Complaint - A. Longo v. V. Longo & Futures Fins (CDCA 2020)

1 CODY R. LEJEUNE (CSB No.
249242)
[email protected]
2
LEJEUNE LAW, P.C.
3 2801 Camino Del Rio South, Suite 200A
San Diego, California 92108
4
Telephone: (985) 713-4964
5
Attorneys for Plaintiff
6
ANTHONY LONGO, individually and derivatively on
7 behalf of TODOS SANTOS SURF, INC.
8
9
10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12
13 ANTHONY LONGO, individually and CASE NO.:
derivatively on behalf of TODOS
14 SANTOS SURF, INC., VERIFIED SHAREHOLDER
15 DERIVATIVE COMPLAINT FOR
Plaintiff, DAMAGES AND DECLARATORY
16 RELIEF
17 v.
18 VINCENT LONGO, an individual;

DEMAND FOR JURY TRIAL
FUTURE FIN SYSTEMS PTY LTD, an
19 Australian entity; and DOES 1 through 20,
20 inclusive;
21
Defendants,
22
-and-
23
24 TODOS SANTOS SURF, INC., a
California Corporation,
25
Nominal Defendant
26
27
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1 Plaintiff Anthony Longo (“Plaintiff” or “Anthony”), by and through his undersigned
2 attorneys, submits this Verified Shareholder Derivative Complaint against the named
3 defendants. Plaintiff’s allegations on information and belief are based upon, among other
4 things, an investigation conducted by and under the supervision of Plaintiff’s legal counsel
5 which included, but was not limited to, a review of: (a) California corporate and U.S. Patent
6 and Trademark documents; (b) Australian corporate, patent and trademark documents; (c)
7 representations made by defendant Vincent Longo (“Vincent” or “Defendant”); and (d) a
8 review of the Australian website, marketing materials, and products that have been sold
9 worldwide by Australian defendant Future Fin Systems Pty, Ltd (“Future Australia”) on
10 their website.
11 NATURE OF THE ACTION
12 1. This is a shareholder derivative action brought for the benefit of nominal
13 defendant Todos Santos Surf, Inc. (“TSS” or “Nominal Defendant”), a California

14 corporation that licenses its exclusive group of well-known trademarks and key patents
15 related to the surf industry. TSS shares are held 50% each by Anthony and Vincent, who
16 are the only directors of TSS.
17 2. From the mid-1990s, Anthony created, designed and patented accessories
18 related to surfing. In addition to the patents, TSS created and holds certain trademarks
19 related to the surfing industry. As is alleged below, Defendant Vincent inserted himself
20 onto certain of those patents as an inventor, despite that Vincent did not, in fact, contribute
21 as an inventor.
22 3. As each trademark and patent was created, they were assigned to TSS, a
23 company that Vincent convinced Anthony was necessary to hold the intellectual property.
24 TSS was set up with Plaintiff Anthony and Defendant Vincent each owning 50% of the
25 corporation.
26 4. In 2002, Defendant Vincent, having assigned 100% of his right, title, and
1
27 VERIFIED SHAREHOLDER DERIVATIVE COMPLAINT FOR DAMAGES AND DECLARATORY RELIEF
28
1 interest in the herein trademarks and patents to Nominal Defendant TSS. Simultaneously,
2 without authorization, permission, or license from TSS, set up and began operating a highly
3 profitable business – Future Australia – using the exact same trademarks and patents he
4 previously assigned to TSS. In or around July 24, 2008, again without the knowledge or
5 consent of TSS, Defendants set up the website https://futuresfins.com.au/ using the
6 trademarks assigned to TSS and selling products that practiced the various TSS patents.
7 Defendant Vincent formed Future Australia without a vote of the TSS board, without
8 requesting permission from TSS, and without the knowledge or consent of Plaintiff
9 Anthony.
10 5. Recently, Plaintiff Anthony became aware of Future Australia. When he
11 questioned Vincent about the company, Vincent assured Anthony that they “both owned
12 the Australian company equally,” sales were minimal, and that Vincent would evenly
13 divide the Future Australia profits with Plaintiff Anthony. The truth was and is that Future
14 Australia sales were in the tens of millions of dollars, and Defendant Vincent was hiding
15 the profits by keeping them in various accounts. Further, Defendants arranged to have surf
16 products manufactured that bore the TSS-owned trademark and practiced the TSS-owned
17 patents. To date, Plaintiff is informed and believes that approximately $30 million in profits
18 remain in Australia.
19 6. Plaintiff Anthony, working with counsel, has now discovered that Defendant
20 Future Australia is 99% owned by Defendant Vincent, a resident of Huntington Beach,

21 California, and 1% owned by an Australian resident.
22 7. Defendants have infringed the trademarks and patents owned by TSS and have
23 profited approximately $30 million through the unlicensed sales of these products without
24 paying a penny to TSS.
25 8. In addition, Defendants have breached their fiduciary duties and duties of
26 loyalty to Plaintiff and the Nominal Defendant by, among other things, misappropriating
2
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1 funds and property belonging to Plaintiff and the Nominal Defendant to fund Future
2 Australia, all to the detriment of Plaintiff and Nominal Defendant. Defendants’
3 unauthorized infringement of the Futures Marks and patents and unauthorized use of the
4 Nominal Defendant’s funds and property also constitutes unfair competition, deceptive
5 trade practices and conversion, causing damage to Plaintiff and Nominal Defendant.
6 9. Plaintiff asserts derivative claims under federal law for violations of the
7 Lanham Act, for patent infringement, and under state law for breach of fiduciary duty, duty
8 of loyalty, unfair competition, unjust enrichment, conversion and an accounting. Plaintiff
9 also asserts direct claims for breach of fiduciary duty, duty of loyalty, conversion and
10 unjust enrichment.
11 THE PARTIES
12 10. Plaintiff Anthony Longo is, and at all times relevant to this complaint was, a
13 resident of Orange County, California.

14 11. Nominal Defendant Todos Santos Surf, Inc. is a California corporation with
15 its principal place of business located at 5452 McFadden Avenue, Huntington Beach, CA
16 92649.
17 12. Defendant Vincent Longo is, and at all times mentioned in this complaint was,
18 a resident of Orange County, California.

19 13. Defendant Future Fins System, Pty Ltd is an Australian entity with its
20 headquarters and principal place of business in Australia, however, its 99% owner is
21 Defendant Vincent Longo who resides in Orange County, California.
22
23 JURISDICTION AND VENUE
24 14. This Court has exclusive subject matter jurisdiction over the subject matter of
25 this action pursuant to 28 U.S.C. §§ 1331 and 1338(a) because the claim for patent
26 infringement arises under the laws of the United States, 35 U.S.C. § 271, et seq.
3
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1 15. This Court has original jurisdiction over the subject matter of this action
2 pursuant to 15 U.S.C. §1121 and 28 U.S.C. §1331 and §1338 because the claims stated
3 herein arise under the laws of the United States. This Court has jurisdiction over the related
4 state law claims pursuant to 28 U.S.C. §1367.
5 16. This Court has personal jurisdiction over Defendants because they reside in
6 this District and have a continuous, systematic and substantial presence in this District,
7 because they regularly conduct business or solicits business within this District, because
8 they have committed and continue to commit infringement in this District, including
9 without limitation by using infringing products and inducing consumers in this District to
10 use infringing products, by purposefully directing activities at residents of this District, and
11 by placing infringing products into the stream of commerce with the knowledge that the
12 infringing products would be sold in California and this District, which acts form a
13 substantial part of the events giving rise to Plaintiff’s claims.
14 17. Defendant Future Australia is 99% owned by Defendant Vincent, a resident
15 of Huntington Beach, California.

16 18. Venue is proper in this district pursuant to 28 U.S.C. § 1391 and 1400(b)
17 because Defendant Vincent resides in this District, and all Defendants have committed
18 violations, have a regular and established place of business in this District, and a substantial
19 part of the events giving rise to Plaintiff’s claims occurred in this District.
20 FACTUAL ALLEGATIONS
21 The Parties’ Relationship
22
23 19. Anthony and Vincent are brothers who formed TSS in 1999 to hold and
24 market patents and trademarks for various products for surfboards, including surf fins and
25 mounting systems related to surf fins.
26 20. The two 50% shareholders of TSS are Anthony and Vincent.
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1 21. Since its formation in November of 1999, TSS has patented the products and
2 trademarked the designs created by Anthony.

3 22. Anthony assigned all of his intellectual property rights, including, as
4 described in more detail below, the Futures trademarks and patents to TSS. Anthony and
5 Vincent – the only TSS shareholders – each own an equal 50% share of TSS.
6 23. TSS eventually licensed its intellectual property rights to Futures Fins LLC
7 (“Futures Fins”), a California limited liability company having its principal place of
8 business in Orange County, California.
9 Futures’ Famous Trademarks
10 24. Futures Fins is well-known for surf fin design and application. The products,
11 name brand and logo associated with Futures Fins have become popular and famous in the
12 United States and internationally.
13 25. The Futures Fins brand has been subjected to extensive marketing and
14 promotion of the marks (the “Futures Marks”), and the brand has enjoyed significant sales
15 of surfboard fins and accessories bearing the Futures Marks.
16 26. Due to the extensive use of the Futures Marks, the brand Futures Fins has built
17 up significant goodwill therein, and its branded merchandise has been praised and
18 recognized in the surf industry and through various media.
19 27. As a result of the longstanding, substantial and continuous use, the Futures
20 Fins’ branded products have long been immediately recognized by consumers and the trade
21 of surfing nationwide and worldwide.
22 28. Since June 2000, TSS has utilized and offered products bearing the Futures
23 Marks. As such, TSS has acquired broad common law rights in certain marks.
24 29. In addition, TSS has filed for, and received, several U.S. federal trademark
25 registrations for its Futures Fins branded surf fins and accessories. The registration filings
26 are identified in the paragraphs below.
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1 30. On or around August 29, 2005, TSS filed an application with the U.S. Patent
2 and Trademark Office (the “USPTO”) for registration of the mark “FUTURES” in
3 International Class 28 for Games and Sporting Goods. The application is assigned U.S.
4 Serial Number 78702559, and the mark issued on June 26, 2007 with Registration No.
5 3,254,933. The “FUTURES” mark is owned by TSS.
6 31. On or around December 5, 2013, TSS filed an application with the USPTO
7 for registration of the mark “F” in International Class 28 for Games and Sporting Goods.
8 The application is assigned U.S. Serial Number 86136470, and the mark issued on July 21,
9 2015 with Registration No. 4,778,045. The “F” mark is owned by TSS.
10 32. On or around April 14, 2014, TSS filed an application with the USPTO for
11 registration of the mark “RIDE NUMBER” in International Class 28 for Games and
12 Sporting Goods. The application is assigned U.S. Serial Number 86251977, and the mark
13 issued on April 7, 2015 with Registration No. 4,718,310. The “RIDE NUMBER” mark is
14 owned by TSS.
15 33. On or around May 16, 2014, TSS filed an application with the USPTO for
16 registration of the mark “TECHFLEX” in International Class 28 for Games and Sporting
17 Goods. The application is assigned U.S. Serial Number 86284073, and the mark issued on
18 May 19, 2015 with Registration No. 4,740,688. The “TECHFLEX” mark is owned by TSS.
19 34. On or around May 16, 2014, TSS filed an application with the USPTO for
20 registration of the mark “BLACKSTIX” in International Class 28 for Games and Sporting
22 MAY 19, 2015 with Registration No. 4,740,689. The “BLACKSTIX” mark is owned by
23 TSS.
24 35. On or around February 20, 2018, TSS filed an application with the USPTO
25 for registration of the mark “FUTURES.” in International Class 18 for Bags and Leather
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1 December 24, 2019 with Registration No. 5,944,851. The “FUTURES.” mark is owned by
2 TSS.
3 36. True and correct copies of the Certificates of Registration for each of the
4 above-listed Futures Marks are attached hereto as Exhibit 1.

5 37. The Futures Marks associated with Futures surfboard fins and accessories
6 have acquired a strong secondary meaning and are strong trademarks. Futures Marks and
7 associated products have become famous and are known and recognized across the United
8 States and the world. See, e.g., https://www.surfer.com/features/how-to-choose-the-right-
9 fins/; https://www.surfertoday.com/surfing/futures-or-fcs-the-surfboard-fin-dilemma.
10
11 Defendants’ Scheme to Misappropriate Plaintiff’s Funds
12 38. On information and belief, Plaintiff alleges that starting at least as early as
13 2002, Vincent arranged – without Plaintiff’s knowledge or authorization – for the diversion
14 of the Futures Marks to himself, whereby funds produced from the distribution and sale of
15 Futures branded Products went directly to Vincent and not to TSS or Anthony. Vincent’s
16 unauthorized diversion of the Futures Marks caused TSS to suffer the loss of millions of
17 dollars in money and assets which could have been used to pay TSS for the licensing of
18 the Futures Marks.
19 39. In November of 2002, without the knowledge or authorization from Anthony
20 or TSS, Vincent formed Defendant Future Australia, which he touted as an Australian

21 distributor of products bearing the Futures Marks.
22 40. Vincent’s formation of Future Australia capitalized on the famous Futures
23 Marks to the material detriment of Anthony and the Nominal Defendant TSS.
24 41. Though Future Australia products were manufactured using Futures Marks
25 the profits from the sales of Future Australia products were not returned to TSS; instead
26 the funds were routed to Defendants without Plaintiff’s knowledge.
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1 42. Future Australia, through the unauthorized advertisement of products bearing
2 the Futures Marks on its purported website and via the unauthorized manufacture, sale, use
3 and distribution of the products bearing the Futures Marks, infringed the patents and
4 trademarks owned by Anthony and Nominal Defendant TSS causing significant damage to
5 Plaintiff.
6 43. When Anthony inquired with Defendants about Future Australia and the lack
7 of revenue received from the sale of the products bearing the Futures Marks, Defendant
8 Vincent stated that Future Australia was simply an independent distributor of products
9 bearing the Futures Marks. Defendants never disclosed that Future Australia was owned
10 99% by Defendant Vincent.
11 44. Defendants never paid consideration to Plaintiff or Nominal Defendant for the
12 unauthorized use or interest of the Futures Marks by this independent distributor entity,
13 and this activity of Future Australia was never approved or licensed by TSS.
14
15 Defendants’ Unauthorized Exploitation of Trademarks
via an Unauthorized Website
16
17 45. Defendants also saw an opportunity to further capitalize on the success of the
18 Futures Marks by exploiting their popularity by selling products bearing the Futures Marks
19 on an unauthorized website.
20 46. Rather than expanding the popularity of the Futures Marks for the benefit of
21 TSS and Anthony, however, Defendants intentionally left Anthony in the dark and instead
22 elected to utilize the Futures Marks for their own benefit, to the detriment of Plaintiff and
23 TSS.
24 47. Specifically, Defendants formed Future Australia without Plaintiff’s
25 knowledge, including forming and operating the website www.futuresfins.com.au (the

26 “Future Australia Website”), and also manufactured, distributed and sold products
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1 produced under the Futures Marks worldwide.
2 48. The unauthorized Future Australia Website is virtually indistinguishable from
3 the licensed U.S. website, as shown by a side-by-side comparison:

4 Future Australia Futures Fins
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7
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16 49. Defendants continued, without Plaintiff’s knowledge or consent, to market
17 and advertise the Futures Marks on the Future Australia Website.
18 50. Neither Plaintiff nor TSS have received any royalties or compensation as a
19 result of Future Australia’s willful infringement of the Futures Marks by using the marks
20 on their website and selling products with the Futures Marks.
21 51. Defendants did not advise Plaintiff or TSS of their plan to manufacture,
22 distribute and sell products in Australia bearing the Futures Marks.
23 52. Defendants did not obtain a license or the necessary consent for use of the
24 Futures Marks from Plaintiff or TSS in connection with the manufacture, distribution or
25 sale of the products bearing the Futures Marks.
26
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1 53. Upon information and belief, Future Australia, at the direction of Defendants,
2 is currently operating the infringing website online and selling products online.
3 54. Upon information and belief, Defendants operate Future Australia and
4 manufacture, distribute and sell products bearing the Futures Marks in interstate commerce
5 without Plaintiff’s knowledge.
6 55. Defendants have not reported their earnings from the manufacture,
7 distribution and sale of products bearing the Futures Marks to Plaintiff, TSS, or, upon
8 information and belief, the taxing authorities of the United States of America.
9 56. Defendants have not paid a license fee or royalty to TSS in connection with
10 its infringing activities.

11 57. By using the Futures Marks in the manufacture, distribution and sale of
12 products without permission, Defendants are improperly benefitting from the Futures Fins’
13 brand name and associated goodwill, without compensating the owner of the Futures
14 Marks.
15 58. The use of the Futures Marks by Defendants is likely to cause confusion and
16 is causing confusion amongst consumers concerning the true origin, sponsorship or

17 approval of the products.
18 59. TSS has been damaged by the improper and unauthorized use of the Futures
19 Marks by Defendants because, among other things, TSS has not received any compensation
20 for the use of its Futures Marks, and the Futures Marks have been blurred or tarnished by
21 the distribution of unauthorized products.
22 60. Examples of Defendants’ unauthorized use of the Futures Marks on their
23 website, https://futuresfins.com.au, can be seen in the chart below:

24
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1
2 Futures Marks Defendants’ Infringement
3 “FUTURES”
Registration No. 3,254,933
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1
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Registration No. 4,778,045
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19
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24
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1 “RIDE NUMBER”
2 Registration No.
3 4,718,310
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7
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11
12
13
14
15
16
17
18
19
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1 “TECHFLEX”
2 Registration No.
3 4,740,688
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5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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1 “BLACKSTIX”
2 Registration No.
3 4,740,689
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1 “FUTURES.”
2 Registration No.
3 5,944,851
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1 Defendants’ Infringement of Futures’ Patents1
2 61. In addition to the above misappropriations and infringement, Defendants have
3 also infringed on the Futures Patents.

4 62. On October 11, 2016, the USPTO duly and lawfully issued United States
5 Patent No. 9,463,588, entitled “Surf Fin Including Injection Molded Pre-Impregnated
6 Composite Fiber Matrix Inserts” (“the ‘588 Patent”). TSS is the owner of the ‘588 Patent,
7 a copy of which is attached hereto as Exhibit 2 and made part of this Complaint.
8 63. Defendants are and have been making, using, selling, offering for sale,
9 importing and/or exporting products that infringe the ‘588 Patent, including without
10 limitation their entire line of surf fins, including but not limited to fins with the following
11 setups: Thruster, 5 Fin, Quad, Quad Rear, Single, Twin, 2 + 1, Big Wave, and SUP. The
12 entire line of infringing surf fins can be found here -
13 https://futuresfins.com.au/collections/surfboard-fins, (the “Accused Products”).

14 64. Defendants also actively induce infringement of the ‘588 Patent by its
15 customers.
16 65. Upon information and belief, Defendants have been aware of the ‘588 Patent
17 since it issued on October 11, 2016.

18
19 DERIVATIVE CLAIMS
20 66. Plaintiff, as a 50% shareholder in the Nominal Defendant, brings the
21 following claims derivatively on behalf of the Nominal Defendant TSS.

22
23
24
1
25 Nominal Defendant also owns U.S. Patent Nos. 8,985,351 (titled, “Display Device”); 9,540,080 (titled
Method of Forming a Thermoplastic Fiber Composite Fin); and 9,566,729 (titled, “Injection Molded
26 Surfboard Insert Having Pre-Impregnated Composite Fiber Matrix Structure”).
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1 67. During all of the transactions complained of herein, Plaintiff was, and
2 remains, a 50% shareholder of the Nominal Defendant TSS.

3
4 Demand Would Be Futile
5 68. Plaintiff did not make a demand upon the TSS Board of Directors before filing
6 this Complaint.
7 69. Plaintiff alleges the only other TSS director was and is Defendant Vincent
8 Longo and that Vincent is also the other 50% shareholder of TSS. The systematic failure
9 presented by the misconduct and breaches of fiduciary duty on the part of Vincent as
10 alleged in this complaint create a non-disinterested director.
11 70. Vincent took it upon himself to enlist legal representation outside the
12 knowledge of TSS to gain the trademark registrations in Australia under his controlled
13 third-party entity, Future Australia. See Exhibit 3.
14 71. The alleged wrongful actions taken by Vincent involved not only his
15 intentional misconduct, but his knowing violation of the law.

16 72. The application for trademark registrations by Defendant Future Australia as
17 seen in Exhibit 3 was filed at the request of Defendant Vincent and not at the request of the
18 TSS Board of Directors or by Plaintiff Anthony.
19 73. Vincent never advised or presented the question of licensing a trademark by
20 Future Australia to the TSS Board of Directors or its other 50% shareholder Plaintiff
21 Anthony. Plaintiff Anthony as a Director of TSS never voted on, discussed, or
22 contemplated the use by Future Australia of the intellectual property held by TSS.
23 74. Defendant Vincent, without the authorization from TSS, continues to utilize
24 Future Australia to capture the profits from the intellectual property held by TSS.
25 75. TSS does not receive royalties or payment in any form from the Defendants
26 for the use of the intellectual property held by TSS.

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1 76. Based on Defendant Vincent’s acts and omissions in direct violation of his
2 fiduciary duties of care, good faith, honesty, and loyalty, a pre-demand on TSS’ Board of
3 Directors to bring the claims asserted in this action is excused as a futile and useless act.
4
5 FIRST CAUSE OF ACTION
TRADEMARK INFRINGEMENT
6 Lanham Act § 43(a), 15 U.S.C. §1114
7 against Defendants Vincent Longo and Future Australia
(Derivatively On Behalf of Nominal Defendant)
8
9 77. Plaintiff repeats and realleges the allegations in the paragraphs above as if
10 fully set forth herein.

11 78. The acts of Defendants described above constitute trademark infringement in
12 violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114.

13 79. Defendants’ use in commerce, without Plaintiff’s or TSS’s consent, of the
14 Futures Marks owned by the Nominal Defendant has caused and is likely to cause
15 confusion with respect to the source and origin of Defendants’ products and business and
16 falsely creates the impression and is likely to cause confusion or mistake and to deceive
17 consumers as to the affiliation, connection, or association of Plaintiff/Nominal Defendants
18 with Defendants and/or the marketing or sale of its products.
19 80. Defendants have used and continue to use the Futures Marks with the
20 knowledge that they are likely to cause confusion, mistake or deceive.

21 81. As a direct and proximate result of Defendants’ willful acts, Plaintiff and the
22 Nominal Defendant are suffering irreparable harm and damage and continues to suffer
23 and/or is likely to suffer damage to its business reputation and goodwill. Defendants will
24 continue, unless restrained, to use the Futures Marks and will cause irreparable damage.
25 Plaintiff has no adequate remedy at law. Plaintiff is entitled to an injunction restraining
26 Defendants from engaging in further acts of trademark infringement. The harm will
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1 continue and increase until Defendants are permanently enjoined from their unlawful
2 conduct.
3 82. Plaintiff is further entitled to recover from Defendants the actual damages that
4 they sustained or are likely to sustain as a result of Defendants’ wrongful acts. Plaintiff is
5 presently unable to ascertain the full extent of the monetary damages suffered or are likely
6 to suffer by reason of Defendants’ acts of trademark infringement.
7 83. Plaintiff is further entitled to recover from Defendants the gains, profits, and
8 advantages that Defendants have obtained as a result of their wrongful acts. Plaintiff is
9 presently unable to ascertain the full extent of the gains, profits, and advantages that
10 Defendants have realized by reason of its acts of trademark infringement.
11 84. Because of the willful nature of Defendants’ wrongful acts, Plaintiff is entitled
12 to an award of damages, including treble damages and attorneys’ fees, under 15 U.S.C. §
13 1117.
14
15 SECOND CAUSE OF ACTION
FALSE DESIGNATION OF ORIGIN
16 Lanham Act § 43(a)(1)(A), 15 U.S.C. §1125(a)(1)(A)
18
85. Plaintiff repeats and realleges the allegations in the paragraphs above as if
19
fully set forth herein.
20
86. Defendants’ actions as alleged herein constitute a false designation of origin
21
in violation of 15 U.S.C. § 1125(a).
22
87. Defendants’ use of the Futures Marks in commerce constitutes false
23
designations of origin, as it is likely to cause confusion, or to cause mistake, or to deceive
24
consumers as to an affiliation, connection, or association between Defendants and the
25
Plaintiff or Nominal Defendant, or as to the origin, sponsorship, or approval of Defendants’
26
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1 goods or services by Plaintiff.
2 88. As a direct and proximate result of Defendants’ willful acts, Plaintiff and
4 and/or is likely to suffer damage to its business reputation and goodwill. Defendants will
5 continue, unless restrained, to use the Futures Marks and will cause irreparable damage.
6 Plaintiff has no adequate remedy at law. Plaintiff is entitled to an injunction restraining
7 Defendants from engaging in further acts of false designation of origin. Such harm will
9 conduct.
11 they sustained and/or are likely to sustain as a result of Defendants’ wrongful acts. Plaintiff
12 is presently unable to ascertain the full extent of the monetary damages suffered or likely
13 to suffer by reason of Defendants’ acts of false designation of origin.
17 Defendants have realized by reason of its acts of false designation of origin.
19 to an award of damages, including treble damages and attorneys’ fees, under 15 U.S.C. §
20 1117.
21
22 THIRD CAUSE OF ACTION
FEDERAL TRADEMARK DILUTION
23 Lanham Act § 43(a)(1)(C), 15 U.S.C. §1125(a)(1)(C)
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2 93. The Futures Marks are inherently distinctive and have acquired distinction
3 from other marks through long continuous and exclusive use.

4 94. The Futures Marks are famous and distinctive under 15 U.S.C. §1125(c) and
5 1127, as the Futures name is recognized by the surf community and consumers nationwide
6 and internationally and serves as an iconic symbol of high-end surf equipment.
7 95. Defendants’ unlawful activities described in this complaint constitute
8 unauthorized use in interstate commerce of the Futures Marks. Defendants are using the
9 Futures Marks with the willful intent to trade upon the world-renowned reputation of the
10 Futures brand and to cause dilution to the Futures Marks. Defendants’ unlawful activities
11 were conducted with full recognition of Plaintiff’s and Nominal Defendant’s use of the
12 Futures Marks and commenced after such trademarks became famous. Such activities are
13 likely to dilute, have diluted and will continue to dilute or be likely to dilute, the distinctive
14 quality of the Futures Marks by lessening their capacity to identify and distinguish Futures
15 products and by blurring and tarnishing such marks to damage and harm Plaintiff and
16 Nominal Defendant, their customers and the public, in violation of 15 U.S.C. §1125 (c)(1).
17 96. As a direct and proximate result of Defendants’ willful acts, Plaintiff and
19 and/or is likely to suffer dilution of the distinctive quality and blurring and tarnishing of
20 the Futures Marks. Defendants will continue, unless restrained, to use the Futures Marks
21 and will cause irreparable damage to Plaintiff and Nominal Defendant. Plaintiff has no
22 adequate remedy at law. Plaintiff is entitled to an injunction restraining Defendants from
23 engaging in further acts of dilution. The harm will continue and increase until Defendants
24 are permanently enjoined from their unlawful conduct.
26 they sustained and/or are likely to sustain as a result of Defendants’ wrongful acts. Plaintiff
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1 is presently unable to ascertain the full extent of the monetary damages suffered and/or is
2 likely to suffer by reason of Defendants’ acts of dilution.
6 Defendants have realized by reason of its acts of dilution.
7 99. Defendants committed the acts alleged above: (a) with previous knowledge of
8 Plaintiff/Nominal Defendant’s prior use of the Futures Marks; (b) with the willful intent to
9 trade on the goodwill and reputation of the Futures Marks; and/or (c) with the willful intent
10 to cause dilution of the Futures Marks.
12 to an award of damages, including treble damages and attorneys’ fees, under 15 U.S.C.
13 §1117.
14
15 FOURTH CAUSE OF ACTION
FALSE ADVERTISING
16 Lanham Act § 43(a)(1)(B), 15 U.S.C. §1125(a)(1)(B)
18
19
20
102. Defendants, in connection with their commercial advertising and promotion,
21
have intentionally misrepresented and continue to misrepresent the nature, characteristics,
22
and qualities of their goods and services.
23
103. As a consequence of Defendants’ intentional misconduct, Plaintiff is entitled
24
to relief as set forth below.
25
26
25
28
1 FIFTH CAUSE OF ACTION
PATENT INFRINGEMENT
2 35 U.S.C. §271
4
5
6
105. Defendants have infringed and continue to infringe, contribute to
7
infringement, and/or induces infringement of the ‘588 Patent, either literally or under the
8
doctrine of equivalents. Defendants’ infringing activities in the United States and this
9
District include, among other things, making, using, importing, exporting, selling, and/or
10
offering to sell products, including, but not limited to the Accused Products, which infringe
11
at least claims 1 and 18 of the ‘588 Patent. A claim chart showing infringement of Claim
12
1 by Future Australia is attached hereto as Exhibit 4 and is incorporated herein. This
13
infringement claim chart is based on Plaintiff’s current understanding of the Accused
14
Products, which only considers publicly available information. The chart does not set forth
15
all of Plaintiff’s infringement theories or Accused Products – the Accused Products
16
embody other claims set forth in the ‘588 Patent.
17
106. Plaintiff reserves the right to amend or supplement its infringement theories
18
upon more information becoming available through formal discovery and/or this Court
19
completing its claim construction proceedings. Pursuant to the Local Rules of this Court,
20
Plaintiff will serve a Disclosure of Asserted Claims and Infringement Contentions (that
21
may alter and/or supplement the infringement chart submitted herewith).
22
107. Defendants, and/or those acting in concert with Defendants, contributed to the
23
infringement of the ‘588 Patent, by having its direct and indirect customers, offer for sale,
24
use, and/or import into the United States and this District, and placing into the stream of
25
commerce, the Accused Products, and having the specific intention to induce those direct
26
26
28
1 and indirect customers to infringe at least claim 1 of the ‘588 Patent by instructing and
2 promoting the use of the Accused Products.
3 108. The Accused Products include the technology disclosed in the ‘588 Patent,
4 and thus infringe the ‘588 Patent, and have no substantially non-infringing uses.
5 109. Defendants, and/or those acting in concert with Defendants, have intentionally
6 induced infringement of the ‘588 Patent, by having its direct and indirect customers sell,
7 offer for sale, use, and/or import into the United States and this Judicial District, and
8 placing into the stream of commerce, the Accused Products.
9 110. Upon information and belief, Defendants have generated significant sales of
10 products incorporating the technology from the ‘588 Patent, exposing Defendants to
11 significant liability for its infringement of the ‘588 Patent.
12 111. Upon information and belief, unless enjoined, Defendants, and/or others
13 acting on behalf of Defendants, will continue their infringing acts, thereby causing
14 irreparable harm to Plaintiff and Nominal Defendants for which there is no adequate
15 remedy at law.
16 112. As a result of Defendants’ infringement of the ‘588 Patent, Plaintiff and
17 Nominal Defendant have suffered and will continue to suffer harm and injury, including
18 monetary damages in an amount to be determined at trial, and is entitled to recovery of all
19 said damages.
20 113. Plaintiff is informed and believe, and on that basis alleges, that the
21 infringement by Defendants is willful, wanton, and deliberate, without license and with full
22 knowledge of the ‘588 Patent, thereby making this an exceptional case entitling Plaintiff
23 to attorneys’ fees and enhanced damages.
24
25
26
27
28
1 SIXTH CAUSE OF ACTION
BREACH OF THE DUTY OF LOYALTY
2 against Defendant Vincent Longo
3 (Derivatively On Behalf of Nominal Defendant)

6 115. Defendant Vincent is a 50% co-owner of Nominal Defendant TSS and a
7 Manager of Futures Fins.

8 116. As a Director of TSS and Manager of Futures Fins, Defendant Vincent owes
9 a duty of loyalty to TSS and Futures Fins.

10 117. Defendants have engaged in a variety of self-dealing, including without
11 limitation: (i) intentionally misappropriating revenues received from Futures Fins for their
12 own benefit; (ii) intentionally misappropriating intellectual property rights of TSS and
13 Futures Fins for Future Australia for their own benefit; (iii) assisting in the concealment of
14 such misappropriation; and (iv) assisting in transactions for the benefit of Future Australia
15 using Futures Fins’ funds.
16 118. Defendants’ breaches of their duty of loyalty have damaged Plaintiff and TSS
17 in an amount to be determined at trial.

18
19 SEVENTH CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY

24 120. Defendant Vincent is a 50% co-owner of Nominal Defendant TSS.
25 121. As a Director of TSS, Vincent owes fiduciary duties to TSS.
26 122. Defendant has engaged in extensive self-dealing, including without limitation:

28
28
1 (i) misappropriating TSS revenues for his own benefit; (ii) intentionally misappropriating
2 intellectual property rights of TSS for his own benefit; (iii) assisting in the concealment of
3 the misappropriation; and (iv) assisting in transactions for the benefit of Future Australia,
4 to the detriment of Plaintiff.
5 123. Defendant’s breaches of his fiduciary duties have damaged Plaintiff in an
6 amount to be determined at trial.

7
8 EIGHTH CAUSE OF ACTION
UNFAIR COMPETITION
9 Cal. Bus. & Prof. Code §17200 and the Common Law
11
12
13
125. Cal. Bus. & Prof. Code §17200, et seq., states that unfair competition shall
14
mean and include any “unlawful, unfair or fraudulent business act or practice.”
15
126. Defendants’ actions as alleged herein constitute unlawful business acts and/or
16
practices under Cal. Bus. & Prof. Code §17200, et seq.
17
127. Defendants’ conduct constitutes unfair business acts and/or practices because
18
Defendants have unfairly used and infringed the Futures Marks and Patents violating the
19
Lanham Act and 35 U.S.C. §271, respectively, while engaging in a business practice.
20
128. Defendants’ conduct constitutes fraudulent business acts and practices
21
because Defendants have deceptively and unfairly marketing, advertised, sold, and/or
22
distributed products under trademarks that are confusingly similar to the Futures Marks.
23
129. Defendants’ conduct constitutes fraudulent business acts and practices
24
because Defendants have deceptively and unfairly marketing, advertised, sold, and/or
25
distributed products that infringe the Futures Patents.
26
29
28
1 130. As a direct and proximate result of Defendants’ wrongful acts, Plaintiff and
2 Nominal Defendant are likely to suffer, and/or have suffered, and are likely to continue to
3 suffer damage to their business reputation and goodwill. Defendants will continue, unless
4 restrained, to use the Futures Marks and will cause irreparable damage to Plaintiff and
5 Nominal Defendant. Plaintiff has no adequate remedy at law. Plaintiff is entitled to an
6 injunction restraining Defendants from engaging in further acts of dilution. The harm will
8 conduct.
10 they sustained or are likely to sustain as a result of Defendants’ wrongful acts. Plaintiff is
11 presently unable to ascertain the full extent of the monetary damages suffered or is likely
12 to suffer by reason of Defendants’ acts of unfair competition.
16 Defendants have realized by reason of its acts of unfair competition.
18 to an award of punitive damages.

19
20 NINTH CAUSE OF ACTION
UNJUST ENRICHMENT

25 135. Defendants intentionally misappropriated cash, revenue and the goodwill of
26 the Futures Marks by, among other things: (i) misappropriating TSS revenues for their own
30
28
1 benefit; (ii) intentionally misappropriating intellectual property rights of TSS to Future
2 Australia for their own benefit; (iii) assisting in the concealment of the misappropriation;
3 and (iv) assisting in transactions for the benefit of Future Australia.
4 136. As a result of Defendants’ misappropriation of Plaintiff’s and Nominal
5 Defendant’s resources, Defendants were enriched unjustly.

6 137. Plaintiff and Nominal Defendant were harmed by Defendants’
7 misappropriation.
8 138. Defendants’ retention of monies gained through its deceptive business
9 practices, infringements, and otherwise would serve to unjustly enrich Defendants and
10 would be contrary to the interests of justice.
11 139. Defendants have thus been unjustly enriched and have damaged Plaintiff and
12 Nominal Defendant in an amount to be determined at trial.

13
14 TENTH CAUSE OF ACTION
CONVERSION

19 141. Defendants intentionally misappropriated cash, revenue and the goodwill of
20 TSS and its Futures Marks by, among other things: (i) misappropriating TSS revenues for
21 their own benefit; (ii) intentionally misappropriating intellectual property rights of TSS for
22 their own benefit; (iii) assisting in the concealment of such misappropriation; and (iv)
23 assisting in transactions for the benefit of Future Australia.
24 142. Defendants’ willful misappropriation of Plaintiff’s and Nominal Defendant’s
25 revenue and assets constitutes conversion.

26 143. Defendants’ conversion has damaged Plaintiff and Nominal Defendant in an
31
28
1 amount to be determined at trial, including punitive damages.
2
3 ELEVENTH CAUSE OF ACTION
ACCOUNTING

8 145. As co-owner of Nominal Defendant TSS, Plaintiff is entitled to inspect all of
9 the books and records of Nominal Defendant and Defendants, and Defendants are required
10 to permit the inspection, including the books and records maintained by Defendants’ and
11 Nominal Defendant’s accountant.
12 146. Defendants have caused Nominal Defendant to fail to meet its obligations and
13 have refused to provide Plaintiff with the compete and unadulterated books and records.
14 147. Plaintiff does not have an adequate remedy at law.
15 148. As a result, Plaintiff is entitled to access Defendants’ and Nominal
16 Defendant’s complete and unadulterated books and records.

17
18 DIRECT CLAIMS
19 149. Plaintiff brings the following claims on behalf of himself individually.
20
21 TWELFTH CAUSE OF ACTION
BREACH OF THE DUTY OF LOYALTY
23
24
25
151. Plaintiff Anthony is a 50% shareholder of TSS.
26
32
28
1 152. Defendant Vincent is a 50% shareholder of TSS.
2 153. As a Director of TSS, Defendant Vincent owes a duty of loyalty to Plaintiff.
3 154. Defendant has engaged in a variety of self-dealing, including intentionally and
4 wrongfully impeding the flow of TSS distributions from Plaintiff and infringing the Futures
5 Marks and Patents.
6 155. Defendant’s breaches of his duty of loyalty have damaged Plaintiff in an

8
9 THIRTEENTH CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY
13 157. Plaintiff Anthony is a 50% shareholder of TSS.
14 158. Defendant Vincent is a 50% shareholder of TSS.
15 159. As a Director of TSS, Defendant Vincent owes a fiduciary duty to Plaintiff.
16 160. Defendant has engaged in a variety of self-dealing, including intentionally and
17 wrongfully impeding the flow of TSS distributions from Plaintiff and infringing the Futures
18 Marks and Patents.
19 161. Defendant’s breaches of his fiduciary duties have damaged Plaintiff in an
21
22 FOURTEENTH CAUSE OF ACTION
23 CONVERSION
against Defendants Vincent Longo and Future Australia
24
25
26
33
28
1 163. Defendants intentionally misappropriated cash and revenues by, among other
2 things, intentionally impeding the flow of TSS distributions from Plaintiff.

3 164. Defendants’ willful misappropriation of Plaintiff’s revenue and assets
4 constitutes conversion.
5 165. Defendants’ conversion has damaged Plaintiff in an amount to be determined
6 at trial.
7
8 FIFTEENTH CAUSE OF ACTION
UNJUST ENRICHMENT
10
11
12
167. Defendants intentionally misappropriated cash and revenues by, among other
13
things, intentionally impeding the flow of TSS distributions from Plaintiff.
14
168. As a result of Defendants’ misappropriation of Plaintiff’s resources,
15
Defendants were enriched unjustly.
16
169. Plaintiff was harmed by Defendants’ misappropriation.
17
170. Defendants’ retention of monies gained through its deceptive business
18
practices, infringements, and otherwise would serve to unjustly enrich Defendants and
19
would be contrary to the interests of justice.
20
171. Defendants have thus been unjustly enriched and have damaged Plaintiff in
21
an amount to be determined at trial.
22
23
PRAYER FOR RELIEF
24
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them,
25
as follows:
26
34
28
1 1. For damages in an amount to be proven at trial for trademark infringement
2 under 15 U.S.C. §1114/Lanham Act §43(a);

3 2. For damages in an amount to be proven at trial for false designation of origin
4 under 15 U.S.C. §1125(a)/Lanham Act §43(a);

5 3. For damages in an amount to be proven at trial for dilution under 15 U.S.C.
6 §1125(c)/Lanham Act §43(a);

7 4. For disgorgement of Defendants’ profits under 15 U.S.C. §1117(a);
8 5. For injunctive relief barring Defendants and their agents, employees,
9 subsidiaries, licensees, successors, and assigns, and all other persons in active concert,
10 privity or participation with it, from doing, abiding, causing or abetting any direct or
11 indirect use of the Futures Marks, or any confusingly similar trademarks in any way,
12 including in advertising, promoting, or selling Defendants’ products and services, which
13 infringe upon Plaintiff’s and Nominal Defendant’s rights or compete unfairly with
14 Plaintiff/Nominal Defendant;
15 6. For all damages, costs and attorneys’ fees under 15 15 U.S.C. §1117(a);
16 7. Judgment that Defendants have directly infringed, and induced others to
17 infringe, the ‘588 Patent, either literally and/or under the doctrine of equivalents;
18 8. A permanent injunction under 35 U.S.C. § 283 enjoining Defendants, their
19 officers, directors, agents, servants, resellers, retailers, and employees, and those persons
20 acting in concert or participation with them, from infringing the ‘588 Patent in violation of
21 35 U.S.C. § 271;
22 9. An award to Plaintiff of his lost profits and/or a reasonably royalty for
23 Defendants’ sales of the Accused Products;

24 10. Judgment awarding Plaintiff all of his costs, including his attorneys’ fees,
25 incurred in prosecuting this action, including, without limitation, pursuant to 35 U.S.C. §

26 285 and other applicable law;
35
28
1 11. An award to Plaintiff for pre-judgment and post-judgment interest;
2 12. For an order from the Court requiring that Defendants provide complete
3 accountings and for equitable relief, including that Defendants disgorge and return or pay
4 their ill-gotten gains obtained from the illegal transactions entered into or pay restitution,
5 including the amount of monies that should have been paid if Defendants complied with
6 their legal obligations, or as equity requires;
7 13. For an order from the Court that an asset free or constructive trust be imposed
8 over all monies and profits in Defendants’ possession which rightfully belong to
9 Plaintiff/Nominal Defendant;
10 14. For damages in an amount to be proven at trial for unjust enrichment;
11 15. For such other and further relief as the Court may deem just and equitable.
12
13 DEMAND FOR JURY TRIAL
14 Plaintiff respectfully demands a trial by jury in this action.
15
16 Respectfully submitted,
LEJEUNE LAW, P.C.
17
Dated: April 29, 2020 By: /s/ Cody R. LeJeune
18
Cody R. LeJeune
19 2801 Camino Del Rio South, Suite 200A
San Diego, California 92108
20
Telephone: (985) 713-4964
21
22
23 Attorneys for Plaintiff
ANTHONY LONGO, individually and
24
derivatively on behalf of TODOS
25 SANTOS SURF, INC.
26
36
28

Complaint - A. Longo v. V. Longo & Futures Fins (CDCA 2020)

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Complaint - A. Longo v. V. Longo & Futures Fins (CDCA 2020)

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1 CODY R. LEJEUNE (CSB No.

11 CENTRAL DISTRICT OF CALIFORNIA

18 VINCENT LONGO, an individual;

12 1. This is a shareholder derivative action brought for the benefit of nominal

13 defendant Todos Santos Surf, Inc. (“TSS” or “Nominal Defendant”), a California

20 Future Australia is 99% owned by Defendant Vincent, a resident of Huntington Beach,

13 resident of Orange County, California.

18 a resident of Orange County, California.

15 of Huntington Beach, California.

2 trademarked the designs created by Anthony.

4 above-listed Futures Marks are attached hereto as Exhibit 1.

20 or TSS, Vincent formed Defendant Future Australia, which he touted as an Australian

25 knowledge, including forming and operating the website www.futuresfins.com.au (the

3 the licensed U.S. website, as shown by a side-by-side comparison:

10 its infringing activities.

16 is causing confusion amongst consumers concerning the true origin, sponsorship or

23 website, https://futuresfins.com.au, can be seen in the chart below:

2 61. In addition to the above misappropriations and infringement, Defendants have

3 also infringed on the Futures Patents.

13 https://futuresfins.com.au/collections/surfboard-fins, (the “Accused Products”).

17 since it issued on October 11, 2016.

20 66. Plaintiff, as a 50% shareholder in the Nominal Defendant, brings the

21 following claims derivatively on behalf of the Nominal Defendant TSS.

2 remains, a 50% shareholder of the Nominal Defendant TSS.

15 intentional misconduct, but his knowing violation of the law.

26 for the use of the intellectual property held by TSS.

10 fully set forth herein.

12 violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114.

20 knowledge that they are likely to cause confusion, mistake or deceive.

3 from other marks through long continuous and exclusive use.

5 fully set forth herein.

7 Manager of Futures Fins.

9 a duty of loyalty to TSS and Futures Fins.

17 in an amount to be determined at trial.

23 fully set forth herein.

25 121. As a Director of TSS, Vincent owes fiduciary duties to TSS.

26 122. Defendant has engaged in extensive self-dealing, including without limitation:

6 amount to be determined at trial.

18 to an award of punitive damages.

24 fully set forth herein.

5 Defendant’s resources, Defendants were enriched unjustly.

12 Nominal Defendant in an amount to be determined at trial.

18 fully set forth herein.

25 revenue and assets constitutes conversion.

7 fully set forth herein.

15 148. As a result, Plaintiff is entitled to access Defendants’ and Nominal

16 Defendant’s complete and unadulterated books and records.

19 149. Plaintiff brings the following claims on behalf of himself individually.

2 153. As a Director of TSS, Defendant Vincent owes a duty of loyalty to Plaintiff.

3 154. Defendant has engaged in a variety of self-dealing, including intentionally and

7 amount to be determined at trial.

2 things, intentionally impeding the flow of TSS distributions from Plaintiff.

2 under 15 U.S.C. §1114/Lanham Act §43(a);

4 under 15 U.S.C. §1125(a)/Lanham Act §43(a);

6 §1125(c)/Lanham Act §43(a);

8 5. For injunctive relief barring Defendants and their agents, employees,

16 7. Judgment that Defendants have directly infringed, and induced others to

23 Defendants’ sales of the Accused Products;

25 incurred in prosecuting this action, including, without limitation, pursuant to 35 U.S.C. §

14 Plaintiff respectfully demands a trial by jury in this action.

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