Bowman v. Crossfit - Seeking Judgment Crossfit is Generic

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  • IN THE UNITED STATES DISTRICT COURT

    FOR THE WESTERN DISTRICT OF TEXAS

    AUSTIN DIVISION

    COLTER BOWMAN, an individual

    Plaintiff,

    v. CIVIL ACTION NO. 14-cv-771

    CROSSFIT INC., JURY DEMANDED

    Defendant.

    COMPLAINT FOR DECLARATORY JUDGMENT

    Plaintiff COLTER BOWMAN (Plaintiff), appearing through its undersigned counsel,

    alleges as follows:

    NATURE OF ACTION AND JURISDICTION

    1. This Court has jurisdiction over the subject matter of this action pursuant to

    Section 39 of the Lanham Act, 15 U.S.C. 1121 and Chapter 85 of the Judiciary and Judicial

    Procedure Code, 28 U.S.C. 1331 and 1338. This lawsuit is brought pursuant to the

    Declaratory Judgment Act, 28 U.S.C. 2201.

    2. Jurisdiction is proper against Defendant as Plaintiff believes that Defendants

    threatening communications against Plaintiff, as outlined in the Complaint, provide sufficient

    contacts with this District, such that Defendant is subject to personal jurisdiction in Texas.

    3. Venue is proper in this District pursuant to 28 U.S.C. 1391. because Defendant is

    subject to personal jurisdiction in this Court and because a substantial part of the harm threatened

    to Plaintiff is occurring in this District by reason of the facts set forth in this Complaint.

    Case 1:14-cv-00771 Document 1 Filed 08/15/14 Page 1 of 5

  • -2

    PARTIES

    4. Plaintiff, Colter Bowman (Plaintiff) is an individual with an address of 4111

    Marathon Blvd Suite 250, Austin TX 78756.

    5. Defendant Crossfit, Inc., (Defendant) is a Delaware Corporation with a principal

    place of business at 1500 Green Hills Road Suite 201 Scotts Valley, CA 95066.

    FACTS

    A. THE CROSSFIT WORKOUT

    6. Crossfit, Inc. is strength and conditioning exercise program. See

    http://www.crossfit.com/cf-info/what-crossfit.html. It was developed by Greg Glassman in 2004.

    See http://www.inc.com/magazine/201307/burt-helm/crossfit-empire.html.

    7. Colter Bowman operates a website called www.crossfitwod.com in which people

    can find different types of crossfit workouts. Nothing is sold on crossfitwod.com, instead the

    website merely provides a description of different crossfit workouts, a history of high intensity

    training, a glossary of crossfit terms, and a blog devoted to crossfit workouts and diet.

    8. On July 17, 2014, Defendant sent Plaintiff a cease and desist letter alleging

    violation of its Crossfit trademarks, namely Reg. Nos. 3007458, 3826111, 4049689, 4053443,

    4332239 and 4122681. (Exhibit A). Defendant demanded Plaintiff accept its terms to cease all

    use of crossfit by 12pm on July 22, 2014 by 12pm. Id.

    9. On July 29, 2014, Marshall S. Brenner, Defendants Deputy General Counsel, sent

    an email to Plaintiff in which Defendant reiterated its demand that Plaintiff cease all use of

    crossfit and threatened that: [t]ypically when one receives an email from me it means that a

    lawsuit is about to be filed. This case is no different. (Exhibit B)

    COUNT 1

    DECLARATORY JUDGMENT LANHAM ACT 15 U.S.C. 1114, 1125

    10. Plaintiff incorporates by reference the allegations contained in each of the

    Case 1:14-cv-00771 Document 1 Filed 08/15/14 Page 2 of 5

  • -3

    Preceding Paragraphs as fully set forth in this Paragraph.

    11. An actual controversy exists between Plaintiff and Defendant as to whether

    Plaintiffs descriptive use of the term crossfit is an infringement of Defendants registered and

    common law trademarks. Plaintiff denies that there could be any likelihood of confusion as

    Defendant alleges. Plaintiff merely uses the term crossfit to describe a type of workout which

    is a fair use pursuant to 15 U.S.C. 1115(b)(4).

    COUNT 2

    DECLARATORY JUDGMENT LANHAM ACT 15 U.S.C. 1127

    12. Plaintiff incorporates by reference the allegations contained in each of the

    Preceding Paragraphs as fully set forth in this Paragraph.

    13. An actual controversy exists between Plaintiff and Defendant as to whether

    Defendants trademarks in the term crossfit has been abandoned as generic under 15 U.S.C.

    1127. Plaintiff alleges that because consumers identify crossfit as a particular method of

    exercise, and not as an indicator of source, it has become generic.

    PRAYER FOR RELIEF

    WHEREFORE, Plaintiff prays that:

    (a) For a judicial determination and order declaring that Defendants crossfit trademarks

    have become generic;

    (b) For a judicial determination that Plaintiffs use of crossfit on

    www.crossfitwod.com is not an infringement of any of Defendants asserted trademark in crossfit;

    (c) For an Order enjoining Defendant and its agents and attorneys from further

    asserting trademark rights in the term crossfit.

    (d) For Plaintiff to recover its costs and attorneys fees in bringing this action.

    (e) Such other relief as the Court may deem appropriate.

    Case 1:14-cv-00771 Document 1 Filed 08/15/14 Page 3 of 5

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    JURY DEMAND

    Plaintiff demands a jury trial in accordance with Federal Rule of Civil Procedure 38(b).

    DATED: August 15, 2014 Respectfully submitted,

    By:/s/ Joshua G. Jones

    Joshua G. Jones

    Texas Bar No. 24065517

    Reed & Scardino LLP

    301 Congress Ave Suite 1250

    Austin, TX 78701

    512-615-5474

    jjones@reedscardino.com

    Case 1:14-cv-00771 Document 1 Filed 08/15/14 Page 4 of 5

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    CERTIFICATE OF SERVICE

    I certify that the foregoing COMPLAINT was filed on August 15, 2014 via the cm/ecf system which

    will send notification of such filing to all parties of record.

    /s/ Joshua Jones

    Case 1:14-cv-00771 Document 1 Filed 08/15/14 Page 5 of 5

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