1 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Civil Action No. 1:20-cv-22327 

THERAGUN, INC., a Delaware corporation, 

Plaintiff, 

v. 

GOLOVAN LTD., d/b/a GETKRAFT, an 

Israel limited company; DEZHOU CREATE 

FITNESS EQUIPMENT CO., LTD., a 

Chinese limited company; and DOES 1 

through 10, inclusive, 

Defendants. 

PLAINTIFF’S MOTION FOR FEES UNDER 28 U.S.C. § 285 AND FOR COSTS 

Plaintiff Theragun, Inc. (“Theragun” or “Plaintiff”), through undersigned counsel and 

pursuant to Fed. R. Civ. P. 54(d)(1) and (2), as well as pursuant to S.D. Fla. Local Rule 7.3, hereby 

moves for the entry of a judgment for attorneys’ fees and non-taxable costs in favor of Plaintiff 

and against the Defendant Dezhou Create Fitness Equipment Co., Ltd. (“Dezhou”), and as 

grounds, states as follows: 

I. INTRODUCTION 

On November 20, 2020, the Court entered default final judgment against Dezhou in favor 

of Theragun on all counts of Plaintiff’s Complaint. Dkt. 29. The Court found that Dezhou was 

liable to Plaintiff for patent infringement of U.S. Patent No. D877,351 (the “’351 Patent”), 

Dezhou’s conduct was willful and intentional and in conscious disregard of Plaintiff’s rights, and 

Dezhou was permanently enjoined from infringing the ‘351 Patent. For the reasons set forth 

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herein, the Court should also enter an award of attorneys’ fees and non-taxable costs on behalf of 

Plaintiff. 

II. STATEMENT OF FACTS

A. Background 

Theragun is in the business of developing, manufacturing, and selling high-quality, 

innovative percussive therapy devices and attachments therefor. Theragun invests considerable 

time, effort and money in developing and protecting its intellectual property, including the unique 

and novel design and trade dress of its products. Dkt. 1 [Complaint], ¶ 10. Theragun is the owner 

of the ‘351 Patent, entitled “Therapeutic Device,” issued on March 3, 2020. Id., ¶ 11. The ‘351 

Patent pertains to a particular ornamental design for a therapeutic percussive massage device, 

including as depicted below in Fig. 1 from Theragun's complaint. Id. (showing Fig. 2 of the ‘351 

Patent). 

Dezhou manufactures and sells the infringing device, the “KRAFTGUN,” identified in Fig. 

2 from the Complaint, shown below (the “Infringing Device”). Id., ¶ 12. 

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Fig. 2 

On its brand page on Alibaba (dzcreate.en.alibaba.com), Dezhou states that it “is a 

professional manufacturer engaged in research, development, production, sale and service of 

muscle massage products...” that its “products are selling well in North America.” Dezhou 

manufactures the KRAFTGUN that infringes the ‘351 Patent. Id., ¶ 14. Dezhou also sells its 

infringing products under the brand name CRIFIT. Id., ¶ 15. In addition to its retail sales, Dezhou 

sells or manufactures infringing products to or for distributors or resellers in the United States 

including, without limitation, the other Defendants herein who, in turn, import, sell, and/or offer 

to sell the infringing Dezhou products. Id. In fact, Dezhou advertises that it can place alternative 

brand names on its products and packaging and provide sample products within three days. Id. 

B. Dezhou’s Willful Infringement 

As noted, Dezhou manufactures and sells the percussive massage devices that infringe the 

‘351 Patent, including at least the KRAFTGUN product shown in Fig. 1, above. Id., ¶ 18. As 

shown below, a side-by-side comparison of Theragun’s ‘351 Patent and Defendants’ Infringing 

Devices quickly reveals that the Infringing Devices appear substantially the same as Theragun’s 

‘351 Patent to an ordinary observer; the resemblance is such as to deceive such an observer, 

inducing him or her to purchase one supposing it to be the other. Id., ¶ 18. 

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Dezhou's liability for willful infringement is well established. Specifically, Plaintiff has 

pled, and the Court found, (a) that Plaintiff owned the ’351 Patent; (b) that Dezhou has, at a 

minimum, manufactured and sold, and continues to manufacture and sell, the Infringing Devices; 

(c) that Dezhou does not have a license or other authorization from Plaintiff to make, use, sell, 

offer to sell, or offer to sell the Infringing Devices or any product which reads on the claims of the 

’351 Patent; and (d) that Dezhou's unlawful activities, which have been undertaken willfully, have 

caused Plaintiff damage and irreparable injury. Such allegations, now deemed admissions, 

established that Defendants are liable for willful direct infringement of the ’351 Patent pursuant to 

35 U.S.C. § 271. As a result of Dezhou's admitted willful infringement, this Court entered a final 

judgment and permanent injunction against Dezhou. Dkt. 29. Plaintiff now seeks its attorneys' 

fees under 35 U.S.C. § 285.1

III. ARGUMENT 

A. Standard For An Award Of Fees. 

The Patent Act provides for an award of attorneys’ fees to the prevailing party “in 

exceptional cases.” 35 U.S.C. § 285; Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 

S. Ct. 1749, 188 L. Ed. 2d 816 (2014). In Octane Fitness, the United States Supreme Court 

1

 35 U.S.C. § 285 states "The court in exceptional cases may award reasonable attorney fees to 

the prevailing party." 

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considered an “exceptional case” in the patent statute and ruled that an exceptional case “stands 

out from others with respect to the substantive strength of a party’s litigating position, considering 

both the governing law and the facts of the case, or the unreasonable manner in which the case 

was litigated.” Octane Fitness, 134 S. Ct. at 1756. The Supreme Court also held that “district 

courts may determine whether a case is ‘exceptional in the case-by-case exercise of their 

discretion, considering the totality of the circumstances.” Id. Florida courts have determined that 

cases such as the instant matter meet the Octane Fitness standard for an award of attorney’s fees. 

See Shipping and Transit, LLC v. 1A Auto, Inc., 283 F. supp. 3d 1290 (S.D. Fla. Oct. 20, 2017) 

(adopting report and recommendation for award of fees under Patent Act and ordering same). 

B. The Instant Case Qualifies As Exceptional. 

An award of fees is appropriate here under the standards provided in Octane Fitness

and the Patent Act. Here, by virtue of Defendant Dezhou's intentional and willful infringement 

and its decision not to participate in the litigation2 (and its subsequent default), Theragun's 

well-founded allegations of willful infringement are deemed admitted. Additionally, the 

amount of infringing sales as disclosed by Defendant Golovan, who purchased Infringing 

Devices from Dezhou, was substantial, consisting of at least 2500 units at a retail price believe 

to be at least $370 each3, totaling more than $925,000. This excludes sales by Dezhou, directly 

or through other retailers, that are not known because Dezhou would not participate in this 

case, leading to default judgment. As a result, the instant case indeed meets the exceptionality 

2 See Dkt. 17 at 7 ("After Dezhou was served in the California case by e-mail and posting on its Alibaba.com 

website, Dezhou communicated with the plaintiff’s counsel from the e-mail address on which service had 

been effected."); Dkt. 18, ¶ 7 & Ex. 2. Pursuant to this Court Order dated September 16, 2020 (Dkt. 22), 

Theragun served the Complaint and Summons at the address Dezhou previously had responded in the 

California case. Dkt. 23. Dezhou never responded.

3

https://huckberry.com/store/kraft-gun/category/p/62631-kraft-gun-noise-free-massage-gun

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standard in the Patent Act and under Octane Fitness, and Plaintiff prays that the Court enter 

an award of attorneys’ fees incurred to prosecute its meritorious claims against Dezhou. 

C. The amount sought by Plaintiff and the requirements of Local Rule 7.3. 

 Plaintiff was required to obtain counsel for the prosecution of this action as only an attorney 

may represent a company in litigation as a matter of law. See Palazzo v. Gulf Oil Corp., 764 F. 

2d 1381, 1385 (11th Cir. 1985). The law firm of Gray | Robinson, P.A. in Miami was retained 

as Florida counsel for Plaintiff to work with its local, California counsel, Jeffer Mangels 

Butler & Mitchell LLP (“JMBM”) in Los Angeles, California. The law firm of Gray | 

Robinson, P.A. accrued $27,529.50 in attorneys’ fees while JMBM accrued $25,037.10 in 

attorneys’ fees. Plaintiff also seeks the recovery of non-taxable costs such as related 

computer research charges in the amount of $62.78. In sum, Plaintiff seeks its reasonable 

attorneys' fees and non-taxable costs in the amount of $52,629.38. 

The amount sought is reasonable, particularly with a foreign (Chinese) defendant with 

no U.S. presence and who deliberately refuses to participate in the litigation even though it 

was aware of, and was served with, Plaintiff's complaint. Without waiving the attorney-client 

privilege, and for the purpose of allowing the Court to consider all factors under S.D. Fla. 

Local Rule 7.3, Plaintiff discloses that it has an hourly rate agreement with its attorneys 

wherein it pays a reasonable fee based upon the particular hourly rate of the specific attorney 

or paralegal. Attached to the instant Motion as EXHIBIT A is thus an exhibit providing a list 

of all attorneys and paralegals, their experience, their qualifications, and their hourly rates, 

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as well as the number of hours reasonably expended4by each timekeeper along with a 

description of the tasks done during those hours (including time sheets). 

D. Local Rule 7.3(a)(7) – Verification. 

Counsel for Plaintiff, Elio F. Martinez, Jr., has reviewed the detailed records of attorneys’ 

fees and costs accrued in this case and verifies that the detailed records of attorneys’ fees and 

costs accrued in this case are accurate. 

IV. CONCLUSION 

WHEREFORE, Plaintiff respectfully requests that this Court deem the instant case as 

exceptional as a matter of law, grant Plaintiff’s Motion and award Plaintiff $52,566.60 in 

attorney’s fees, $62.78 in non-taxable costs. 

Local Rule 7.1 and 7.3(a)(8) Certification 

Pursuant to Southern District of Florida Civil Local Rule 7.1 and 7.3(a)(8), undersigned 

counsel certifies that the draft motion with attachments was served on Defendant Dezhou on 

December 18, 2020 and that the undersigned conferred in good faith to try to agree on entitlement to 

and the amount of fees. As of the time of the filing of this Motion, Defendant Dezhou has not 

responded with relation to the specific relief requested in this Motion. 

[SIGNATURE ON FOLLOWING PAGE]

4 The hourly rates charged by counsel for Plaintiff are reasonable for the level of experience of the 

attorneys involved and the rates normally charged by attorneys practicing in the field of intellectual 

property in the Metro-Southeast region of the country. The American Intellectual Property Report 

of the Economic Survey supports the hourly rates charged by Plaintiff’s attorneys.

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Dated: January 11, 2021

 By: 

Respectfully Submitted,

/s/Elio F. Martinez, Jr. 

Elio F. Martinez, Jr. 

Fla. Bar No. 501158 

elio.martinez@gray-robinson.com

Robert R. Jimenez 

Fla. Bar No. 72020 

robert.jimenez@gray-robinson.com

GRAY | ROBINSON, P.A.

333 S.E. 2nd Avenue 

Suite 3200 

Miami, Florida 33131 

Tel: (305) 416-6800 

Fax: (305) 416-6887 

Attorneys for Plaintiff Theragun, Inc.

Rod S. Berman (Bar No. 105444) 

rberman@jmbm.com

Gregory S. Cordrey (Bar No. 19014) 

gcordrey@jmbm.com

JEFFER MANGELS BUTLER & 

MITCHELL LLP

1900 Avenue of the Stars, Seventh Floor 

Los Angeles, California 90067 

Tel: (310) 203-8080 

Fax: (310) 203-0567 

Co-counsel for Plaintiff Theragun, Inc. 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on January 11, 2021, I electronically filed the foregoing 

document with the Clerk of the Court by using the CM/ECF system, which will send a notice of 

electronic filing to all counsel of record. Additionally, Plaintiff’s counsel will serve this document 

via email to Defendant Dezhou Create Fitness Equipment Co., Ltd. (to info@dzcreate.cn), as well 

as through upload to Alibaba.com (https://crifit.en.alibaba.com/), as outlined in the Court’s Order 

Granting Motion for Electronic Service of Process [D.E. 22]. 

By: /s/ Elio F. Martinez, Jr.

Elio F. Martinez 

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