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Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 1 of 14
`
`
`
`Per A. Ramfjord, OSB No. 934024
`per.ramfjord@stoel.com
`STOEL RIVES LLP
`900 SW Fifth Avenue, Suite 2600
`Portland, OR 97204
`Telephone: (503) 224-3380
`Facsimile: (503) 220-2480
`
`Christopher J. Renk, ILSB No. 6199012
`crenk@bannerwitcoff.com
`Erik S. Maurer, ILSB No. 6275467
`emaurer@bannerwitcoff.com
`Michael J. Harris, ILSB No. 6280168
`mharris@bannerwitcoff.com
`Audra C. Eidem Heinze, ILSB No. 6299717
`aheinze@bannerwitcoff.com
`Aaron Bowling, ILSB No. 6312394
`abowling@bannerwitcoff.com
`BANNER & WITCOFF, LTD.
`Ten South Wacker Drive
`Suite 3000
`Chicago, IL 60606-7407
`Telephone: (312) 463-5000
`Facsimile: (312) 463-5001
`Pro Hac Vice Pending
`
`Attorneys for Plaintiff Nike, Inc.
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`PORTLAND DIVISION
`
`NIKE, INC., an Oregon corporation,
`
` Case No.: __________________
`
`Plaintiff,
`
`v.
`
`SKECHERS U.S.A., INC., a Delaware
`corporation,
`
`Defendant.
`
`
`
` COMPLAINT FOR PATENT
` INFRINGEMENT
`
` (35 U.S.C. § 101)
`
` JURY TRIAL REQUESTED
`
`Skechers Ex 1010-p. 1
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 2 of 14
`
`
`
`Plaintiff Nike, Inc. (“NIKE”), for its Complaint against Defendant Skechers U.S.A., Inc.
`
`(“Skechers”), alleges as follows:
`
`INTRODUCTION
`
`1.
`
`This is an action for patent infringement arising under the Patent Laws of the
`
`United States, 35 U.S.C. § 101 et seq. NIKE owns exclusive rights in the ornamental designs
`
`claimed in United States Design Patent Nos. D696,853; D700,423; and D707,032, each titled
`
`“Shoe Upper,” and D723,772; D723,781; D723,783; D725,356; and D725,359, each titled “Shoe
`
`Sole” (collectively, the “NIKE Patents”).
`
`2.
`
`Skechers has used and continues to use the claimed designs of the NIKE Patents,
`
`without NIKE’s permission, on shoes that Skechers makes, uses, offers for sale, sells, and/or
`
`imports into the United States.
`
`3.
`
`NIKE seeks, among other relief, an injunction preventing Skechers from further
`
`infringing the NIKE Patents, and damages and/or a disgorgement of Skechers’ profits from its
`
`patent infringements.
`
`THE PARTIES
`
`4.
`
`NIKE is a corporation organized and existing under the laws of the State of
`
`Oregon with a principal place of business at One Bowerman Drive, Beaverton, Oregon 97005.
`
`5.
`
`On information and belief, Skechers is a corporation organized and existing under
`
`the laws of the State of Delaware with a principal place of business at 228 Manhattan Beach
`
`Boulevard, Manhattan Beach, California 90266.
`
`Skechers Ex 1010-p. 2
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 3 of 14
`
`JURISDICTION AND VENUE
`
`6.
`
`This action arises under the patent laws of the United States, Title 35, United
`
`States Code. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`
`§§ 1331 and 1338.
`
`7.
`
`This Court has personal jurisdiction over Skechers at least because Skechers
`
`transacts and solicits business in the State of Oregon, including with respect to shoes that
`
`infringe the NIKE Patents, and because Skechers is committing and has committed acts of patent
`
`infringement in the State of Oregon, at least by selling and offering to sell shoes that infringe the
`
`NIKE Patents in Oregon.
`
`8.
`
`Venue is proper in this judicial district under 28 U.S.C. §§ 1391 and 1400 at least
`
`because Skechers resides in this district by transacting and soliciting business in this district,
`
`including with respect to shoes that infringe the NIKE Patents, and committing acts of patent
`
`infringement in this district by selling and offering to sell shoes that infringe the NIKE Patents.
`
`FACTUAL ALLEGATIONS
`
`A.
`
`The NIKE Patents
`
`9.
`
`For many years, NIKE has designed, developed, made, and sold a wide array of
`
`athletic and fashion footwear, apparel, and sports equipment.
`
`10.
`
`NIKE has taken steps to protect its innovative designs, including its footwear-
`
`related designs. In particular, NIKE owns various United States design patents relating to its
`
`footwear designs. Relevant to this dispute, NIKE owns all right, title, and interest in, and has the
`
`right to sue and recover for past, present, and future infringement of, each of the NIKE Patents
`
`identified in Table 1 from the date each patent duly and legally issued to NIKE. A copy of each
`
`NIKE Patent is attached to this Complaint as indicated in Table 1.
`
`Skechers Ex 1010-p. 3
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 4 of 14
`
`U.S. Patent Number
`D696,853 (the “‘853 Patent”)
`D700,423 (the “‘423 Patent”)
`D707,032 (the “‘032 Patent”)
`D723,772 (the “‘772 Patent”)
`D723,781 (the “‘781 Patent”)
`D723,783 (the “‘783 Patent”)
`D725,356 (the “‘356 Patent”)
`D725,359 (the “‘359 Patent”)
`
`Table 1: The NIKE Patents
`Issue Date of
`Patent
`January 7, 2014
`March 4, 2014
`June 17, 2014
`March 10, 2015
`March 10, 2015
`March 10, 2015
`March 31, 2015
`March 31, 2015
`
`Title
`Shoe Upper
`Shoe Upper
`Shoe Upper
`Shoe Sole
`Shoe Sole
`Shoe Sole
`Shoe Sole
`Shoe Sole
`
`11.
`
`The NIKE Patents are presumed to be valid.
`
`
`
`B.
`
`Skechers’ Infringing Activities
`
`Complaint
`Exhibit
`A
`B
`C
`D
`E
`F
`G
`H
`
`12.
`
`On information and belief, without NIKE’s authorization, Skechers made, used,
`
`offered for sale, sold, and/or imported into the United States shoes having designs that violate the
`
`NIKE Patents (hereafter, the “Infringing Shoes”). The Infringing Shoes include at least products
`
`identified by the model names: Skechers’ Burst, Women’s Flex Appeal, Men’s Flex Advantage,
`
`Girl’s Skech Appeal, and Boy’s Flex Advantage shoes, as well as Skechers’ shoes bearing the
`
`same or substantially similar infringing designs, regardless of model name.
`
`13.
`
`On information and belief, the overall appearance of the designs of the NIKE
`
`Patents and the corresponding designs of Skechers’ Infringing Shoes are substantially the same.
`
`14.
`
`On information and belief, an ordinary observer will perceive the overall
`
`appearance of the designs of the NIKE Patents and the corresponding designs of Skechers’
`
`Infringing Shoes to be substantially the same. For example, a recent article describes the
`
`Skechers’ Burst Infringing Shoe as having “ripped off” NIKE’s “Flyknit” design that is covered
`
`by the ‘853, ‘423, and ‘032 Patents, as shown in Illustration 1 below. The complete article is
`
`attached to the Complaint as Exhibit I.
`
`Skechers Ex 1010-p. 4
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 5 of 14
`
`Illustration 1: Complex.com Article About Skechers’ Burst Infringing Shoe
`
`
`
`
`
`15.
`
`Tables 2 through 8 below illustrate Skechers’ infringement by comparing figures
`
`from the NIKE Patents with exemplary images of Infringing Shoes.
`
`Table 2: Comparison of ‘853 Patent with Exemplary Infringing Shoes
`‘853 Patent Figures
`Exemplary Infringing Shoes
`
`
`
`Women’s Burst
`
`
`
`Women’s Burst
`
`
`
`
`
`
`
`
`
`Men’s Burst
`
`Men’s Burst
`
`
`
`
`
`
`
`Skechers Ex 1010-p. 5
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 6 of 14
`
`Table 3: Comparison of ‘423 Patent with Exemplary Infringing Shoes
`‘423 Patent Figures
`Exemplary Infringing Shoes
`
`
`
`Women’s Burst
`
`
`
`Women’s Burst
`
`
`
`
`
`Men’s Burst
`
`Men’s Burst
`
`Table 4: Comparison of ‘032 Patent with Exemplary Infringing Shoes
`‘032 Patent Figures
`Exemplary Infringing Shoes
`
`
`
`Women’s Burst
`
`
`
`Women’s Burst
`
`
`
`
`
`Men’s Burst
`
`Men’s Burst
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Skechers Ex 1010-p. 6
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 7 of 14
`
`Table 5: Comparison of ‘772 Patent with Exemplary Infringing Shoes
`‘772 Patent Figures
`Exemplary Infringing Shoes
`
`Women’s Flex Appeal
`
`
`
`
`
`
`
`
`Men’s Flex Advantage
`
`
`
`
`
`
`Girls’ Skech Appeal
`
`Boys’ Flex Advantage
`
`
`Women’s Flex Appeal
`
`
`
`Men’s Flex Advantage
`
`
`
`
`
`
`
`Girls’ Skech Appeal
`
`
`Boys’ Flex Advantage
`
`Skechers Ex 1010-p. 7
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 8 of 14
`
`Table 6: Comparison of ‘781 Patent with Exemplary Infringing Shoes
`‘781 Patent Figures
`Exemplary Infringing Shoes
`
`Women’s Flex Appeal
`
`
`
`
`
`
`Men’s Flex Advantage
`
`
`Girls’ Skech Appeal
`
`Boys’ Flex Advantage
`
`Men’s Flex Advantage
`
`
`Women’s Flex Appeal
`
`
`
`
`
`
`Girls’ Skech Appeal
`
`Boys’ Flex Advantage
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Skechers Ex 1010-p. 8
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 9 of 14
`
`Table 7: Comparison of ‘783 Patent with Exemplary Infringing Shoes
`‘783 Patent Figures
`Exemplary Infringing Shoes
`
`Women’s Flex Appeal
`
`
`
`
`
`
`Men’s Flex Advantage
`
`
`Girls’ Skech Appeal
`
`Boys’ Flex Advantage
`
`Men’s Flex Advantage
`
`
`Women’s Flex Appeal
`
`
`
`
`
`
`Girls’ Skech Appeal
`
`Boys’ Flex Advantage
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Skechers Ex 1010-p. 9
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 10 of 14
`
`Table 8: Comparison of ‘356 Patent with Exemplary Infringing Shoes
`‘356 Patent Figures
`Exemplary Infringing Shoes
`
`Women’s Flex Appeal
`
`
`
`
`
`
`
`
`Men’s Flex Advantage
`
`
`
`
`
`
`Girls’ Skech Appeal
`
`Boys’ Flex Advantage
`
`
`Women’s Flex Appeal
`
`
`
`Men’s Flex Advantage
`
`
`
`Girls’ Skech Appeal
`
`
`Boys’ Flex Advantage
`
`
`
`
`
`
`Skechers Ex 1010-p. 10
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 11 of 14
`
`Table 9: Comparison of ‘359 Patent with Exemplary Infringing Shoes
`‘359 Patent Figures
`Exemplary Infringing Shoes
`
`Women’s Flex Appeal
`
`
`
`
`
`
`
`
`
`
`Men’s Flex Advantage
`
`
`
`
`
`
`Girls’ Skech Appeal
`
`Boys’ Flex Advantage
`
`
`Women’s Flex Appeal
`
`
`
`Men’s Flex Advantage
`
`
`
`
`
`Girls’ Skech Appeal
`
`
`Boys’ Flex Advantage
`
`
`
`16.
`
`On information and belief, Skechers intended to copy the designs covered by the
`
`NIKE Patents.
`
`17.
`
`On information and belief, Skechers sells and offers to sell its shoes, including the
`
`Infringing Shoes, directly to end-user customers through its e-commerce websites and its own
`
`retail stores, as well as to third-party resellers, such as department and specialty stores, through
`
`its wholesale distribution channel. (See, e.g., Exhibit J, Skechers’ Form 10-K at 2, 9–10.)
`
`Skechers Ex 1010-p. 11
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 12 of 14
`
`18.
`
`Skechers sells and offers to sell Infringing Shoes directly to end-user customers in
`
`the United States, including in Oregon. Third-party resellers also sell and offer to sell the
`
`Infringing Shoes in the United States, including in Oregon. For example, Exhibit K attached
`
`shows Infringing Shoes for sale on www.kohls.com, which, on information and belief, were
`
`distributed through Skechers’ wholesale distribution channel, as well as a map showing Kohl’s
`
`locations in the Portland, Oregon area.
`
`19.
`
`On information and belief, Skechers has infringed and continues to infringe the
`
`NIKE Patents within the meaning of 35 U.S.C. § 271 at least by making, using, selling, offering
`
`to sell, and/or importing the Infringing Shoes into the United States without NIKE’s
`
`authorization.
`
`FIRST CLAIM FOR RELIEF
`
`(Infringement Under 35 U.S.C. § 271 of the NIKE Patents)
`
`20.
`
`NIKE re-alleges and incorporates by reference the allegations set forth in
`
`
`
`paragraphs 1–20 of this Complaint.
`
`21.
`
`Skechers, without authorization from NIKE, has made, used, offered for sale,
`
`sold, and/or imported in or into the United States, and continues to make, use, offer for sale, sell,
`
`and/or import in or into the United States, shoes having designs that infringe the NIKE Patents.
`
`22.
`
`NIKE has been and will continue to be irreparably harmed by Skechers’
`
`infringements of the NIKE Patents
`
`Skechers Ex 1010-p. 12
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 13 of 14
`
`WHEREFORE, NIKE respectfully requests that the Court grant the following relief:
`
`1.
`
`2.
`
`A judgment that Skechers infringed each of the NIKE Patents;
`
`A permanent injunction enjoining Skechers, and all persons acting in concert with
`
`Skechers, from infringing each of the NIKE Patents;
`
`3.
`
`A judgment and order requiring Skechers to pay NIKE all damages caused by
`
`Skechers’ infringement of each of the NIKE Patents (but in no event less than a reasonable
`
`royalty) pursuant to 35 U.S.C. § 284, or the total profit made by Skechers from its infringement
`
`of each of the NIKE Patents pursuant to 35 U.S.C. § 289;
`
`4.
`
`A judgment and order requiring Skechers to pay NIKE supplemental damages or
`
`profits for any continuing post-verdict infringement up until entry of the final judgment, with an
`
`accounting, as needed;
`
`5.
`
`A judgment and order requiring Skechers to pay NIKE increased damages up to
`
`three times the amount found or assessed pursuant to 35 U.S.C. § 284;
`
`6.
`
`A judgment and order requiring Skechers to pay NIKE pre-judgment and post-
`
`judgment interest on any damages or profits awarded;
`
`7.
`
`A determination that this action is an exceptional case pursuant to 35 U.S.C.
`
`An award of NIKE’s attorneys’ fees for bringing and prosecuting this action;
`
`An award of NIKE’s costs and expenses incurred in bringing and prosecuting this
`
`§ 285;
`
`8.
`
`9.
`
`action; and
`
`
`
`
`
`
`
`Skechers Ex 1010-p. 13
`Skechers v Nike
`
`

`

`Case 3:16-cv-00007 Document 1 Filed 01/04/16 Page 14 of 14
`
`10.
`
`Such further and additional relief as this Court deems just and proper.
`
`DEMAND FOR JURY TRIAL
`
`NIKE hereby demands a jury for all issues so triable.
`
`
`
`DATED: January 4, 2016.
`
`STOEL RIVES LLP
`
`
`
`/s/ Per A. Ramfjord
`PER A. RAMFJORD, OSB No. 934024
`per.ramfjord@stoel.com
`
`
`BANNER & WITCOFF, LTD.
`Christopher J. Renk, ILSB No. 6199012
`crenk@bannerwitcoff.com
`Erik S. Maurer, ILSB No. 6275467
`emaurer@bannerwitcoff.com
`Michael J. Harris, ILSB No. 6280168
`mharris@bannerwitcoff.com
`Audra C. Eidem Heinze, ILSB No. 6299717
`aheinze@bannerwitcoff.com
`Aaron P. Bowling, ILSB No. 6312394
`abowling@bannerwitcoff.com
`Pro Hac Vice Pending
`
`Attorneys for Plaintiff Nike, Inc.
`
`
`
`
`
`
`Skechers Ex 1010-p. 14
`Skechers v Nike
`
`

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