Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`Sound United, LLC,
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`Plaintiff,
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`v.
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`Amazon Seller “audio video sales guy,”
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`Defendant.
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`____________________________________)
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`Case No. 19-cv-12541
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`JURY TRIAL DEMANDED
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`COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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`Plaintiff Sound United, LLC d/b/a Denon, Polk Audio, Marantz, Definitive Technology,
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`Heos, Boston Acoustics, and Classé (“Sound United” or “Plaintiff”), as and for its Complaint
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`against Defendant Amazon Seller “audio video sales guy” (“Defendant”), alleges upon personal
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`knowledge as to its own acts and as to events taking place in its presence, and upon information
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`and belief as to all other facts, as follows:
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`NATURE OF THIS ACTION
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`1.
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`Sound United seeks injunctive relief and monetary damages for Defendant’s
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`trademark infringement under the Lanham Act, 15 U.S.C. § 1051, et seq., as well as related state
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`law claims arising from Defendant’s improper sale of Sound United Products, use of trademarks
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`owned and used by Sound United, and unfair and deceptive business practices.
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`2.
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`As described in more detail below, Defendant has and continues to sell materially
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`different Sound United products through online commerce sites, including, but not limited to,
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`Amazon.com. Defendant’s conduct has produced and, unless enjoined by this Court, will
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`____________________________________
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`Sound United, LLC,
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`)
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`)
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`Plaintiff,
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`)
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`
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`
`
`)
`v.
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`)
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`
`)
`)
`Amazon Seller “audio video sales guy,”
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`
`
`
`
`)
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`Defendant.
`
`
`
`)
`____________________________________)
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`Case No. 19-cv-12541
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`JURY TRIAL DEMANDED
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`
`
`
`
`
`
`
`
`
`
`
`COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES
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`Plaintiff Sound United, LLC d/b/a Denon, Polk Audio, Marantz, Definitive Technology,
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`Heos, Boston Acoustics, and Classé (“Sound United” or “Plaintiff”), as and for its Complaint
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`against Defendant Amazon Seller “audio video sales guy” (“Defendant”), alleges upon personal
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`knowledge as to its own acts and as to events taking place in its presence, and upon information
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`and belief as to all other facts, as follows:
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`NATURE OF THIS ACTION
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`1.
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`Sound United seeks injunctive relief and monetary damages for Defendant’s
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`trademark infringement under the Lanham Act, 15 U.S.C. § 1051, et seq., as well as related state
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`law claims arising from Defendant’s improper sale of Sound United Products, use of trademarks
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`owned and used by Sound United, and unfair and deceptive business practices.
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`2.
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`As described in more detail below, Defendant has and continues to sell materially
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`different Sound United products through online commerce sites, including, but not limited to,
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`Amazon.com. Defendant’s conduct has produced and, unless enjoined by this Court, will
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 2 of 17
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`continue to produce a likelihood of consumer confusion and deception, to the irreparable injury
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`of Sound United.
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`3.
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`As a result of Defendant’s actions, Sound United is suffering a loss of the
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`enormous goodwill that Sound United has created in its trademarks and is losing profits from lost
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`sales of products. This action seeks permanent injunctive relief and damages for Defendant’s
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`infringement of Sound United’s intellectual property rights.
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`4.
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`Further, this case concerns Defendant’s wrongful, unauthorized promotion and
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`sale of Sound United Products on the Internet and through online commerce sites including, but
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`not limited to, Amazon.com. As described more fully below, upon information and belief,
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`Defendant has tortiously interfered with and intentionally induced the breach of Sound United’s
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`contractual relations with one or more of its Authorized Resellers.
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`JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over the subject matter of this Complaint pursuant to
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`15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338(a) and (b), as these claims arise under the
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`Trademark Laws of the United States.
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`6.
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`This Court has supplemental jurisdiction over the pendant state law claims
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`pursuant to 28 U.S.C. § 1367(a).
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`7.
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`Defendant
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`is subject
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`to personal
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`jurisdiction
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`in
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`the Commonwealth of
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`Massachusetts and this District pursuant to Mass. Gen. Laws ch. 223A §3 because (a) Defendant
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`has sold numerous products into the Commonwealth and this District; (b) Defendant has caused
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`tortious injury to Sound United’s trademarks within the Commonwealth and this District; (c)
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`Defendant practices the unlawful conduct complained of herein, in part, within the
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`Commonwealth and this District; (d) Defendant regularly conducts or solicits business within the
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 3 of 17
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`Commonwealth and this District; (e) Defendant regularly and systematically directs electronic
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`activity into the Commonwealth and this District with the manifest intent of engaging in business
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`within the Commonwealth and this District, including the sale and/or offer for sale to Internet
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`users within the Commonwealth and this District; and (f) Defendant enters into sales contracts
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`with residents of the Commonwealth and this District through the sale of items on various online
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`retail platforms and in Internet auctions.
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`8.
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`Venue is proper in the United States District Court for the District of
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`Massachusetts pursuant to 28 U.S.C. § 1391 because a substantial part of the events or omissions
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`giving rise to this claim occurred in this District.
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`PARTIES
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`9.
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`Plaintiff Sound United, LLC d/b/a Denon, Polk Audio, Marantz, Definitive
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`Technology, Heos, Boston Acoustics, and Classé is a Delaware Limited Liability Company
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`having its principal place of business at One Viper Way, Vista, California 92081. Sound United
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`is a home theater and audio/video products manufacturer and its media products are marketed
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`and sold in the United States of America under the Denon, Polk Audio, Marantz, Definitive
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`Technology, Heos, Boston Acoustics, and Classé brands (collectively, the “Sound United
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`Brands,” and the products sold under the Sound United Brands are collectively referred to as the
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`“Sound United Products”).
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`10.
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`Upon information and belief, Defendant Amazon Seller “audio video sales guy” is
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`an Amazon third party reseller, and does business and has done business and sold products,
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`including Sound United Products, to customers within the Commonwealth of Massachusetts and
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`this District through various online commerce sites, including, but not limited to, Amazon.com,
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 4 of 17
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`using seller names, including, but not limited to, “audio video sales guy.” Defendant is an
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`unauthorized dealer of Sound United Products.
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`FACTS
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`Sound United’s Trademark Usage
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`11.
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`Sound United’s products are sold under a variety of trademarks registered at the
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`U.S. Patent and Trademark Office (“PTO”). Sound United is the sole and exclusive owner
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`and/or licensee of several federally registered trademarks on the PTO’s Principal Register.
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`These marks have been in continuous use since at least their respective date of registration. True
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`and correct copies of printouts from TESS evidencing these registrations are attached hereto as
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`Exhibit 1. Said registrations are in full force and effect, and most of these marks are
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`incontestable pursuant to 15 U.S.C. § 1065. The marks contained in Exhibit 1 are referred to
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`collectively as the “Sound United Marks.” The Sound United Marks are set forth below:
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`Mark
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`Reg. Date
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`Reg. No.
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`DENON
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`POLK AUDIO
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`MARANTZ
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`July 28, 1998
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`2,176,147
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`November 18, 2008
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`3,533,922
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`February 14, 1989
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`1,538,024
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`DEFINITIVE TECHNOLOGY
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`April 7, 1992
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`HEOS
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`June 16, 2015
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`BOSTON ACOUSTICS
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`August 28, 1984
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`CLASSÉ
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`July 11, 2006
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`1,681,827
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`4,756,918
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`1,291,939
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`3,113,681
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`12.
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`Sound United advertises, distributes, and sells its products to consumers under the
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`Sound United Marks.
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`13.
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`Sound United has also acquired common law rights in the use of the Sound
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`United Marks throughout the United States.
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`14.
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`Sound United’s federal trademark registrations were duly and legally issued, are
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`valid and subsisting, and constitute prima facie evidence of Sound United’s exclusive ownership
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`or license of the Sound United Marks.
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`15.
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`Sound United has invested many millions of dollars and has expended significant
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`time and effort in advertising, promoting, and developing the Sound United Marks throughout
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`the United States and the world. As a result of such advertising and promotion, Sound United
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`has established substantial goodwill and widespread recognition in its Sound United Marks, and
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`those marks have become associated exclusively with Sound United and its products by both
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`customers and potential customers, as well as the general public at large.
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`16.
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`To create and maintain such goodwill among its customers, Sound United has
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`taken substantial steps to ensure that products bearing its Sound United Marks are of the highest
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`quality. As a result, the Sound United Marks have become widely known and are recognized
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`throughout the United States and the world as symbols of high quality products.
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`17.
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`As a result of, inter alia, the care and skill exercised by Sound United in the
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`conduct of its business, the high quality of the goods sold under the Sound United Marks, and the
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`extensive advertising, sale, and promotion by Sound United of its products, the Sound United
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`Marks have acquired secondary meaning in the United States and the world, including this
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`District.
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`18.
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`Sound United is not now, nor has it ever been, affiliated with Defendant, and has
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`not now, nor has it ever, given Defendant permission to use any of the Sound United Marks.
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 6 of 17
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`Sound United’s Authorized Reseller Network
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`19.
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`Another critical investment that Sound United has made to ensure that the Sound
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`United Products are of the highest quality is the development of a nationwide network of
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`authorized distributors (“Authorized Distributors”) and authorized dealers (“Authorized
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`Dealers,” and collectively with Authorized Distributors, “Authorized Resellers” and the
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`“Authorized Reseller Network”).
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`20.
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`As a prerequisite to becoming part of the carefully selected Authorized Reseller
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`Network, Sound United 1) requires that its Authorized Distributors execute an agreement (the
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`“Authorized Distributor Agreement”), which requires that such Authorized Distributors only sell
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`to Sound United Authorized Dealers; and 2) requires that its Authorized Dealers execute an
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`agreement (the “Authorized Dealer Agreement”), which requires that such Authorized Dealers
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`follow specific quality controls and allows it to sell Sound United Products only to end-users and
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`only at the locations and websites designated in the Authorized Dealer Agreement. The terms of
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`the Authorized Dealer Agreement also prohibit the transshipment, diversion, or transfer of any
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`Sound United Products to any other party. Furthermore, as part of its normal business dealings
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`with its Authorized Reseller Network, Sound United prohibits its Authorized Resellers from
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`transshipping Sound United Products to unauthorized resellers.
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`21.
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`Sound United’s requirement that each of its Authorized Resellers agree not to
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`transfer any Sound United Products to any other unauthorized party is well known in the retail
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`industry, particularly among retailers of audio products. Upon information and belief, Defendant
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`was aware of this prohibition at all relevant times, and, especially after Sound United provided
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`Defendant with numerous notices of the prohibition.
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 7 of 17
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`22.
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`Further, only Sound United Products purchased from an Authorized Reseller
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`qualify for the corresponding Sound United Brand’s warranty and are supported by the customer
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`service of its Authorized Reseller Network.
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`23.
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`Sound United has invested and has expended significant time and effort in
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`advertising, promoting, and developing its Authorized Reseller Network. As a result of such
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`advertising and promotion, Sound United has established substantial goodwill and widespread
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`recognition in the Sound United Products, which have become associated exclusively with
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`Sound United by both customers and potential customers, as well as the general public at large.
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`Defendant’s Infringing and Improper Conduct
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`24.
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`Defendant has sold and is currently selling Sound United Products on various
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`online commerce sites including, but not limited to, Amazon.com, using seller names, including,
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`but not limited to, “audio video sales guy.” Defendant sells a variety of audio/video products.
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`25.
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`Defendant offers for sale and sells Sound United Products on the Internet using
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`the Sound United Marks.
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`26. Many of the Sound United Products that Defendant sells online through
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`Amazon.com are advertised as being in “new” condition.
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`27.
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`Examples of Defendant’s product listings utilizing the Sound United Marks,
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`include, but are not limited to, the following:
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 8 of 17
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`28.
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`Sound United Product listings on Defendant’s Amazon.com storefront suggests to
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`consumers that they come with the corresponding Sound United Brand’s warranty:
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`29. Moreover, certain of Defendant’s Amazon.com product listings specifically direct
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`consumers to the corresponding Sound United Brand’s warranty:
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 9 of 17
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`30.
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`Thus, consumers that purchase Sound United Products sold by Defendant expect
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`that those products will have the corresponding Sound United Brand’s warranty.
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`31.
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`However, only Sound United Products purchased from an Authorized Reseller
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`qualify for the corresponding Sound United Brand’s warranty. All Sound United Brand’s
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`warranties are only valid if purchased directly from an Authorized Reseller. All Sound United
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`Brand’s warranties do not extend to Sound United Products purchased from unauthorized
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`dealers, such as Defendant.
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`32.
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`Sound United has never authorized or otherwise granted Defendant permission to
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`sell Sound United Products. Defendant is not a Sound United Authorized Reseller.
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`33.
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`Because Defendant is not an Authorized Reseller and cannot sell Sound United
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`Products protected by the corresponding Sound United Brand’s warranty, the products bearing
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`the Sound United Marks offered and sold by Defendant are materially different than those sold
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`by Sound United. The Sound United Products sold by Defendant do not have the corresponding
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`Sound United Brand’s warranty.
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 10 of 17
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`34. Moreover, to obtain the inventory of Sound United Products Defendant is offering
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`for sale on various online platforms, Defendant intentionally sought out, directly or indirectly,
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`and obtained Sound United Products from one or more Sound United Authorized Resellers.
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`35.
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`Based on knowledge in the industry as well as previous correspondence from
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`Sound United notifying Defendant of Sound United’s Authorized Distributor Agreements and
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`Authorized Dealer Agreements, Defendant was aware that each of those Authorized Resellers
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`was prohibited from selling Sound United Products to Defendant.
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`36.
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`Defendant’s promotion and sale of Sound United Products without authorization
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`or license creates the false impression that Defendant is among Sound United’s Authorized
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`Reseller Network and has caused consumer confusion and disappointment. For example,
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`Defendant has not received training from Sound United to be able to adequately service
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`customers purchasing and/or attempting to purchase Sound United Products through its online
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`retail spaces, as would a Sound United Authorized Reseller.
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`37.
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`Defendant’s continued advertisement, display, and sale of Sound United Products
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`as aforesaid has harmed, and continues to harm Sound United and its relationships with its
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`Authorized Resellers.
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`Likelihood of Confusion and Injury Caused by Defendant’s Actions
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`38.
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`Defendant’s actions substantially harm Sound United by placing materially
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`different Sound United Products into the stream of commerce in the United States.
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`39.
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`Defendant’s sale of Sound United Products bearing the Sound United Marks with
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`no warranty is likely to cause confusion among consumers regarding Sound United’s
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`sponsorship or approval of those products.
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 11 of 17
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`40.
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`Defendant’s actions substantially harm consumers who purchase Defendant’s
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`products believing they are protected by the corresponding Sound United Brand’s warranty.
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`Defendant’s actions cause consumers to not receive a warranted product as he or she intended.
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`41.
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`Defendant’s actions substantially harm Sound United’s goodwill and reputation
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`when consumers learn that the Sound United Products they have purchased are not protected by
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`the corresponding Sound United Brand’s warranty.
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`42.
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`The sale of Sound United Products by unauthorized resellers, such as Defendant,
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`interferes with Sound United’s ability to control the quality of products bearing the Sound United
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`Marks.
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`43.
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`As a result of Defendant’s actions, Sound United is suffering the loss of the
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`enormous goodwill it created in the Sound United Marks.
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`44.
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`Defendant continues to commit the acts complained of herein, and unless
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`restrained and enjoined, will continue to do so, all to Sound United’s irreparable harm.
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`COUNT I
`Trademark Infringement
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`Sound United hereby realleges each and every allegation contained in the
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`45.
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`foregoing paragraphs as if fully set forth herein.
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`46.
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`This is a claim for federal trademark infringement under 15 U.S.C. § 1114 and 15
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`U.S.C. § 1125.
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`47.
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`The acts of Defendant alleged herein constitute the use in commerce, without the
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`consent of Sound United, of a reproduction, counterfeit, copy, or colorable imitation of the
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`Sound United Marks in connection with the sale, offering for sale, distribution, or advertising of
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`goods, which use is likely to cause confusion or mistake, or to deceive consumers, and therefore
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`infringe Sound United’s rights in the Sound United Marks, all in violation of the Lanham Act.
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 12 of 17
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`48.
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`Defendant has used, and continues to use, the Sound United Marks in the sale of
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`Sound United Products that do not qualify for the corresponding Sound United Brand’s warranty.
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`Therefore, the products sold by Defendant are materially different from those offered or sold by
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`Sound United.
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`49.
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`Defendant’s infringing activities are likely to cause, are actually causing, and are
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`willful and intended to cause, confusion, mistake, and deception among members of the trade
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`and the general consuming public as to the origin and quality of such products, and constitute
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`trademark infringement under 15 U.S.C. § 1114.
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`50.
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`As a direct and proximate result of Defendant’s actions, Sound United has been,
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`and continues to be, damaged by Defendant’s activities and conduct. Defendant has profited
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`thereby, and, unless its conduct is enjoined, Sound United’s reputation and goodwill will
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`continue to suffer irreparable injury that cannot adequately be calculated or compensated by
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`money damages. Accordingly, Sound United is entitled to injunctive relief pursuant to 15 U.S.C.
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`§ 1116.
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`COUNT II
`Tortious Interference With Contract / Business Relations
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`Sound United hereby realleges each and every allegation contained in the
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`51.
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`foregoing paragraphs as if fully set forth herein.
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`52.
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`At all relevant times, Sound United has had valid Authorized Distributor and
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`Authorized Dealer Agreements and/or business relationships with its Authorized Resellers of
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`Sound United Products which prohibited the transshipment of Sound United Products to other
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`resellers.
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`53.
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`At all relevant times, Defendant had actual knowledge of Sound United’s
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`established contractual or business relationships with its Authorized Resellers, and was aware
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 13 of 17
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`that Sound United’s Authorized Distributor Agreements and Authorized Dealer Agreements
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`prohibit the transshipment, diversion, or transfer of any Sound United Products to any other
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`party, directly or indirectly, including, without limitation, Defendant.
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`54.
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`Sound United has learned that Defendant has obtained significant inventories of
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`Sound United Products, directly or indirectly, from one or more Authorized Resellers, and has
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`offered for sale and sold, and continues to offer for sale and sell such products through online
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`retail spaces, including, but not limited to, Amazon.com to customers throughout the United
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`States including, without limitation, within this judicial district.
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`55.
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`Defendant could only obtain the large inventory of Sound United Products that
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`they are offering for sale (1) through the knowing solicitation and procurement of Sound United
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`Products from one or more of Sound United’s Authorized Resellers, (2) through intentional,
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`improper, and knowing interference with these Authorized Dealers’ advantageous business
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`relationships with Sound United, or (3) by obtaining Sound United Products from Sound United
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`Authorized Resellers through fraudulent or illicit means.
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`56.
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`Defendant has knowingly, wrongfully, maliciously, intentionally, and tortiously
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`interfered with Sound United’s contractual relationships or its advantageous business relations
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`by, among other things, soliciting, encouraging, or diverting sales of Sound United Products.
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`These actions have interfered with, impeded, and hindered Sound United’s relationships with its
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`Authorized Reseller Network, and have caused specific harm
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`to Sound United’s
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`contract/business relationships with the Authorized Resellers from whom Defendant improperly
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`procured Sound United Products, and with other Authorized Resellers with whom Sound United
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`has contracted.
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`57.
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`Defendant has no privilege or justification for its actions and its conduct.
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 14 of 17
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`58.
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`Defendant’s activities, as alleged, constitute tortious interference with a
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`contract/business relation under the laws of the Commonwealth of Massachusetts.
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`59.
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`Defendant has refused to desist from these wrongful acts, and therefore has
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`indicated its intent to continue this unlawful conduct, unless restrained by this Court.
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`60.
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`61.
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`Defendant’s actions have proximately caused Sound United damage.
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`Defendant’s actions have irreparably harmed Sound United and its incalculable
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`goodwill in the Sound United brand, and, unless enjoined, will continue to do so in a manner
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`affording Sound United no adequate remedy at law.
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`COUNT III
`Unfair Competition Under Mass. Gen. Laws c. 93A
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`Sound United hereby realleges each and every allegation contained in the
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`62.
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`foregoing paragraphs as if fully set forth herein.
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`63.
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`Sound United and Defendant are in the conduct of trade or commerce within the
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`meaning of Mass. Gen. Laws c. 93A.
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`64.
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`As detailed above, Defendant’s act of obtaining Sound United Products through
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`fraudulent or illicit means constitutes an unfair and deceptive business act.
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`65.
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`As detailed above, Defendant’s continued interference and unauthorized resale of
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`Sound United Products constitutes an unfair and deceptive business act.
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`66.
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`Defendant’s acts have caused Sound United damage, have irreparably harmed
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`Sound United and, unless enjoined, will continue to do so in a manner affording Sound United
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`no adequate remedy at law.
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`67.
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`Defendant has refused to desist from these wrongful acts, and therefore Defendant
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`has indicated that it intends to continue this unlawful conduct, unless restrained by this Court.
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`RELIEF REQUESTED
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`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 15 of 17
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`WHEREFORE, Sound United prays for judgment in its favor and against Defendant
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`providing the following relief:
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`A.
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`Preliminarily and permanently enjoin Defendant, including all partners, officers,
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`agents, servants, employees, attorneys, and all those persons and entities in active
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`concert or participation with Defendant, including, but not limited to, any online
`
`platform, such as Amazon.com, or any website, website host, website
`
`administrator, domain registrar, or internet service provider, from:
`
`i.
`
`ii.
`
`using, or attempting to use, any of Sound United’s intellectual property,
`
`including, but not limited to, the Sound United Marks;
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`acquiring, or taking any steps to acquire, any Sound United Products in
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`violation of Sound United’s Authorized Distributor Agreements and/or
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`Authorized Dealer Agreements, or through any other improper or unlawful
`
`channels;
`
`iii.
`
`selling, or taking any steps to sell, any Sound United Product unless
`
`Defendant can substantiate with documentary evidence that the specific
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`Sound United Product it is listing for sale was not acquired in violation of
`
`Sound United’s Authorized Distributor Agreements and/or Authorized
`
`Dealer Agreements, or through any other improper or unlawful channels;
`
`iv.
`
`engaging in any activity constituting unfair competition with Sound
`
`United; and
`
`v.
`
`inducing, assisting, or abetting any other person or entity in engaging in or
`
`performing any of the business activities decried in the paragraphs above.
`
`15
`
`
`
`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 16 of 17
`
`B.
`
`Award Sound United its actual damages suffered as a result of Defendant’s acts
`
`and treble said damages as provided by law pursuant to 15 U.S.C. § 1117 and
`
`M.G.L. c. 93A;
`
`C.
`
`Enter judgment that Defendant’s acts of infringement have been knowing and
`
`willful;
`
`D.
`
`Order the recall, impounding, and destruction of all goods, advertising, or other
`
`items bearing infringing markings, pursuant to 15 U.S.C. § 1118, or otherwise;
`
`E.
`
`Award Sound United its reasonable attorneys’ fees in bringing this action as
`
`allowed by law;
`
`F.
`
`Award Sound United pre-judgment and post-judgment interest in the maximum
`
`amount allowed under the law;
`
`G.
`
`H.
`
`Award Sound United the costs incurred in bringing this action;
`
`Award Sound United other relief as this Court deems just and proper.
`
`JURY TRIAL CLAIM
`
`Sound United hereby requests trial by jury on all claims so triable.
`
`[SIGNATURE PAGE FOLLOWS]
`
`
`
`
`
`
`
`
`
`
`
`
`
`16
`
`
`
`Case 1:19-cv-12541-DLC Document 1 Filed 12/18/19 Page 17 of 17
`
`
`
`Respectfully submitted,
`
`Plaintiff,
`
`Sound United, LLC,
`
`by its attorneys,
`
`
`/s/ Michael R. Murphy
`Michael R. Murphy (BBO # 671816)
`michael.r.murphy@klgates.com
`Jack S. Brodsky (BBO # 696683)
`jack.brodsky@klgates.com
`K&L Gates LLP
`State Street Financial Center
`One Lincoln Street
`Boston, MA 02111
`(617) 261-3100
`(617) 261-3175
`
`
`
`Dated: December 18, 2019
`
`17
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`
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