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 Defendant s 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

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Page 1: Bowman v. Crossfit - Seeking Judgment Crossfit is Generic

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 Defendant’s

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

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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, Defendant’s 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

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Preceding Paragraphs as fully set forth in this Paragraph.

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

Plaintiff’s descriptive use of the term “crossfit” is an infringement of Defendant’s 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

Defendant’s 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 Defendant’s crossfit trademarks

have become generic;

(b) For a judicial determination that Plaintiff’s use of crossfit on

www.crossfitwod.com is not an infringement of any of Defendant’s 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 attorney’s 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

[email protected]

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