IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 Lisa M. Martens (SBN ) martens@fr.com Nancy L. Ly (SBN ) ly@fr.com FISH & RICHARDSON P.C. 0 El Camino Real San Diego, CA 0 Telephone: () -00 Facsimile: () -0 Attorneys for Plaintiff TerriKelly, LLC IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TERRIKELLY, LLC, a California limited liability company, v. Plaintiff, SKECHERS U.S.A., INC., a Delaware corporation, and SKECHERS U.S.A., INC. II, a Delaware corporation, Defendants. Civil Action No. 'CV GPC DHB FOR FEDERAL TRADEMARK INFRINGEMENT; FEDERAL UNFAIR COMPETITION; FALSE DESIGNATION OF ORIGIN; COMMON LAW TRADEMARK INFRINGEMENT; VIOLATION OF CAL. BUS. & PROF. CODE 0 et seq.; AND UNJUST ENRICHMENT DEMAND FOR JURY TRIAL

2 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 Plaintiff, TerriKelly, LLC ( TerriKelly ) for its Complaint against Defendants Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II (collectively, Skechers ) states and alleges as follows: THE PARTIES. Plaintiff, TerriKelly is a limited liability company organized and existing under the laws of the State of California, with its principal place of business located at Paume Lane, Palm Desert, CA 0.. On information and belief, Skechers U.S.A., Inc. is a Delaware corporation, with headquarters located at Manhattan Beach Blvd., Manhattan Beach, CA 0.. On information and belief, Skechers U.S.A., Inc. II is also a Delaware corporation, with headquarters located at Manhattan Beach Blvd., Manhattan Beach, CA 0.. On information and belief, Skechers U.S.A., Inc. II is a subsidiary of Skechers U.S.A., Inc. JURISDICTION AND VENUE. This Court has jurisdiction over the subject matter of this action pursuant to U.S.C. and (a), as it arises under the trademark laws of the United States. This Court also has subject matter jurisdiction over the claims in this action that relate to trademark infringement, false designation of origin, and federal unfair competition pursuant to sections (a) and (a) of the Lanham Act and U.S.C. (a) and (a), as these claims arise under the laws of the United States. The Court has supplemental jurisdiction over the claims in this Complaint which arise under state statutory and common law pursuant to U.S.C.

3 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 (a) because the state law claims are so related to the federal claims that they form part of the same case or controversy and derive from a common nucleus of operative facts.. This Court has personal jurisdiction over Skechers. Skechers has purposely, continuously, and systematically conducted business in this district. Skechers is registered to do business in the State of California and maintains retail and factory outlet store locations in California with eight store locations in the Southern District of California. In its most recent Form -K filing, Skechers stated that a significant portion of our net sales is derived from sales in California.. Skechers has a continuous, systematic, and substantial presence within this judicial district, including by selling and offering for sale products bearing/using the infringing advertising tag line in this judicial district and by committing acts of trademark infringement in this judicial district, including but not limited to advertising and marketing directly to consumers in this district, selling footwear directly to consumers and/or retailers in this district, and selling footwear into the stream of commerce knowing such footwear products would be sold in this district. These acts of Skechers form a substantial part of the events or omissions giving rise to TerriKelly s claim.. Venue is proper in this district under U.S.C., as a substantial portion of the events giving rise to this action took place in this judicial district. Skechers maintains six stores in San Diego County: one factory outlet store in Carlsbad, one retail store in National City, and three factory outlet stores and one retail store in San Diego. Skechers also maintains two stores in Imperial County: one factory outlet store in Calexico and one factory outlet store in El Centro.

4 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 BACKGROUND ON TERRIKELLY. TerriKelly is a small, start-up footwear company created by Terri Kelly, an entrepreneurial mom of six children with a passion for comfort and yoga. Ms. Kelly was not able to find a flip-flop with the same comfort and minimalistic style of yoga wear, so she set out to create her own. Ms. Kelly developed a light weight and amazingly comfortable flip-flop with a minimalist design. She created and branded them as yoga pants for your feet.. Recognizing the importance of intellectual property rights, Ms. Kelly applied for, and now owns, a federal trademark registration for the YOGA PANTS FOR YOUR FEET mark. The YOGA PANTS FOR YOUR FEET mark enjoys registration on the Principal Register of the United States Patent and Trademark Office ( U.S.P.T.O. ) at Registration No.,0, for use on flip-flops and footwear. TerriKelly LLC, the plaintiff in this action, is the owner by assignment of all rights, title, and interest in the YOGA PANTS FOR YOUR FEET mark from Ms. Kelly. A copy of the certificate of registration and a trademark assignment cover sheet are attached hereto as Exhibit A.. The federal trademark registration for the YOGA PANTS FOR YOUR FEET mark is valid, subsisting, and in full force and effect.. TerriKelly s federal registration of the YOGA PANTS FOR YOUR FEET mark provides benefits such as a statutory presumption of validity, ownership, and an exclusive right to use the registered mark. The federal registration of the YOGA PANTS FOR YOUR FEET mark also serves as constructive notice of a claim of ownership.

5 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0. Ms. Kelly realized that yoga pants for your feet was a unique and perfect way to convey to consumers the comfort and minimalist design of her flipflops. Since at least as early as January, she began to market her flip-flops by using that unique slogan on the product packaging of the flip-flops, as well as on the TerriKelly website, as shown below. /// /// ///

6 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0. TerriKelly flip-flops are worn by women running errands, to and from yoga or the gym, and daily with their casual attire. Their durable design and high level of comfort has also led customers to use TerriKelly flip-flops for travel and sight-seeing. TerriKelly.com, the brand s e-commerce website, features pictures uploaded by customers wearing their TerriKelly flip-flops at various locations around the world.. TerriKelly flip-flops are also promoted nationwide through the Outdoor Retailers trade show in Salt Lake City, the Wanderlust yoga festival in Squaw Valley, and at various fairs and festivals. TerriKelly flip-flops have also received extensive unsolicited media attention as they were recently featured as an editor s pick in LA Yoga Magazine.

7 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0. TerriKelly flip flops are sold through the TerriKelly.com e-commerce website as well as through specialty boutiques around the country and online at Zulily.com and Maine.com. In just over one year of sales, TerriKelly flip flops have enjoyed substantial success.. TerriKelly has also actively promoted the flip-flops in connection with the YOGA PANTS FOR YOUR FEET mark on various social media platforms including Twitter, Instagram, and Facebook.. As a result of TerriKelly s widespread use of the YOGA PANTS FOR YOUR FEET mark in connection with flip-flops, the public recognizes and associates the mark with TerriKelly, which has established extensive goodwill in the slogan. DEFENDANTS AND THEIR ACTIVITIES. Skechers U.S.A., Inc. II is a footwear brand that is familiar with the importance of trademark rights. To date, Skechers U.S.A., Inc. II owns nearly 00 live trademark applications and registrations with the U.S.P.T.O.. Skechers U.S.A., Inc. is a publicly traded footwear company with over billion dollars in net sales for. Skechers footwear includes sandals, boots, and athletic and casual sneakers and is marketed to women, men, and children.. Skechers footwear is marketed and sold in over 00 stores worldwide. Skechers owns and operates over 00 retail stores in the United States alone.. Skechers advertises and markets its footwear extensively on a variety of platforms such as social media, online, print, television, and trade shows. Skechers also utilizes celebrity endorsements in its advertising campaign from

8 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 celebrities such as Brooke Burke-Charvet, Demi Lovato, Mark Cuban, and Ringo Starr.. TerriKelly recently learned of a commercial being shown on television and online promoting Skechers Stretch-Fit Glider shoe. Skechers commercial features celebrity and Dancing with the Stars Season winner Brooke Burke- Charvet and prominently uses TerriKelly s YOGA PANTS FOR YOUR FEET mark to promote its new shoe in the commercial. Skechers also uses the YOGA PANTS FOR YOUR FEET mark in its description of the commercial online, as highlighted below. To date, upon information and belief, Skechers continues to run its commercial on television and YouTube. Skechers commercial can be viewed on YouTube at /// /// /// /// /// ///

9 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0. In addition to its commercial, Skechers has also prominently used TerriKelly s YOGA PANTS FOR YOUR FEET mark in its social media advertising on platforms such as Facebook and Twitter. Shown below are Skechers Facebook and Twitter posts from January, using TerriKelly s YOGA PANTS FOR YOUR FEET mark in its advertising.

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12 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0. A simple search of the U.S.P.T.O. records on the date of Skechers posts on Facebook and Twitter would have revealed TerriKelly s YOGA PANTS FOR YOUR FEET mark as the application was filed on May, seven months before Skechers Facebook and Twitter posts.. TerriKelly s YOGA PANTS FOR YOUR FEET mark was unique until Skechers began using the identical slogan.. Skechers is a company with significant resources. Skechers most recent Form -K filing, provided that Skechers gross profit in was over a billion dollars, an increase from over 00 million in.. It is apparent that Skechers devotes substantial resources towards its marketing and advertising campaigns, which includes engaging celebrities like Ringo Starr and Hall of Fame quarterbacks Joe Montana and Joe Namath to endorse its products.. Skechers substantial resources afford Skechers the luxury of being able to market its products through commercials, print advertisements, and billboards. TerriKelly, on the other hand, as a small start-up company cannot compete. As a result, it is likely that consumers will be confused and deceived as to the source of TerriKelly s YOGA PANTS FOR YOUR FEET mark and may believe that Skechers is actually the owner of the slogan, when, in fact, it is TerriKelly. 0. TerriKelly has not authorized Skechers to use its YOGA PANTS FOR YOUR FEET mark. On March,, Ms. Kelly s counsel sent a cease and desist letter to Skechers counsel of record with the U.S.P.T.O. informing Skechers of its infringement of the YOGA PANTS FOR YOUR FEET mark and demanding that

13 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 Skechers immediately cease all use of the mark. A copy of the cease and desist letter is attached hereto as Exhibit B.. Upon information and belief, to date, Skechers has not ceased all use of the YOGA PANTS FOR YOUR FEET mark in its advertising and marketing.. Skechers is willfully using TerriKelly s YOGA PANTS FOR YOUR FEET mark in its advertising and marketing to promote its Stretch-Fit Glider shoe.. Skechers willful and unauthorized use of TerriKelly s YOGA PANTS FOR YOUR FEET mark in connection with its advertising and marketing is likely to cause confusion as to the source of its goods because Skechers is using the identical mark in commerce to advertise and market its footwear. FIRST CLAIM FOR RELIEF (Federal Trademark Infringement) ( U.S.C. ). TerriKelly repeats the allegations above as if fully set forth herein.. TerriKelly has registered its YOGA PANTS FOR YOUR FEET mark with the USPTO and has the exclusive right to use this mark in connection with its flip-flops and footwear. TerriKelly also has common law rights in this trademark in connection with flip-flops and footwear.. TerriKelly has used the inherently distinctive YOGA PANTS FOR YOUR FEET mark continuously in connection with flip-flops and footwear products since at least as early as January,.. TerriKelly has spent significant time, money, and effort advertising and promoting its trademark in commerce as distinctive source identifier in connection with TerriKelly s goods.

14 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0. As a result of such extensive and exclusive use and promotion of the YOGA PANTS FOR YOUR FEET mark, the mark has developed secondary meaning as an indicator that TerriKelly is the source of the goods identified by the mark.. TerriKelly s YOGA PANTS FOR YOUR FEET mark represents valuable goodwill owned by TerriKelly. 0. Skechers use of the YOGA PANTS FOR YOUR FEET mark in connection with its footwear is without TerriKelly s consent.. Skechers unauthorized and infringing use of the YOGA PANTS FOR YOUR FEET mark in connection with Skechers advertisement, promotion, offers for sale, and sales of its footwear through commercials and social media websites constitutes use of the YOGA PANTS FOR YOUR FEET mark in commerce.. Skechers uses the YOGA PANTS FOR YOUR FEET mark to confuse and deceive the public into believing that Skechers and its footwear are sponsored, affiliated or associated with TerriKelly, when, in fact, they are not.. Skechers unauthorized use of the YOGA PANTS FOR YOUR FEET mark is likely to cause confusion, mistake, and deception as to the source of the footwear and Skechers is unfairly benefitting from TerriKelly s substantial efforts in advertising and promoting its YOGA PANTS FOR YOUR FEET mark.. Due to Skechers unauthorized use of the YOGA PANTS FOR YOUR FEET mark, TerriKelly has suffered and continues to suffer great and irreparable injury, for which TerriKelly has no adequate remedy at law.. Skechers actions constitute willful infringement of the YOGA PANTS FOR YOUR FEET mark in violation of U.S.C. ().

15 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0. Skechers conduct has been willful and in bad faith making this an exceptional case within the meaning of U.S.C. (a).. Skechers is liable to TerriKelly for an amount representing the greater of three times TerriKelly s damages or Skechers illicit profits, as well as TerriKelly s costs and reasonable attorney fees. SECOND CLAIM FOR RELIEF (Federal Unfair Competition & False Designation of Origin) ( U.S.C. (a)). TerriKelly repeats the allegations above as if fully set forth herein.. Skechers unauthorized and infringing use of the YOGA PANTS FOR YOUR FEET mark in connection with Skechers advertisement, promotion, offers for sale, and sales of its footwear through its commercials and social media websites constitutes use of the YOGA PANTS FOR YOUR FEET mark in commerce. 0. Skechers uses the YOGA PANTS FOR YOUR FEET mark to confuse and deceive the public into believing that Skechers and its footwear are sponsored, affiliated or associated with TerriKelly, when, in fact, they are not.. Skechers unauthorized use of the YOGA PANTS FOR YOUR FEET mark is likely to cause confusion, mistake, and deception as to the source of the footwear and Skechers is unfairly benefitting from TerriKelly s substantial efforts in advertising and promoting its YOGA PANTS FOR YOUR FEET mark.. Skechers has actual knowledge of TerriKelly s ownership and prior use of the YOGA PANTS FOR YOUR FEET mark and without the consent of TerriKelly, has and continues to willfully and intentionally violate U.S.C.

16 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 (a). Upon information and belief, this is an exceptional case within the meaning of U.S.C.. Skechers actions constitute a false designation of origin and unfair competition in violation of U.S.C. (a).. Skechers, by its actions, has irreparably injured and damaged TerriKelly. Such irreparable injury will continue unless Skechers is permanently enjoined by this Court from further violation of TerriKelly s rights, for which TerriKelly has no adequate remedy at law. THIRD CLAIM FOR RELIEF (California Common Law Trademark Infringement). TerriKelly repeats the allegations above as if fully set forth herein.. TerriKelly has a protectable interest in the YOGA PANTS FOR YOUR FEET mark.. Skechers acts complained of herein constitute infringement of TerriKelly s common law rights in its mark under California common law.. TerriKelly seeks all damages to which it is entitled for Skechers infringement in an amount to be determined by the Court.. TerriKelly seeks injunctive relief to prevent the irreparable harm Skechers infringement has caused and will continue to cause if not enjoined. FOURTH CLAIM FOR RELIEF (California Unfair Competition) (California Common Law and Cal. Bus. and Prof. Code 0 et seq.) 0. TerriKelly repeats the allegations above as if fully set forth herein.

17 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0. Skechers actions constitute unlawful and/or unfair business practices in violation of California Business & Professions Code 0 et seq.. By virtue of the acts complained of herein, Skechers has intentionally caused a likelihood of confusion among the consumers and public, injured TerriKelly s business reputation, and has unfairly competed in violation of California Business & Professions Code 0 et seq.. Skechers is using a slogan that is identical to TerriKelly s YOGA PANTS FOR YOUR FEET mark and is likely to cause confusion.. Skechers acts complained of herein constitute unlawful, unfair, malicious, or fraudulent business practices, which have injured and damaged TerriKelly.. Upon information and belief, the acts of Skechers were done knowingly, willfully, and maliciously with the intent to trade upon the good will of TerriKelly.. Skechers, by its actions, has irreparably injured and damaged TerriKelly. Such irreparable injury will continue unless Skechers is permanently enjoined by this Court from further violation of TerriKelly s rights, for which TerriKelly has no adequate remedy at law. FIFTH CLAIM FOR RELIEF (Unjust Enrichment). TerriKelly repeats the allegations above as if fully set forth herein.. The acts of Skechers complained of herein constitute unjust enrichment as Skechers is benefitting from the valuable goodwill of TerriKelly s YOGA PANTS FOR YOUR FEET mark at TerriKelly s expense.

18 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 PRAYER FOR RELIEF WHERFORE, TerriKelly respectfully requests the Court to award TerriKelly the following relief: A. That the Court render a final judgment in favor of TerriKelly and against Skechers on all claims for relief herein; B. That Skechers be adjudged to have infringed TerriKelly s rights in and to its federally registered and common law YOGA PANTS FOR YOUR FEET mark; C. That the Court render a final judgment declaring Skechers has willfully violated the provisions of U.S.C. (a) by infringing TerriKelly s rights in the YOGA PANTS FOR YOUR FEET mark; D. That the Court render a final judgment declaring that Skechers has violated California Business & Professions Code 0 et seq. by unfairly competing with TerriKelly and that Skechers actions were done willfully and knowingly; E. That the Court render a final judgment declaring Skechers has violated California common law by unfairly competing with TerriKelly and that Skechers actions were done willfully and knowingly; F. That Skechers, its officers, principals, agents, servants, employees, attorneys, successors, and assigns and all other persons in active concert or participation with any of them who receive actual notice of the injuction by personal service or otherwise, be forthwith permanently enjoined from:. using the YOGA PANTS FOR YOUR FEET mark, or any other mark, symbol, or design that is confusingly similar to the YOGA PANTS FOR YOUR FEET mark on or in connection with its

19 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 footwear or any other goods, including but not limited to flip flops;. filing any applications for registration of any trademarks confusingly similar to TerriKelly s YOGA PANTS FOR YOUR FEET mark;. falsely designating the origin of Skechers goods;. unfairly competing with TerriKelly in any manner whatsoever;. causing a likelihood of confusion or injury to TerriKelly s business reputation; and. manufacturing, using, displaying, distributing, or selling any goods that infringe the YOGA PANTS FOR YOUR FEET mark; G. That Skechers be required to account to TerriKelly for any and all profits derived by Skechers and all damages sustained by TerriKelly by virtue of Skechers actions complained of herein; H. That Skechers be ordered to pay over to TerriKelly all damages TerriKelly has sustained as a consequence of the acts complained of herein, subject to proof at trial; I. That TerriKelly be awarded damages pursuant to U.S.C., together with prejudgment and post-judgment interest; J. That Skechers actions be deemed willful and that this case be deemed exceptional and the amount of damages be trebled and that the amount of profits be increased by as many times as the Court deems appropriate, pursuant to U.S.C. ;

20 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 K. That an award of reasonable costs, expenses, and attorneys fees be awarded to TerriKelly pursuant to U.S.C. ; and L. Such other and further relief as this Court may deem just. Respectfully submitted, FISH & RICHARDSON P.C. Dated: May, By: /s/ Lisa M. Martens Lisa M. Martens Nancy L. Ly Attorneys for Plaintiff TerriKelly, LLC

21 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 DEMAND FOR TRIAL BY JURY Pursuant to Rule (b) of the Federal Rules of Civil Procedure, Plaintiff TerriKelly hereby requests a trial by jury on all claims and issues so triable. Respectfully submitted, FISH & RICHARDSON P.C. Dated: May, By: /s/ Lisa M. Martens Lisa M. Martens Nancy L. Ly Attorneys for Plaintiff TerriKelly, LLC

22 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 TABLE OF EXHIBITS Page # Exhibit A.. Exhibit B..

23 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 EXHIBIT A

24 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 Exhibit A - Page

25 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 Exhibit A - Page

26 Electronic Version v. Stylesheet Version v. Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 TRADEMARK ASSIGNMENT COVER SHEET SUBMISSION TYPE: NATURE OF CONVEYANCE: NEW ASSIGNMENT ASSIGNMENT OF THE ENTIRE INTEREST AND THE GOODWILL CONVEYING PARTY DATA Name Formerly Execution Date Entity Type Terri Kelly 0/0/ INDIVIDUAL: UNITED STATES RECEIVING PARTY DATA Name: Terrikelly LLC Street Address: Pauma Lane City: Palm Desert State/Country: CALIFORNIA Postal Code: 0 Entity Type: LIMITED LIABILITY COMPANY: CALIFORNIA PROPERTY NUMBERS Total: Property Type Number Word Mark Registration Number: 0 YOGA PANTS FOR YOUR FEET CORRESPONDENCE DATA Fax Number: Phone: jamie@justtrademarks.com Correspondence will be sent to the address first; if that is unsuccessful, it will be sent using a fax number, if provided; if that is unsuccessful, it will be sent via US Mail. Correspondent Name: Jamie Shelden Address Line : 0 Suite F, PMB 0 Airline Highway Address Line : Hollister, CALIFORNIA 0 NAME OF SUBMITTER: Signature: Jamie Shelden /Jamie Shelden/ Date: 0/0/ Total Attachments: source=scan000#page.tif RECEIPT INFORMATION Exhibit A - Page

27 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 ETAS ID: TM0 Receipt Date: 0/0/ Fee Amount: $0 Exhibit A - Page

28 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 EXHIBIT B

29 Case :-cv-0-gpc-dhb Document Filed 0// Page of 0 March, Via mlerner@kleinberglerner.com and Fax:..0 Marshall A. Lerner Kleinberg & Lerner, LLP Century Park E, Suite Los Angeles, CA 00-0 Re: Sketchers USA Inc. s Infringement of the YOGA PANTS FOR YOUR FEET Trademark Dear Mr. Lerner: This firm represents Terri Kelly of Palm Desert, CA in connection with trademark and other matters. We are writing regarding your client, Sketchers USA Inc. II s (Sketchers) unauthorized use of the YOGA PANTS FOR YOUR FEET tagline in connection the company s television and social media advertising campaign for Sketchers new STRETCH FIT women s shoes. Our client, Terri Kelly, launched her footwear company back in November introducing her own line of comfort flip flops under the TERRI KELLY trademark. With a focus on simplicity and comfort, the TERRI KELLY line has quickly become the popular favorite casual footwear amongst the yoga crowd and others. A few months later, the company began using the tagline/trademark YOGA PANTS FOR YOUR FEET in connection with the TERRI KELLY line of flip flops. Ms. Kelly adopted the YOGA PANTS FOR YOUR FEET tagline and trademark in January and since then the company has actively promoted the trademark in connection with its footwear on its website at Twitter, Instagram, Facebook and in other social media. TERRI KELLY footwear is sold directly through the company s website as well as in specialty boutiques around the country and online at Zulily and Maine. The products are promoted nationwide via the Outdoor Retailers trade show in Salt Lake City, the Wanderlust yoga festival in Squaw Valley, and at various fairs and festivals. TERRI KELLY flip flops were also recently featured as an editor s pick in LA Yoga Magazine. Ms. Kelly owns United States trademark application serial number for the YOGA PANTS FOR YOUR FEET trademark covering footwear. The application was published for opposition on February, and we expect the registration to issue shortly. Exhibit B - Page

30 Case :-cv-0-gpc-dhb Document Filed 0// Page 0 of 0 My client has invested a great deal of time, money and effort promoting its footwear and in building an outstanding reputation for high quality, high comfort products. As a result of the company s extensive advertising and social media marketing efforts, the YOGA PANTS FOR YOUR FEET tagline and trademark has come, in short order, to embody substantial and valuable goodwill. It has recently come to Ms. Kelly s attention that Sketchers began an apparently nationwide advertising campaign for it s new line of stretchable shoes using the YOGA PANTS FOR YOUR FEET tagline. It also appears that the tagline is trending on Twitter in connection with Sketchers new footwear line. As my client has substantial nationwide rights in this trademark based on prior use and based on her federal trademark application, Sketchers use of the identical tagline in connection with virtually identical products is likely to cause confusion among consumers as to the source and/or sponsorship of your client s footwear products. Any continued use of the YOGA PANTS FOR YOUR FEET trademark by Sketchers constitutes trademark infringement in violation of federal law and state laws governing trademark infringement and unfair business practices. While we would like to believe that Sketchers was unaware of Ms. Kelly rights in the YOGA PANTS FOR YOUR FEET trademark when the company chose to use the tagline in their nationwide television advertising campaign, a cursory Google search quickly reveals multiple references to Ms. Kelly s products and the YOGA PANTS FOR YOUR FEET trademark. Until the Sketchers television campaign, in fact, all Google search references were to Ms. Kelly s company, and no others. As I am sure you will understand, in order to protect her rights, my client cannot permit Sketchers to continue to use the YOGA PANTS FOR YOUR FEET trademark in any television, print, online or other advertising spots. To avoid any consumer confusion, my client requires that Sketchers agree in writing that the company will immediately cease all use the trademark and pull the currently running television ad campaign and any other promotional uses of the YOGA PANTS FOR YOUR FEET tagline immediately. We have copied litigation counsel on this notice and will expect immediate written confirmation no later than Friday, March, that Sketchers will resolve this matter as requested. Your client s prompt attention to this matter will prevent the need for further legal action by my client. Sincerely, Jamie R. Shelden, Esq. cc: Terri Kelly Jamie R. Shelden, Esq. 0 Suite F, PMB 0, Airline Highway Hollister, CA 0.. (office and fax) jamie@justtrademarks.com Exhibit B - Page