Sportsgrants v. Crossfit

8/3/2019 Sportsgrants v. Crossfit

1/22

Michael A. Cohen, OSB # 965776Email [email protected] R. Wilmot, OSB #061936Email [email protected], WILLIAMSON & WYATT, P.C.

FILED :-=; Ft=''R ,.' :) " ' , .1 ~ ' .__- . ~ ~ .11- L:"lbIJ:;Dr-(f.:p

1211 SW 5th Ave., Suite 1900Portland, OR 97204Telephone (503) 222-9981Fax (503) 796-2900

Timothy J. Gorry, to be admitt ed Pro Hac ViceEmail [email protected] M. Joseph, to be admitted Pro Hac ViceEmail [email protected], KAHAN & GORRY, PC9601 Wilshire Boulevard, Suite 700Beverly Hills, CA 90210Telephone (310) 855-3200Fax (310) 855-3201

Of Attorneys for Plaintiff, Sportsgrants, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

SPORTSGRANTS, INC., an Oregoncorporation,

Plaintiff,

vs.

CROSSFIT, INC., a Delawarecorporation; and DOES 1 through 10,inclusive,

Defendants.

Page 1 - COMPLAINT

Civil No.CV'12 - 019 6 - ~ SI

VERIFIED COMPLAINT FOR:1. TRADEMARK INFRINGEMENT2. COMMON LAW TRADEMARK

INFRINGEMENT3. VIOLATION OF LANHAM ACT

(15 U.S.C. 1 051, et seq.)4. VIOLATION OF LANHAM ACT

(15 U.S.C. 43(c))5. ACCOUNTING

JURY TRIAL DEMANDED

SCHWABE . WIlliAMSON & WYAn. PC .Atlorneys al LawPacwest Center

1211 SW 51h Ave .. Suile 1900 Portland . OR 97204

Telephone 503 .222 .9981 Fa x 503 .796 .2900

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1FL/5ZbI

Case 3:12-cv-00196-SI Document 1 Filed 02/03/12 Page 1 of 22 Page ID#: 1


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Plaintiff Sportsgrants, Inc. ("Sportsgrants") alleges the following against

Defendant CrossFit, Inc., and Does 1 through 1 0 (collectively, "Defendants"):

JURISDICTION AND VENUE

1. This is an action for injunctive relief and damages arising under (i) the

federal trademark laws and (ii) for false designation of origin under 15 U.S.C.

1051, et seq. (the Lanham Act).

2. This Court has original subject matter jurisdiction over the subject

matter pursuant to Section 39 of the Lanham Act, 15 U.S.C. 1121, and under 28

U.S.C. 1331 and 28 U.S.C. 1338, because the action arises, in part, under 15U.S.C. 1114 and 1125. This Court has supplemental jurisdiction over the non

federal question claims pursuant to 28 U.S.C. 1367.

3. Venue is proper in the United States District Court for the District of

Oregon pursuant to 28 U.S.C. 1391(b), because a substantial part of the events

giving rise to Sportsgrants' claims arose in Oregon and Plaintiff's principal place

of business is located in Oregon.

4. This Court has personal jurisdiction over the Defendants because, on

information and belief, Defendants have engaged in acts or omissions within and

outside the State of Oregon causing injury within the State of Oregon and has

otherwise made or established contacts within the State of Oregon sufficient to

permit the exercise of personal jurisdiction, including establishing and supporting

numerous CrossFit "Affiliates" within the State of Oregon, as further alleged in

Paragraph 10 below.

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1211 SW 5th Ave ., Suite 1900 Portland , OR 97204

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PARTIES

5. Plaintiff Sportsgrants, Inc. ("Sportsgrants") is an Oregon not-for

profit corporation, with its principal place of business in Hood River, Oregon.

6. Sportsgrants is informed and believes and thereon alleges that

Defendant CrossFit, Inc. ("CrossFit") is, and at all times mentioned herein was, a

Delaware corporation, with its principal place of business in Washington DC.

7. The true names and capacities of defendant DOES 1 through 1 0,

whether individual, corporate, associate, or otherwise, are presently unknown to

Sportsgrants who therefore sues said defendants by such fictitious names.

Sportsgrants will seek leave of this Court to amend this complaint to show the truenames and capacities of said defendants when the same have been ascertained, or

according to proof presented at trial.

8. Sportsgrants is informed and believes and on that basis alleges that at

all times mentioned herein, each of the defendants, including those sued as DOES

1 through 10 (collectively, "Defendants"), was the agent of each of the remaining

defendants, and in doing the things hereinafter alleged, was acting within the

course and scope of such agency and with the permission, consent of and

ratification by their co-defendants.

GENERAL ALLEGATIONS

9. CrossFit is in the business of offering fitness training services through

its website, and also through gym facilities located throughout the United States,

including in Oregon, and abroad.

10. Sportsgrants is informed and believes and on that basis alleges that

these gym facilities are independently owned and operated by what CrossFit refers

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to as "Affiliates." The gym facilities that are owned and operated by Affiliates are

referred to herein as an "Affiliate Gym" or "Affiliate Gyms."

11. Scott Zagarino ("Mr. Zagarino") is the founder and Chief Executive

Officer of Sportsgrants. All acts alleged herein to have been done by Mr. Zagarino

were done in his capacity as Chief Executive Officer of Sportsgrants.

12. Mr. Zagarino is a former professional athlete who, in 1988, was

profoundly touched by his experience visiting a critical care unit for young adults.

The effect of that experience changed the course of Mr. Zagarino's life.

13. Since that time, Mr. Zagarino has been involved with various

fundraising endeavors, and has worked tirelessly to create programs that haveraised millions of dollars to make a difference in the lives of those in need.

14. In 2006, Mr. Zagarino was working on a more efficient and effective

way to raise money for worthy causes .

15. In or around the spring of2006, Mr. Zagarino and a friend completed

a newly introduced workout called "Figh t Gone Bad" at an Affiliate Gym in Los

Angeles. I t was during this workout in 2006 that Mr. Zagarino came up with the

idea to create a fundraising event whereby athletes could collectively dedicate one

day of the year to fundraising for charity by collecting donations online. The

simplicity of the idea was especially appealing to Mr. Zagarino because the

fundraising event would require little overhead or administrative costs, thereby

leaving the vast majority of the donations to charity.

16. In or around the spring of 2006, Mr. Zagarino came up with the idea

to name the charity event "Fight Gone Bad," which was a phrase he first heard

used by mixed martial arts champion B.J. Penn to describe a particularly tough and

challenging workout designed for him.

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17. In September, 2006, Mr. Zagarino sponsored and promoted the first

"Fight Gone Bad" for charity. Mr. Zagarino produced the entire event himself by,

among other things, tirelessly calling local Affiliate Gyms to ask i f they would

participate.

18. Participants collectively dedicated this one day o f the year to

soliciting and collecting online donations. Participation in and donations for the

event were not contingent upon completing a workout; the participants needed only

to attempt to complete a workout.

19. The first Fight Gone Bad for charity included approximately 324

participants at approximately 30 Affiliate Gyms. The event raised approximatelyOne Hundred Seventeen Thousand Three Hundred Eleven Dollars ($117,311), one

hundred percent of which was donated to charity.

20. Neither Greg Glassman (who is a principal of CrossFit), nor anyone

else employed by CrossFit, had any communications with Mr. Zagarino regarding

the 2006 Fight Gone Bad charity event. Likewise, neither Greg Glassman, nor

anyone else employed by CrossFit, contributed in any way to the production,

promotion, or advertising of the 2006 Fight Gone Bad charity event.

21. The success of the first Fight Gone Bad event caused Mr. Zagarino to

endeavor to tu m Fight Gone Bad into an annual fundraising event, as described in

Paragraph 18, above.

22. In furtherance of this objective, in 2007 Mr. Zagarino formed

Sportsgrants and, at that time, assigned all his intellectual property rights to the

Fight Gone Bad charity event to Sportsgrants.

23. Fight Gone Bad 2 for charity took place in September 2007 and was

exclusively produced by Sportsgrants, through the tireless work of Mr. Zagarino,

acting as the Executive Director. Approximately 900 people at approximately 60

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Affiliate Gyms participated in the event, which raised over Two Hundred Eighty

Three Thousand Seven Hundred Dollars ($283,700) for the benefit of charity by

collecting donations online on a website designed and owned by Sportsgrants.

24. Neither Greg Glassman, nor anyone else employed by CrossFit, had

any communications with Mr. Zagarino regarding the 2007 Fight Gone Ba d charity

event. Likewise, neither Greg Glassman, nor anyone else employed by CrossFit,

contributed in any way to the production, promotion, or advertising of the 2007

Fight Gone Ba d charity event.

25. Prior to the third annual Fight Gone Bad for charity, Mr. Zagarino

contacted executives at CrossFit to ask i f CrossFit would support the event.CrossFit declined.

26. Thereafter, the Fight Gone Bad 3 for charity took place in September

2008 and was exclusively produced by Sports grants, again, through the tireless

work o f Mr. Zagarino. Approximately 2,400 people at approximately 200 Affiliate

Gyms and elsewhere participated in the event, including, Affiliate Gyms in

Canada. As a result o f the efforts of Sports grants and Mr. Zagarino, the third

annual Fight Gone Bad event raised a total o f approximately Six Hundred Twenty

Seven Thousand Dollars ($627,000) for charity.

27. Neither Greg Glassman, nor anyone else employed by CrossFit, had

any communications with Mr. Zagarino regarding the 2008 Fight Gone Bad charity

event. Likewise, neither Greg Glassman, nor anyone else employed by CrossFit,

contributed in any way to the production, promotion, or advertising o f the 2008

Fight Gone Bad charity event.

28. In or around 2009, CrossFit contacted Mr. Zagarino to seek his

assistance with forming CrossFi t's own charitable foundation ("CrossFit

Foundation"). Mr. Zagarino obliged.

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1211 SW 5th Ave ., Suite 1900 Portland, OR 97204

Telephone 503 .222 .9981 Fax 503.796.2900

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29. Fight Gone Bad 4 for charity took place in September 2009 and was

exclusively produced by Sportsgrants, again, through the tireless work o f

Mr. Zagarino. Approximately 5,200 people at approximately 365 Affiliate Gyms

and elsewhere participated in the event, including Affiliate Gyms and other

facilities located internationally. As a result o f the efforts o f Sportsgrants and Mr.

Zagarino, the fourth annual Fight Gone Bad event raised a total o f approximately

One Million One Hundred Thousand Dollars ($1,100,000).

30. For the first time, CrossFit agreed to include and did include a few

notices about Fight Gone Bad 4 on its website and Facebook page. Sportsgrants is

informed and believes and on that basis alleges that CrossFit's cooperation wasdirectly related to the fact that Mr. Zagarino voluntarily assisted with efforts to

create the CrossFit Foundation, as alleged in Paragraph 28, above.

31. In early 2010, during a conference call for the CrossFit Foundation in

which Mr. Glassman and Mr. Zagarino were both participants, Mr. Glassman

indicated that he would like for CrossFit to have more control over the annual

Fight Gone Bad charity event. After discussion with others on the call, including

other principals of CrossFit, Mr. Glassman retracted his statement, and conceded

that it was proper for the event to be produced by Sportsgrants.

32. Shortly thereafter, Mr. Zagarino entered into discussions with

principals at CrossFit regarding a potential assignment and license deal whereby

Sports grants would assign its Fight Gone Bad common law trademark rights to

CrossFit in exchange for a long term renewable license o f the trademark back to

Sportsgrants. Those discussions did not culminate in an agreement between the

parties.

33. In or around August, 2010, Sportsgrants filed an application for

registration of the Fight Gone Bad mark with the United States Patent and

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1211 SW 5th Ave " Suite 1900 Portland, OR 97204

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Page 7 - COMPLAINT

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Trademark Office ("USPTO"), in International Classes 35 and 36, specifically for

"charitable services, namely, organizing and conducting charitable athletic events

that promote public awareness of the importance o f fundraising for charities," and

"charitable fundraising services, namely, organizing and conducting athleticfundraising events for charities."

34. Sportsgrants is informed and believes and on that basis alleges that

CrossFit, specifically, those on the board of directors of the CrossFit Foundation,

were aware that Sportsgrants filed an application to register the Fight Gone Bad

trademark.

35. Prior to the fifth annual Fight GoneBad

for charity, Mr. Zagarinocontacted executives at CrossFit to again request that CrossFit support the event.

CrossFit again declined to provide the specific support requested by Mr. Zagarino

on behalf o f Sportsgrants.

36. In or about September 2010, the fifth annual Fight Gone Bad charity

event took place with over 6,750 participants from over 600 Affiliate Gyms and

other facilities. Fight Gone Bad 5 helped raise nearly One Million Five Hundred

Thousand Dollars ($1,500,000) for charity, including Two Hundred Thousand

($200,000) donated directly to the CrossFit Foundation.

37. Other than to include a few posts on CrossFit's blog and Facebook

page about Fight Gone Ba d 5, neither Greg Glassman nor anyone else employed

by CrossFit contributed to the production, promotion, or advertising of the 2010

Fight Gone Bad charity event.

38. In or around August, 2011, S ports grants trademark was registered

with the USPTO on the Principal Register under the Act of 1946 (U.S. Registration

No. 4,017,046), covering the use o f the mark in International Class 35 for

"charitable services, namely, organizing and conducting charitable athletic events

SCHWABE , WILLIAMSON & WYAn, PC Attorneys at Law Pacwest Center

1211 SW 51h Ave. , Su ite 1900 Portland, OR 97204

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that promote public awareness o f the importance of fundraising for charities" and

in Class 36 for "charitable fundraising services, namely, organizing and conducting

athletic fundraising events for charities." True and correct copies of the USPTO's

TESS and T AR R records of that registration are attached hereto as Exhibit A. This

trademark registration is valid and subsisting.

39. In or about March, 2011, Mr. Zagarino was elected as the executive

director of the board of directors for the CrossFit Foundation. During weekly

conference calls, Mr. Zagarino made requests for support and assistance from

CrossFit for Sportsgrants' Fight Gone Bad charity event. With only a few

exceptions, CrossFit either rejected or ignored those requests.40. In or about September 2011, the sixth annual Fight Gone Bad

charity event took place with over 16,438 participants at approximately 1,080

Affiliate Gyms and other facilities in 16 countries around the world. Fight Gone

Bad 6 raised approximately Two Million Three Hundred Thousand Dollars

($2,300,000) for charity, including Six Hundred Thousand Dollars ($600,000)

donated directly to the CrossFit Foundation.

41. After the conclusion of the sixth annual Fight Gone Bad event,

Sportsgrants announced that the next Fight Gone Bad charity event would take

place on September 22,2012.

42. Shortly thereafter, Sportsgrants was made aware of a series of

charitable events purportedly called "Fight Gone Bad." One such event was

scheduled to take place in the city of London, Ontario Canada, and the other was

scheduled to take place in the city of Atlantic Beach, Florida. Sportsgrants is

informed and believes and on that basis alleges that these events were modeled

after the Fight Gone Bad charity event created and produced by Sportsgrants.

Sportsgrants is further informed and believes and on that basis alleges that these

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events are similar, i f not identical, to those created and produced by Sportsgrants,

except that they are produced by different persons and/or entities, and having no

affiliation with Sportsgrants.

43. At no time did Sportsgrants give any other person or entity permission

to utilize its trademark. Accordingly, Sportsgrants immediately notified the

infringing parties of its trademark and requested that they immediately cease and

desist from further use of the name Fight Gone Bad in connection with any charity

event.

44. Sportsgrants is infonned and believes and on that basis alleges that in

January, 2012, CrossFit began to advertise and promote in emails and elsewherethat, "This year's Fight Gone Bad will be held in June this year and will fund

childhood illness."

45. Sportsgrants is also infonned and believes and on that basis alleges

that in January, 2012, persons on behalf of Cross Fit began placing telephone calls

and sending emails to Affiliate Gyms to advertise and promote a "new Fight Gone

Bad" that will be produced by CrossFit, which has "taken out the middle man"

by removing Sportsgrants.

46. At all times relevant hereto, CrossFit was entirely aware o f

Sportsgrants' use of the name Fight Gone Bad for charity events, and was fully

aware that Sportsgrants owns the federally protected trademark Fight Gone Bad

in International Class 35 and 36.

47. CrossFit's use of the Fight Gone Bad trademark in connection with

charitable events is without the consent of Sportsgrants. Moreover, Sportsgrants is

informed and believes and on that basis alleges that, as of the date of this

Complaint, CrossFit continues to use Sportsgrants' trademark without the

permission or consent of Sportsgrants.

SCHWABE, WILLIAMSON & WYATT , PC Atto m eys at Law Pacwest Center

1211 SWSthAve ., Suite 1900 Portland, OR 97204

Te lephone 5 03.222.9981 Fax 5 0 3.796 .2900

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FIRST CLAIM FO R RELIEF

(For Trademark Infringement Against All Defendants, 15 U.S.C. 1114)

48. Sports grants incorporates herein by this reference the allegations in

paragraphs 1 through 47, inclusive, as though set forth in full.

49. Sportsgrants adopted the Fight Gone Bad mark and used it in

interstate commerce as a means to identify its charity events.

50. Since on or about September 2006, and continually since that time,

Sportsgrants has used the mark Fight Gone Bad to identify its charity events and

to distinguish it from those charity events held by others by, among other things,prominently displaying the Fight Gone Bad mark on Sportsgrants' website and

on promotional items such as t-shirts and hoodies, which participants "earn" by

raising certain amounts o f dollars for charity. In addition, Sportsgrants has used

the Fight Gone Bad mark in company literature and advertising. These goods

and advertising using the Fight Gone Bad mark have been distributed throughout

the United States and beyond.

51. The Fight Gone Bad mark is widely recognized all over the world.

Among other things, participants in the charity event proudly wear the t-shirts and

hoodies earned as a result of successful fundraising efforts and, therefore, the mark

has come to be a symbol of Sportsgrants' global fundraising efforts.

52. Defendants have infringed on Sportsgrants' Fight Gone Bad mark in

interstate commerce by engaging in the acts descr ibed in this Complaint. The use

of the Fight Gone Bad mark by Defendants is without permission or authority o f

Sportsgrants, and such use by Defendants is likely to cause confusion, to cause

mistake and to deceive.

SCHWABE , WILLIAMSON & W YA n , PC Attomeys al Law Pacwest Center

1211 SW 51h Ave., Suile 1900 Portland, OR 97204

Telephone 503.22 2. 9981 Fax 503 .796 ,2900

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53. Defendants' alleged acts of trademark infringement have been

committed with the intent to cause confusion, to cause mistake and to deceive.

54. Sportsgrants has requested that Defendants cease and desist from their

acts of trademark infringement and has given Defendants actual notice of

Sportsgrants' trademark registrations, but Defendants have refused to cease such

acts.

55. Unless enjoined and restrained, Defendants will continue to actively

infringe Sportsgrants' trademark rights.

56. By reason o f Defendants' infringement and threatened infringement,

Sports grants has sustained and will continue to sustain substantial injury, loss anddamage to the ownership rights in its trademarks.

57. Further irreparable harm to Sportsgrants is imminent as a result of

Defendants' conduct, and Sportsgrants is without an adequate remedy at law.

Sportsgrants is entitled to an injunction restraining Defendants, their officers,

directors, agents, employees, representatives and all persons acting in concert with

them from engaging in further such acts o f trademark infringement.

58. Sportsgrants is further entitled to recover from Defendants the

damages sustained by Sportsgrants as a result o f Defendants , acts of trademark

infringement. Sportsgrants is at present unable to ascertain the full extent o f the

monetary damage Sportsgrants has suffered by reason o f Defendants' acts of

trademark infringement. Sportsgrants will seek leave o f this Court to amend this

Complaint to allege the true and correct amount of its damages, including interest,

when they become known and/or Sportsgrants will prove such damages at trial.

59. Sportsgrants is further entitled to recover from Defendants the gains,

profits and advantages they have obtained as a result o f their acts o f trademark

infringement. Sportsgrants is at present unable to ascertain the full extent of the

SCHWABE , WILLIAMSON & W YA n , P .C. Attorneys at Law Pacwest Center

1211 SW 5th Ave ., Su ite 1900 Port land , OR 97204

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gains, profits and advantages Defendants have obtained by reason of their acts of

trademark infringement. Sportsgrants will seek leave of this Court to amend this

Complaint to allege the true and correct amount of its damages, including interest,

when they become known and/or Sportsgrants will prove such damages at trial.

SECOND CLAIM FOR RELIEF

(For Common Law Trademark Infringement Against All Defendants)

60. Sportsgrants incorporates herein by this reference the allegations in


61. Defendants' acts alleged above constitute infringement,misappropriation, dilution, and misuse of Sportsgrants Fight Gone Bad

trademark, conversion of Sports grants , intellectual property and unjust enrichment

of Defendants, all in violation of Sportsgrants' rights under the common law of

Oregon.

62. Defendants' alleged acts of trademark infringement and unfair

competition are likely to cause confusion, to cause mistake and to deceive as to

affiliation, connection or association with Sportsgrants, or as to origin, sponsorship

or approval of others ' services by Sports grants and are likely to dilute the quality

of Sportsgrants' trademark.

63. Defendants' activities have been willful. Defendants' activities have

caused great and irreparable harm to Sportsgrants. Defendants' activities will not

cease unless enjoined by this Court. Sportsgrants has no adequate remedy at law.

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THIRD CLAIM FOR RELIEF

(For Violation of The Lanham Act By Use Of False

Designation Against All Defendants, 15 U.S.C. 1125(a))



65. Defendants threaten to profit from the interstate exploitation o f "Fight

Gone Bad." Such use o f Fight Gone Bad is a false designation o f origin which is

likely to cause confusion, to cause mistake and to deceive as to the affiliation,

connection or association of Defendants with Sportsgrants, and as to the origin,

sponsorship or approval o f such name by Sportsgrants. These acts are in violationof 15 U.S.C. 1125(a), in that Defendants have used in connection with goods and

services a false designation o f origin, a false or misleading description and

representation o f fact which is likely to cause confusion, and to cause mistake, and

to deceive as to the affiliation, connection, or association of defendants with

Sportsgrants and as to the origin, sponsorship and approval o f Defendants' goods,

services and commercial activities by Sportsgrants.

66. By reason o f Defendants , acts alleged herein, Sportsgrants has and

will suffer damage to its business, reputation and good will and the loss o f sales

and profits Sportsgrants would have made but for Defendants' acts. Sportsgrants is

entitled to recover damages for Defendants' actions.

67. Defendants threaten to continue to do the acts complained of herein,

and unless restrained and enjoined, will continue to do so, all to Sportsgrants'

irreparable damage. It would be difficult to ascertain the amount o f compensation

which could afford Sportsgrants adequate relief for such continuing acts, and a

multiplicity o f judicial proceedings would be required. Sportsgrants' remedy at

law is not adequate to compensate it for injuries threatened.

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FOURTH CLAIM FOR RELIEF

(For Violation o f The Lanham Act By Dilution

In Violation Of Federal Anti-Dilution Statute Against All Defendants,

15 U.S.C. 1125(c))



69. Defendants have made commercial use o f a mark owned by

Sportsgrants in connection with charitable events which Defendants have used and

transported in United States interstate commerce. Defendants' acts are in violation

o f Lanham Act 43(c) in that they have caused dilution o f the distinctive quality ofSportsgrants' famous mark Fight Gone Bad, all to the irreparable injury to, and

damage of, Sportsgrants.

70. Defendants' acts have lessened the capacity o f Sports grants' famous

mark to identify and distinguish the charitable events produced and sponsored by

Sportsgrants. Defendants' acts have blurred the unique association which has

heretofore existed between Sportsgrants' Fight Gone Bad mark and the charitable

events promoted and produced by Sportsgrants.

71. Sportsgrants' Fight Gone Bad mark is distinctive and famous. The

Fight Gone Bad mark is inherently strong and distinctive, has long been used in

connection with the events in association with which it appears, has long been the

subject o f substantial advertising and promotion, has been used and advertised

throughout the United States and elsewhere, is widely recognized by consumers

and those in the trade, is in substantially exclusive use, and is federally registered,

as alleged above. The acts o f Defendants alleged in this Complaint were

commenced and committed from a time after Sportsgrants' marks became famous.

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72. Defendants committed these acts willfully and with the intent to trade

on the reputation o f Sportsgrants and to cause dilution o f Sportsgrants' famous

mark.

73. By reason of Defendants' acts alleged herein, Sportsgrants has and

will suffer damage to its business, reputation and good will and the loss o f

charitable donations and profits made by Sports grants. Sportsgrants is entitled to

recover damages for Defendants' actions.

74. Defendants threaten to continue to do the acts complained of herein,

and unless restrained and enjoined, will continue to do so, all to Sportsgrants'

irreparable damage. I t would be difficult to ascertain the amount o f compensationwhich could afford Sportsgrants adequate relief for such continuing acts, and a

multiplicity o f judicial proceedings would be required. Sportsgrants' remedy at

law is not adequate to compensate it for injuries threatened.

FIFTH CLAIM FO R RELIEF

(F or An Accounting Against All Defendants)



76. Sportsgrants is informed and believes and on that basis alleges that,

based upon the actions o f Defendants alleged herein, Defendants have received

money which is due and payable to Sportsgrants.

77. The total amount o f money due from Defendants is unknown to

Sportsgrants and cannot be ascertained without an independent accounting of all

proceeds received by Defendants with respect to the transactions herein alleged.

78. Sportsgrants has demanded an independent accounting from

Defendants regarding the aforementioned acts, but Defendants have failed and

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refused, and continue to fail and refuse, to render an independent accounting and

pay such sum.

WHEREFORE, Plaintiff prays for relief as follows:

FIRST CLAIM FOR RELIEF

(For Trademark Infringement Against All Defendants)

1. That Defendants and their agents, servants, employees, licensees and

all persons acting in concert or participation with them, and each of them, be

enjoined preliminarily and during the pendency of this action, and permanently

thereafter; from:a. Infringing Sportsgrants' trademark; and

b. Producing, manufacturing, adapting, marketing, advertising,

selling, distributing, promoting, licensing, exhibiting or

displaying or using in any manner Sportsgrants' trademark in

connection with any charity event.

2. That Defendants be required to account for and pay over to

Sportsgrants all gains, profits and advantages which they have derived from their

infringement of Sportsgrants' trademark; alternatively, and at Plaintiff's election,

for statutory damages pursuant to 15 U.S.C. 1117( c) up to $2 million per

counterfeit mark per type of goods or services sold, offered for sale, or distributed

by Defendants.

3. That Defendants be required to pay such relief to Sportsgrants as this

Court deems just and proper.

SCHWABE , WILLIAMSON &W YA n , P .C. Attorneys at Law Pacwest Cen ter

1211 SW 5th Ave ., Suite 1 90 0 Portland , OR 9 7 2 0 4

Telephone 503.222 .9961 Fax 503 .796 .2900

Page 17 - COMPLAINT

PDXl11980211638011MAC / 8887676.J



18/22

SECOND CLAIM FO R RELIEF

(For Common Law Trademark Infringement Against All Defendants)




thereafter; from:

a. Infringing Sportsgrants' trademark; and



displaying or using in any manner Sportsgrants' trademark inconnection with any charity event.

5. That Defendants be required to account for and pay over to

Sportsgrants all gains, profits and advantages which they have derived from their

infringement of Sportsgrants' trademark.



THIRD CLAIM FOR RELIEF

(For Violation of The Lanham Act For False Designation

Against All Defendants)




thereafter, from:

a. Infringing Sports grants trademark;

SCHWABE. WILLIAMSON & WYAn. PC Attorneys at Law Pacwest Center

1211 SW 5th Ave . Suite 1900 Portland , OR 97204

Telephone 503.222 .9981 Fax 503 .796 .2900

Page 18 - COMPLAINT

PDXllI9802 / 163801IMAC /8887676.1



19/22



displaying or using in any manner Sportsgrants' trademark in

connection with charity events;

c. Competing unfairly with Plaintiff in any manner.

8. That Defendants be required to account for all gains, profits and

advantages which they have derived from their infringement o f Sports grants ,

trademarks.

9. That Plaintiff be awarded Defendants' profits, treble Plaintiffs

damages, together with prejudgment and post-judgment interest, and reasonableattorney's fees and costs o f suit.



FOURTH CLAIM FO R RELIEF

(F or Violation of The Lanham Act By Dilution

Against All Defendants)



enjoined preliminarily and during the pendency o f this action, and permanently

thereafter, from using the name "Fight Gone Bad", or any other mark, word, or

name similar to Plaintiffs mark which are likely to cause confusion, mistake or to

deceive.

12. That Defendants be required to account to Plaintiff for any and all

profits derived by Defendants from the sale of their goods and for all damages

SCHWABE , WILLIAMSON & WYATT, PC Attorneys at Law Pacwest Center

t211 SW 5th Ave., Suit e 1900 Portland , OR 97204

Telephone 503.222 .9981 Fax 503 .796 .2900

Page 19 - COMPLAINT

PDXll19802/163801 / MAC / 8887676 1



20/22

sustained by Plaintiff by reason of said acts of infringement and unfair competition

complained of herein.

13. That Plaintiff be awarded Defendants' profits, treble Plaintiffs

damages, together with prejudgment and post-judgment interest, and reasonable

attorney's fees and costs of suit.

14. That Defendants be required to pay such other relief to Plaint iff as this


FIFTH CLAIM FOR RELIEF

(For Accounting Against All Defendants) 15. F or a complete accounting of all gains, profits and advantages derived

by Defendants from their wrongful acts.

ON ALL CLAIMS

(Against All Defendants)

16. F or attorneys' fees incurred herein pursuant to the Lanham Act.

17. For costs of suit and disbursements.

18. For such other relief as this Court deems just and proper.

SCHWABE , WILLIAMSON & WYAn, PCAtlomeys at Lawage 20 - COMPLAINTPacwest Center

1211 SW5thAve., Suite 1900 Portland, OR 97204

Telephone 503 .22 2.9981 Fax 503 .796 .2900

PDXll19802 / 163801fMAC/8887676I



21/22

Plaint iff requests trial by jury on all i ssues so triable.

Dated this 3rd day o f February, 2012.

Respectfully submitted,

SCHWABE, WILLIAMSON & WYATT,P.C.

By: ILL/J ~ JMichael A. Cohen, OSB # 965776Matthew R. Wilmot, OS B #061936Telephone 503.222.9981

Of Attorneys for Plaintiff, Sports grants, Inc.

SCHWABE, WILLIAMSON & W YA n , PCAttomeys at Lawage 21 - COMPLAINTPacwest Center

1211 SW 5th Ave ., Su ite 1900 Portland, OR 97204

Telephone 503 .222 ,9981 Fax 503.796 .2900

PDXl119802/1638011MAC /8887676.1



22/22

VERIFICATION OF COMPLAINT

I, Scott Zagarino, am the Chief Executive Officer of Sportsgrants, Inc., and am

authorized to execute this Verification in that capacity. I have read the foregoing

Complaint, and verify that the factual allegations therein are true and correct, and as

to those allegations alleged on information and belief, I believe them to be true and

correct.

I declare under penalty of perjury under the laws of the United States and the

State of Oregon that the foregoing is true and correct. Executed this Z day of

February, 2012, at Portland, Oregon.

t bhief Executive Officer,

Sportsgrants, Inc.


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