25 (2003); Missouri, MO. ANN. STAT. $ 417.061(l) (West 2002);Montana, MONT.

CODE ANN. $ 30-13-334 (2003);Nebraska, NEB. REV. STAT. ANN. $87-140 (Michie 2002);

New Hampshire, N.H. REV. STAT. ANN. $ 350-4:12 (2003); New Jersey, N.J. STAT. ANN.

56:3- 13.2O (West 2003); ; New Mexico, N.M. STAT. ANN. g 57-38-15 (Michie 2002); New

York, N.Y. GEN. BUS. Law $ 360-l (2003); Oregon, OR. REV. STAT. $ 647.107 (201);

Pennsylvania, 54 PA. CONS. STAT. ANN. $ I124 (West 1996); Rhode Island, R.I. GEN.

LAWS S 6-2-12 (1992); South Carolina, S. C. CODE ANN. $ 39-15-1 165 (2OO2); Tennessee,

TENN. CODE ANN. $ 4l-25-513 (2003); Texas, TEX. BUS. & COM. CODE ANN. $ 16.29

(Vernon 2003);Utah, UT. CODE ANN. 970-3a-403 (2002'l: Washington, WASH. REV. CODE

2I- THIRD AMENDED COMPLAINT

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PnnrtNs CorB rr-pI120 NW Couch Street, 10'h Fioor

PORrL,\ND. ORricoN 97 209-4128(so3) '721-2OU)

(503) ',72'1-2222

ANN. $ 19.77 .160 (2003); West Virginia, W. VA. CODE ANN. 47-2- 13 (Michie 2003); and

Wyoming, WYO. STAT. ANN. $ 40-l-115 (Michie 2002). Plaintiffs therefore are entitled to

injunctive relief, damages and costs, as well as, if appropriate, enhanced damages and reasonable

attorneys'fees.

EIGHTH CLAIM FOR RELIEF(Common Law Trademark Infringement and Unfair Competition)


14. Defendant's acts constitute common law trademark infringement and unfair

competition, and have created and will continue to create a likelihood of confusion to the

irreparable injury of Plaintiffs unless restrained by this Court. Plaintiffs have no adequate

remedy at law for this injury.

75. On information and belief, Defendant acted with full knowledge of Plaintiffs' use

of, and statutory and common law rights to, the Three-Stripe Mark and without regard to the

likelihood of confusion of the public created by Defendant's activities.


trade on the goodwill associated with Plaintiffs' Three-Stripe Mark to the great and irreparable

injury of Plaintiffs.

11 . As a result of Defendant's acts, Plaintiffs have been damaged in an amount not as

yet determined or ascertainable. At a minimum, however, Plaintiffs are entitled to injunctive

relief, to an accounting ofDefendant's profits, to damages, and to costs. In light ofthe

deliberately fraudulent and malicious use of confusingly similar imitations of Plaintiffs' Three-

Stripe Mark, and the need to deter Defendant from similar conduct in the future, Plaintiffs

additionally are entitled to punitive damages.

NINTH CLAIM FOR RELIEF(Common Law Trade Dress Infringement and Unfair Competition)

18. Plaintiffs repeat and incorporate by reference the allegations in paragraphs

22 - THIRD AMENDED COMPLAINT

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PERKINS COIE LLP

I t20 NW Couch Street, 10'n FroorPoRrr AND. ORriGoN 97209-4128

(503) 727-2000(503) ',72',7 -2222

19. Defendant's acts constitute common law trade dress infringement and unfair

competition, and have created and will continue to create a likelihood of confusion to the

ineparable injury of Plaintiffs unless restrained by this Court. Plaintiffs have no adequate

remedy at law for this injury.

80. On information and belief, Defendant acted with full knowledge of Plaintiffs' use

of, and statutory and common law rights to, the SUPERSTAR Trade Dress and without regard to

the likelihood of confusion of the public created by Defendant's activities.

81. Defendant's actions demonstrate an intentional, willful, and malicious intent to

trade on the goodwill associated with Plaintiffs' SUPERSTAR Trade Dress to the great and

irreparable injury of Plaintiffs.

82. As a result of Defendant's acts, Plaintiffs have been damaged in an amount not as

yet determined or ascertainable. At a minimum, however, Plaintiffs are entitled to injunctive

reliei to an accounting ofDefendant's profits, to damages, and to costs. In light ofthe

deliberately fraudulent and malicious use of confusingly similar imitations of Plaintiffs'

SUPERSTAR Trade Dress, and the need to deter Defendant from similar conduct in the future,

Plaintiffs additionally are entitled to punitive damages.

TENTH CLAIMFORRELIEF(Unfair and Deceptive Trade Practices as to Three-Stripe Mark)


84. Defendant has been and is passing off its goods as those of adidas, causing a

Iikelihood of confusion or of misunderstanding as to the source, sponsorship, or approval of

Defendant's goods, causing a likelihood of confusion as to Defendant's affiliation, connection, or

association with another, and otherwise damaging the public. Defendant's conduct constitutes

unfair and deceptive acts or practices in the course of a business, trade or commerce in violation

of Oregon's Unlawful Trade Practices Act, O.R.S. $$ 646.605 to 646.656 (2005), and the unfair

and deceptive trade practices statutes of other states, including Colorado, Colo. Rev. Stat. Ann.


[2 | 184-0010/PA0621,+0 009]

PERKINS CoIE LLP1120 NW Couch Street. 1Oth Floor

PoRrr-A-\D, ORDG0N 9'I 2O9 -41 28(-503) 727-2000(5O3)'127 -2222

$$ 6-1-101 to 6-1-115 (West 1996 and Supp. 1998);Delaware, Del. Code Ann. t i t.6, $$ 253lto

2536 (1993 & Supp. 1998); Georgia, Ga. Code Ann. $$ l0-1-370 to 10-1-375 Q99D; Hawaii,

Haw. Rev. Stat. $$ 48lA-l to 48lA-5 (1993); I l l inois, 815 It l . Comp. Stat. Ann. 510/1 to 51017

(1993';; Maine, Me. Rev. Stat. Ann. tit. 10, gg l2ll to l2l6 (West 1996); Minnesota, Minn. Srat.

Ann. $ 325D.43 ro .48 (West 1995); Nebraska, Neb. Rev. Stat. $$ 87-301 to 87-306 (1995); New

Mexico, N.M. Stat. Ann. $$ 51-12-l to 57-12-22 (Michie 1995); New York, N.Y. Gen. Bus. L. $

349 (McKinney 1988); Ohio, Ohio Rev. Code Ann. gg 4165.01 to 4165.04 (West 1995); and

Oklahoma, Okla. Stat. Ann. tit. 78, $$ 51 ro 55 (Wesr 1995 &. Supp. 1998).

85. Defendant's unauthorized use of confusingly similar imitations of Plaintiffs'

Three-Stripe Mark has caused and is likely to cause substantial injury to the public and to

Plaintiffs, and Plaintiffs are entitled to injunctive relief and to recover damages, punitive

damages, costs and reasonable attorneys' fees.

ELEVENTH CLAIM FOR RELIEF(Unfair and Deceptive Trade Practices as to SUPERSTAR Trade Dress)

86. Plaintiffs repeat and incorporate byreference the allegations in paragraphs l-85.

87. Defendant has been and is passing off its goods as those of adidas, causing a

likelihood ofconfusion or ofmisunderstanding as to the source, sponsorship, or approval of

Defendant's goods, causing a likelihood ofconfusion as to Defendant's affiliation, connection, or

association with another, and otherwise damaging the public. Defendant's conduct constitutes

unfair and deceptive acts or practices in the course of a business, trade or commerce in violation

of Oregon's Unlawful Trade Practices Acr, O.R.S. $$ 646.605 to 646.656 (2005), and the unfair

and deceptive trade practices statutes of other states, including Colorado, Colo. Rev. Stat. Ann.

$$ 6-1-101 to 6-l- l 15 (West 1996 and Supp. 1998); Delaware, Del. Code Ann. t i t. 6, $$ 2531to

2536 (1993 & Supp. 1998); Georgia, Ga. Code Ann. $$ 10-1-370 to 10-1-375 O99D; Hawaii,

Haw. Rev. Stat. $S 481A-l to 481A-5 (1993); I l l inois, 815 Il l . Comp. Stat. Ann. 510/1 to 510i7

(1993); Maine, Me. Rev. Stat. Ann. tit. 10, gg l2ll to 1216 (West 1996); Minnesota, Minn. Stat.


[2r 184-0010/PA062140 009]

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PORTr.AN), ORLGO\ 97 209 - 41 28(s03) 727 2000(503) '72'7 -2222

Ann. $ 325D.43 to .48 (West 1995); Nebraska, Neb. Rev. Stat. $$ 87-301 to 87-306 (1995); New

Mexico, N.M. Stat. Ann. $$ 57-12-l to 57-12-22 (Michie 1995); New York, N.Y. Gen. Bus. L. $

349 (McKinney 1988); Ohio, Ohio Rev. Code Ann. gg 4165.0l to 4165.04 (West 1995); and

Oklahoma, Okla. Stat. Ann. tit.78, $$ 5l ro 55 (West 1995 e. Supp. 1998).

88. Defendant's unauthorized use of confusingly similar imitations of Plaintiffs'

SUPERSTAR Trade Dress has caused and is likely to cause substantial injury to the public and

to Plaintiffs, and Plaintiffs are entitled to injunctive relief and to recover damages, punitive

damages, costs and reasonable attorneys' fees.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray rhat:

1. Defendant and all of its agents, officers, employees, representatives, successors,

assigns, attomeys, and all other persons acting for, with, by, tbrough, or under authority from

Defendant, or in concert or participation with Defendant, and each of them, be enjoined

permanently, from:

a. using the Three-Stripe Mark or SUPERSTAR Trade Dress, or any other copy,

reproduction, or colorable imitation or simulation of Plaintiffs' Three-Stripe Mark

or SUPERSTAR Trade Dress on or in connection with Defendant's soods or

services;

using any trademark, service mark, name, logo, design or source designation of

any kind on or in connection with Defendant's goods or services that is a copy,

reproduction, colorable imitation, or simulation of, or confusingly similar to the

trademarks or trade dress of Plaintiffs;

using any trademark, trade dress, service mark, name, 1ogo, design or source

designation of any kind on or in connection with Defendant's goods or services

that is likely to cause confusion, mistake, deception, or public misunderstanding

that such goods or services are produced or provided by Plaintiffs, or are


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sponsored or authorized by Plaintiffs, or are in any way connected or related to

Plaintiffs:

d. using any trademark, trade dress, service mark, name, logo, design or source

designation of any kind on or in connection with Defendant's goods or services

that dilutes or is likely to dilute the distinctiveness of the trademarks, trade dress,

service marks, names, or logos of Plaintiffs; and

e. passing off, palming off, or assisting in passing off or palming off, Defendant's

goods or services as those of Plaintiffs, or otherwise continuing any and all acts of

unfair competition as alleged in this Third Amended Complaint;

2. Defendant be ordered to recall all products bearing the Three-Stripe Mark,

SUPERSTAR Trade Dress, or any other confusingly similar variation thereof, which have been

shipped by Defendant or under its authority, to any customer, including, but not limited to, any

wholesaler, distributor, retailer, consignor, or marketer, and also to deliver to each customer a

copy of this Courl's order as it relates to said injunctive relief against Defendant;

3. Defendant be ordered to deliver up for impoundment and for destruction all

footwear, bags, boxes, labels, tags, signs, packages, receptacles, advertising, sample books,

promotional material, stationery or other materials in the possession, custody, or under the

control ofDefendant that are found to adopt, to infringe, or to dilute any ofPlaintiffs' trademarks

or trade dress or that otherwise unfairly compete with Plaintiffs and their products and services;

4. Defendant be compelled to account to Plaintiffs for any and all profits derived by

Defendant from the sale or distribution of infringing goods as described in this Third Amended

Complaint;

5. Plaintiffs be awarded all damages caused by the acts forming the basis of this

Third Amended Complaint;

6. Based on Defendant's knowing and intentional use of confusingly similar

imitations of Plaintiffs' Three-Stripe Mark and SUPERSTAR Trade Dress, the damages award


[2 1 I 84-0010/P4062 140.009]

PERKINS COTE LLPI 120 NW Couch Street, l0'h Fioor

PORrL^ND. OREGON 97 209 -4128(5031'727 -2OO0(503) 727 -2222

be trebled and the award of Defendant's profits be enhanced as provided for by 15 U.S'C.

$ 1117(a);

7. Defendant be required to pay to Plaintiffs the costs and reasonable attorneys' fees

that Plaintiffs have and will incur in this action pursuant to 15 U.S.C. $ 1117(a) and the state

statutes cited in this Third Amended Complaint;

8. Based on Defendant's willful and deliberate infringement and dilution of

Plaintiffs' marks and trade dress, and to deter such conduct in the future, Plaintiffs be awarded

punitive damages; and

9. Plaintiffs have such other and further relief as the Court may deem just.

JURY TRIAL DEMAND

Plaintiffs respectfully demand a trial by jury on all claims and issues so triable.

DATED: August 21,2006

PERKINS COIE rrr

By /s/ Stephen M. FeldmanStephen M. Feldman, OSB No. 93267Thomas R. Johnson, OSB No. 01064Telephone: (503) 727 -2000

Attomeys for Plaintiffs

Jerre B. Swann, (admitted pro hac vice)William H. Brewster, (admittedpro hac vice)R. Charles Henn Jr., (admitted pro hac vice)KILPATRICK STOCKTON LLPSuite 28001100 Peachtree StreetAtlanta, GA 30309Telephone: (404) 815-6500Facsimile: (404) 815-6555

Of Counsel for Plaintiffs


[2] 184-0010/PAo62 r40.009]

PERKINS COIE LLPI 120 NW Couch Sfieet, 10h Ftoor

PoRrr-AND, OREGoN 91 209 -4128(503\ 72'l:2000(503\ 727 2222

Documents

Stephen M. Feldman, OSB No. 932611' …s.wsj.net/public/resources/documents/WSJ_3rd_Amended_No418.pdf · A copy of the Certificate of Registration for this ... (Brand Strategy, September