Documentos de Académico
Documentos de Profesional
Documentos de Cultura
Mark
8. The FIRST DESCENTS
program is
limited to 15 campers, helping to ensure individualized care, medical attention and an intimate
experience with fellow cancer survivors. The FIRST DESCENTS
that issued March 11, 2003 for a motivational kayak sports camp for
people with cancer. The first camp occurred in August 2001. A copy of the registration
certificate for the FIRST DESCENTS
Mark) is attached
hereto as Exhibit A.
11. Since 2001, First Descents has been using its FIRST DESCENTS
Mark in
providing and promoting the camp programs, and on various items of apparel that have been
provided to participants, counselors and volunteers in the camp programs, worn by adventure
athletes raising awareness of the organization, and sold to supporters of the non-profit to
generate funds for the organization. In the ten years since the first camp program, thousands of
items bearing the FIRST DESCENTS
outdoor camp experience for young adults fighting cancer when Defendant filed its trademark
applications in 2008 for FIRST ASCENT and FIRST DESCENT.
36. Upon information and belief, Defendant was aware of Plaintiffs 2001 use of its
FIRST DESCENTS
camps. Indeed, consumers have contacted First Descents and asked why Eddie Bauer has put
your name on their apparel.
48. As another example of consumer confusion, on August 3, 2011, Brad Ludden and
a First Descents board member had finished a training ride in Leadville, Colorado for the
Leadville 100 bike race. Several fellow riders, one of whom was a cancer survivor familiar with
the First Descents organization, were in the same parking lot with the team FIRST DESCENTS
riders and noticed their FIRST DESCENTS bike jerseys. Another rider mistakenly associated
the team FIRST DESCENTS riders as running those climbing camps with the clothing
company rather than First Descents outdoor adventure camps for young adult cancer
survivors.
49. The parties advertise and promote their respective goods and services in the same
publications, at the same venues, and at the same industry events. The parties respective
sponsored teams compete under the marks FIRST ASCENT and FIRST DESCENTS at the same
outdoor events. For example, advertising contained in recent 2010 and 2011 issues of Outside
Magazine, a leading national publication, demonstrates that both Eddie Bauer and First Descents
both engage in advertising and promotion using the marks FIRST ASCENT, FIRST DESCENT
Case 1:11-cv-02051-CMA-MEH Document 6 Filed 08/10/11 USDC Colorado Page 11 of 19
12
and FIRST DESCENTS and that they often appear on the very same page as sponsors of events.
See Exhibit D hereto (OUTSIDE magazine June 2011 Weekend-Warrior Alert and December
2010 ads).
50. Defendants conduct as described herein, including its infringing use in interstate
commerce and registration of the confusingly similar FIRST DESCENT and FIRST ASCENT
marks (Defendants Conduct) is subsequent to First Descents use of its FIRST DESCENTS
Mark.
51. Defendants Conduct has caused consumer confusion and continues to cause
consumer confusion, in violation of First Descents prior and valuable trademark rights.
52. Defendants Conduct has damaged First Descents by creating an erroneous
impression of an affiliation or sponsorship between Eddie Bauer and First Descents, and has
impaired its ability to attract actual corporate sponsors and partners that is necessary to raise
funding for the outdoor adventure cancer camp experiences and increase the awareness of the
FIRST DESCENTS
programs.
53. Defendants Conduct, despite First Descents objections, continues to damage
First Descents by impairing its fund raising ability by creating the erroneous impression that the
FIRST DESCENTS fund raising sport teams are sponsored by Eddie Bauer, and not independent
teams that seek to raise funds for the camps from members of the public whose financial support
of the cancer camp efforts is critical to its continued success. [FIRST DESCENTS team fund
raising efforts are shown on its website at http://teamfd.firstdescents.org/teamdirectory.aspx].
54. Defendants Conduct, despite First Descents objections, continues to damage
First Descents by creating the potential for reverse confusion in that consumers would believe
that Eddie Bauer is the senior user of the FIRST DESCENTS
Mark, as depicted in the attached Exhibit A. Defendants Conduct as alleged herein constitutes a
willful and knowing attempt to trade on the goodwill which First Descents owns and has
developed in the FIRST DESCENTS
Mark.
58. Defendants Conduct is likely to cause confusion, or to cause mistake, or to
deceive the purchasing public and others, leading them to mistakenly believe that Defendants
good and services are authorized by Plaintiff or that Plaintiffs goods and services are authorized
by Eddie Bauer.
59. Defendants Conduct is likely to cause confusion, or to cause mistake, or to
deceive the purchasing public and others, leading them to mistakenly believe that Defendants
goods are those of First Descents, or vice versa, in violation of 15 U.S.C. 1114(1).
60. Defendants Conduct has caused and, unless restrained and enjoined by this
Court, will continue to cause irreparable harm, damage, and injury to First Descents as described
herein.
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14
61. First Descents has no adequate remedy at law.
COUNT II
(Unfair Competition Under 15 U.S.C. 1125 (a) )
62. First Descents hereby re-alleges and incorporates by this reference the preceding
paragraphs as if fully set forth herein.
63. Defendants Conduct as alleged herein is likely to cause confusion, mistake, or
deception as to origin, sponsorship, or approval of its goods sold and services provided under the
infringing FIRST ASCENT and FIRST DESCENT marks, and create consumer confusion as to
the source of such goods and services, in violation of Section 43(a) of the Lanham Act, 15
U.S.C. 1125(a). Defendants Conduct constitutes a willful and knowing attempt to trade on the
goodwill which First Descents has developed in its FIRST DESCENTS
Mark, and is thereby likely to confuse and deceive members of the purchasing
public as to the source of the First Descents goods and services as a result of Defendants use of
the infringing FIRST ASCENT and FIRST DESCENT marks. By virtue of Defendants
Conduct, Defendant has engaged in unfair competition in violation of the common law of the
state of Colorado.
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16
74. Defendants Conduct also constitutes intentional, willful, and reckless disregard
of First Descents rights by Defendant and an attempt to trade on the goodwill which First
Descents has developed, all to the damage of First Descents.
75. As a result of Defendants Conduct, Defendant has caused and, unless restrained
and enjoined by this Court, will continue to cause irreparable harm, damage, and injury to First
Descents.
76. First Descents has no adequate remedy at law.
COUNT V
(Claim for Cancellation of U.S. Reg. Nos. 3,934,798 3,970,936 and 3,974,941)
77. First Descents hereby re-alleges and incorporates by this reference the preceding
paragraphs as if fully set forth herein.
78. This is a claim for cancellation of U.S. Reg. Nos. 3,934,798 3,970,936 and
3,974,941.
79. First Descents owns U.S. Reg. No. 2,695,260 for the mark FIRST DESCENTS
and U.S. trademark application serial no. 77/576914 for the mark FIRST DESCENTS.
80. First Descents began using its mark FIRST DESCENTS with apparel as early as
2001.
81. Defendant Eddie Bauer Licensing Services, LLC is listed as the owner of U.S.
Reg. Nos. 3,934,798 3,970,936 3,974,941 on the records of the USPTO.
82. Defendants use of the FIRST ASCENT and FIRST DESCENT marks was at
least seven years after First Descents use of FIRST DESCENTS.
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17
83. As alleged herein, Defendants use of the FIRST ASCENT and FIRST
DESCENT marks create consumer confusion and a false connection, association or affiliation
with First Descents, in violation of 15 U.S.C. 1114(1) and 1125(a).
84. As alleged herein, the FIRST DESCENT and FIRST ASCENT marks used by
Defendant are confusingly similar to Plaintiffs FIRST DESCENTS Mark, and the continued
registration of U.S. Reg. Nos. 3,934,798 3,970,936 and 3,974,941 is inconsistent with First
Descents federal and common law rights in its FIRST DESCENTS Mark, and is damaging to
First Descents.
85. First Descents seeks cancellation of U.S. Reg. Nos. 3,934,798 3,970,936 and
3,974,941 under 15 U.S.C. 1119.
Relief Sought
WHEREFORE, First Descents asks this Honorable Court to:
A. Grant permanent injunctive relief enjoining Eddie Bauer and any principals,
agents, servants, employees, successors, and assigns of Defendant and all those in privity,
concert, or participation with such Defendant from:
(i) imitating, copying, duplicating, or otherwise making any use of the FIRST
DESCENTS mark or any mark confusingly similar to the FIRST DESCENTS mark;
(ii) manufacturing, producing, distributing, circulating, selling, or otherwise
creating goods which bears any copy or colorable imitation of the FIRST DESCENTS mark;
(iii) using any unauthorized copy or colorable imitation of the FIRST
DESCENTS mark in such fashion as is likely to relate or connect Eddie Bauer with First
Descents;
(iv) using any false designation of origin or false description which can or is
likely to lead the trade or public, or individual members thereof, to believe mistakenly that any
Case 1:11-cv-02051-CMA-MEH Document 6 Filed 08/10/11 USDC Colorado Page 17 of 19
18
goods or service advertised, promoted, offered, or sold by Defendant is sponsored, endorsed,
connected with, approved, or authorized by First Descents;
(v) causing likelihood of confusion or injury to First Descents business
reputation and to the distinctiveness of the FIRST DESCENTS mark by unauthorized use of a
confusingly similar mark;
(vi) engaging in any other activity constituting unfair competition or
infringement of the FIRST DESCENTS mark or First Descents rights in, or to use, or to exploit
the same;
(vii) assisting, aiding or abetting another person or business entity in engaging
or performing any of the activities enumerated in subparagraphs (i) through (vi) above.
B. Find that Defendant has infringed Plaintiffs FIRST DESCENTS mark in
violation of federal law and has damaged First Descents goodwill by its conduct.
C. Find that Defendant has unfairly competed with First Descents by the acts
complained of herein in violation of federal law.
D. Find that the acts of Defendant constitute trademark infringement in violation of
the common law of the state of Colorado.
E. Find that the acts of Defendant constitute unfair competition in violation of the
common law of the state of Colorado.
F. Find each Defendant jointly and severally liable, and award to First Descents
monetary damages in an amount to be fixed by the Court in its discretion as just, including all of
each Defendants profits or gains of any kind resulting from its willful infringement and/or acts
of unfair competition, said amount to be trebled, and exemplary damages in view of the
intentional nature of the acts complained of herein, pursuant to 15 U.S.C. 1117.
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19
G. Order the cancellation of U.S. Reg. Nos. 3,934,798 3,970,936 and 3,974,941
pursuant to 15 U.S.C. 1119.
H. Award Plaintiff its attorneys fees and costs, and award such fees under 15 U.S.C.
1117 due to the exceptional nature of this case.
I. Award to First Descents exemplary damages in view of the intentional, willful,
wanton and reckless disregard of its rights by Defendant.
J. Grant to First Descents such other and further relief as the Court may deem just,
proper, and equitable under the circumstances.
PLAINTIFFS DEMAND A TRIAL BY JURY ON ALL ISSUES SO TRIABLE.
Respectfully submitted this 10
th
day of August, 2011.
By: s/ Gayle L. Strong
Gayle L. Strong
GREENBERG TRAURIG LLP
1200 Seventeenth Street, Suite 2400
Denver, CO 80202
(303) 572-6500
strongg@gtlaw.com
ATTORNEYS FOR PLAINTIFF
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C-1
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Home
Schedule
Activities
Aspen/Lodging
Register
Partners
ActivitiesjjPartiesjjWorkshopsjjBase Camp
Learn a new sport or take your passion to a new level
We have enlisted Aspen s top outfitters and brought in elite athletes in every area to guide you to the top of your game
Activities includc kayaking, stand-up paddling, road biking, mountain biking, trail running, and rock climbing
,For details on all outfitter-led activities, click here.
Pro adventure athletes and personalities
Mountaineering witlt Ryan Sutter, Bachelorette cele brity, model, TV personality, and First Descents athlete
Cycling with Tyler Hamilton, three-time world champion and Tour de France team member
Hiking and Climbing with Melissa Arnot, fi""t W"st"rn wo",." to 1]111111h thl"" tim"nd .Jak"
Norton, famed Everest Guide
Adventure Filmmaking with Michael Brown who has summitcd Everest five timcs and von three Emmys,
including for Farther Than The Eye Can See, the story of blind climber Eric Weihen mayersEverest climb
Adventure Photography with photographer, storyteller, and film maker Pete McBride. Pete shoots all over
the world for Outside and National Geographic. For details and to register, click here
Stand-up river paddling with Charlie MacArthur who is a pioneer in the sport as well as an award-winnill)!;
kayaker with numerous first descents to his credit
Kayak in g with pro kayaker Brad Ludden, founder of First Descents, a non-prot1t dcdicated to hclpinA canecr
victims through outdoor activity, Mark Snowy" Robertson, head designer, and Ben
Ascent pro athlete.
>For details on all outfitter-led activities, click here.
Asp en Triathlon, Saturday Jlule 11.
For details click here
Adventure Base Camp is the heart of Outside In Aspen
Meet here to in, meet up with your outfitter, or just to hang out. You'll find exhibits, and (I cnl os frol11
our exhibitors and pa rt1lers; free adventure dog workshops and refreshmcnts tllronghout the weckcnd. And mcet llcrc
on Sunday at 3 for the Adventure Symposiu m, featuring top athletes in a candid conversation about world of
adventure sports Map ofAdventure Base Camp-
Great Gear Expe r ie n ce. Check out all the top gear for 2011, selected and tested by Outsides
editors and gear testers and featured in the spring 2011 Outside Gnide 1'ro m bikcs and tents and to bags
and boats, this is your chance to preview Outsides Gear ofthe Year
The Great Gear Giveaway. WeII be holding a drawing for all the Gear of the Year on display. Just make a
donation of $10 or more to First Descents and your name will be entered into the drawing. The
winners will be announced after the Adventure Symposium at 4pm on Sunday. You must be present to win, no
Quick Links
Go \/\li th a Pro
Ryan Sulter Bio
Tyler Hamilton
Chris Davenport
Michael Brown
Peter McBride
Brad Ludden Bio
Charlie MacArthur Bio
Megan Lund Bio
As pen Triathlon
Adventure Base Camp
Great Gear Experience and Giveaway
Kid's Camp
Music Stage
Exhibits and Demos
Epic Parties
Symposium
Base Camp Map
Outside InAs pen Site Map
Register for Outside InAs pen
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Adventure Symposium. FREE. Meet at Adventure Base Camp at 3 on Sunday for a lively and rivcting
discussion among elite athletes on the current state of adventure sports, moderated by OUtsidc cditors
Elizabeth Hightower, Abe Streep, and Ryan
Topic: The Outer Lim it s : the Risks and Rewards of Ext r e m e Adventure. : Melissa Arnot, Michael
Brown, Nick DeVore , Brad Ludden, and Ben (see athlete bios)
Doors open at 2 :30. Seating is limited. Symposium starts pro mptly at 3
Ki ds Nature Cornel'. We will have great kids and family nature activities, providcd by ACES (Aspcn Ccntcr for
Environ mental Studies)
Music Stage. Free. Colorado favorite, Salem," 2-5 pm on Saturday, June nth. www.salem-music.com
Adventure Dog Demonstration. Led by trainer Mike Stewart of Wild Rose Kennels. ThrougllOut tllC
day, Saturday,June nth
Star Gaziug. Free. Provided by Celestrou. See Schedule
Outward Bouud Ute Trail Voluuteer Restoration Project. Sunday, June 12th 10 am- 2 pm. Meet at thc
Outward Bound Tent in Basecamp at 9:30 am. Advance rcquircd at tllC Outward llound booth at
Basecamp Parents must sign waiver for any participants under 18 www.outwardbound.ore Contact: Katic
Loughran 415-994-2178
Free yoga classes at 8 and 11 am with Aspen Yoga
Birkenstock Recovery Lounge. Relax and soothe tired muscles at the Birkenstock Recovcry wllcrc
Birkenstock will be showcasing the latest styles and offcring personal t1tting,s, bar scssions,
co mplimentary sports massage and energy boosting smoothies
Epic Parties
Wc1con,c Party presented by Eddie BauerjFirstAscent. Friday 8-midnight: Join elite athletes, Outside
personalities and a top DJ at the upstairs deck atthe Sky Hotel for musi e,drinks, and appetizers
ApICS Pool Party presented by Birkenstock. Saturday 5-8: Soothe those tired muscles with a swim and a soak
and a sip at the Apres Party, poolside at the Sky Hote l. Music, drinks, appctizcrs, elite athletes and Outsidc
personalities.
Belly up Afte r Party, 10-1: The Belly Up is thc ultimate music vcnue. Grab a friend and join thc fun.
Ailc1itional cost. To purchase tickets, click here
Parties, except Belly Up After Party, are free with registration for at least one activity. Check back
often for updates.
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Partners
leave no trace
Home
Schedule
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A K LEY'
U PTO N HO fFl
in W"""'''Y Tr"J;t;on 1774
get outdoor
Quick Li n ks
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for Outside In Aspen
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ADVENTURE
FILMSCHOOL
r
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t
l
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L
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ASPEN
O$pe r1
aspen yoga society
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EXHIBIT C-2
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OUTSIDE IN ASPEN
SCHEDULE OFEVENTS
Colorado non-profit.. First Descents..
Friday, June 10, 2011
Welcome Party
8pm
The Sky Hotel
709 East Durant Ave /
\ /
\ /
Join event hosts Outside Magazine Aspen Chamber Resort Association at Aspen's
Sky Hotel for t he Out side in Aspen" off pm. EnjoycomplimentapV
cocktails and hors more
- - - - - - --
Event who make a donation
http://www.firstdescents.org/ wi ll be entered into a prize drawing for great gear from Outside
in Aspen sponsors.
Sat urday, June 11, 2010
Adventure Base Camp
8am -5 pm
Aspen Mountain Gondola Plaza
685 East Durant Ave
,( Eddie First Ascent.. )
,
,
Itsall happening at Base Camp, adventu/e for "Outside in
guides for outdoor adventures from 9 aln - 2 pm in Rafting, Stand k
and other sponsors
Take out Eddie Bauer First Ascent gear for a test drive on your activities, star gaze with
Celestron and mingle wit h pro adventure ath letes, photographers and f ilmmakers. Check out
the all- new Demo Village with interactive displays from outdoor product manufacturers.
new t his year is t he Kids Camp" , Advent ure DogClinics", Live Music Stage and locally grown
Colorado Food Concessions.
Sat urday, June 11, 2011
Apres Pool Party
5 pm-8pm
The Sky Hotel
330 East Main Street
After a day of outdoor fun and adventu re, head to t he Sky Hotels happeni ng pool scene for t he
Pool Party. Kick backa nd enjoy DJ music, specialty drinks and snacks, a dip i n the pool or
hot tub, or j ust chill on t he lounge furniture and fi re areas. More Sponsor gear wi ll be given
away in will abound
-
- -
\ 1 -
..(First ]
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Sat urday, June 11, 2011
After Party and Concert
Doors open at 8:30 pm, Show starts at 9:30 pm
Belly Up Aspen
450 South Galena Street
Check back for more i nformati on!
( Eddie Ba r Fi rst
Take out Eddie Bauer First Ascent gear for a test drive on your activities, star gaze with
Celestron and mingle wit h pro adventure athletes, photogra phers and f ilmma kers. Check out
the all- new Demo Village with i nteractive displays from outdoor product manufacturers. Also
new th is year is the Kid s Camp" , Advent ure Dog Clinics" , Live Music Stage and locally grown
Colorado Food Concessions.
SundaYI June 12,2011
Advent ure Panel Discussion - BaseCamp
2 pm-4pm
Aspen Mountain Gondola Plaza
685 East Durant Ave
Outside i n Aspen presents a panel of adventure at hletes discussing i nspirationa I topics from
their adventures i n Big Mou ntai n and Rock Climbing, Kayaking, Mou ntain Biking, Adventure
Filmma ki ng and and more. Outside Magazine editors will moderate the
discussions and questions from t he audie nce. Afterwards participants can enjoy autogra ph
signings with t he pro athletes and more Base Camp fu n and giveaways
Check back fo r top ics and at hlete bios soon!
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EXHIBIT D
Case 1:11-cv-02051-CMA-MEH Document 6-5 Filed 08/10/11 USDC Colorado Page 1 of 5
PROMOTION
WEEKEND-WARRIOR ALERT:
2011
ROAD-BIKE WITH OLYMPIC
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JUNE 10-12,
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ACTIVITIES ONLY $109t//
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SPEND THE WEEKEND
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*INCLUDESTWO PARTIES ANDAN INSPIRING ADVENTURE-ATHLETE SYMPOSIUM AND PANEL DISCUSSION. FLY-FISHINGHASASURCHARGE; ASPEN ADVENTURE
FILMMAKERSWORKSHOPRUNS JUNE 9-12 AND HASADDITI ONALCOSTS. ADVENTUREFILMSCHOOL.COMjASPEN_2011. MICHAEL BROWN PHOTO: PETERMCBRIDE.
Case 1:11-cv-02051-CMA-MEH Document 6-5 Filed 08/10/11 USDC Colorado Page 2 of 5
F
ST
Founded by professional kayaker, Brad Ludden, First Descents offers
young adults with cancer a FREE week-long outdoor adventure as
a form of therapy to heal the psychosocial scarring left behind after
their diagnosis. In one week on the water or on the rock, participants
transcend their diagnosis and reclaim their lives from cancer.
volunteer, donate, participate, attend: FirstDescents.org
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