Index of Exhibits

Exhibit 1 Plaintiff's First Amended Complaint

Exhibit 2 Answer

Exhibit 3 Subpoena On Razorfish w/Attachments and Proof Of Service

Exhibit 4 Objections To Subpoena

Exhibit 5 May 30, 2012 letter

Exhibit 6 June 5, 2012 letter

Exhibit 7 June 11, 2012 letter

Exhibit 8 June 29, 2012 letter

Exhibit 9 June 13, 2012 letter

Exhibit 10 June 19, 2012 letter

Exhibit 11 June 20, 2012 letter

Exhibit 12 June 22, 2012 letter

Exhibit 13 June 27, 2012 letter from Nadege Souvenir

Exhibit 14 June 27, 2012 letter from Dennis Hansen

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EXHIBIT 1

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Select Comfort Corporation,

Plaintiff,

vs.

The Sleep Better Store, LLC

Defendant.

Court File No. 0:11-cv-00621 (JNE/JSM)

FIRST AMENDED COMPLAINT

JURY TRIAL DEMANDED

Plaintiff, Select Comfort Corporation (“Select Comfort”), for its Complaint

against Defendant The Sleep Better Store, LLC, doing business as Dream Number Beds

(“The Sleep Better Store,” “Dream Number Beds,” or “Defendant”), states:

NATURE OF THIS ACTION

1. This is an action for damages and injunctive relief arising out of

Defendant’s infringing, unauthorized, false and misleading use of several of Select

Comfort’s trademarks, and false and deceptive statements made to Minnesota consumers

on Defendant’s websites.

PARTIES

2. Select Comfort is a Minnesota corporation with its principal place of

business in Minnesota.

3. Defendant is a Texas limited liability company with its principal place of

business in Texas.

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JURISDICTION AND VENUE

4. This Court has jurisdiction over the subject matter of this action pursuant to

28 U.S.C. § 1338 and supplemental jurisdiction over the state law claims pursuant to 28

U.S.C. § 1367. Venue lies in this District under 28 U.S.C. § 1391(b) and (c).

5. This Court has personal jurisdiction over Defendant. Defendant has

purposefully, continuously and systematically conducted business in Minnesota by, inter

alia, advertising, promoting and selling its air bed mattress products in Minnesota.

Defendant’s advertising, promotion and selling is conducted primarily through a highly

interactive website accessible at the domain names sleepnumbercomparison.com,

selectcomfortcomparison.com, dreamnumberbeds.com sleepbetterstore.com, through

which Defendant offers for sale and sells products to Minnesota residents by making

deceptive and misleading statements and by infringing Select Comfort’s trademarks.

Defendant thus transacts business over the internet with Minnesota residents, enters into

contracts with Minnesota residents via the internet, and collects payment for products

from Minnesota residents via the internet. Defendant has willfully engaged in

unauthorized, false and misleading uses of Select Comfort’s trademarks, which has

caused and continues to cause harm to Select Comfort, a Minnesota resident. Defendant

continues to engage in unauthorized, false and misleading use of Select Comfort’s

trademarks even after the nature of these uses have been brought to Defendant’s attention

by Select Comfort.

///

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FACTS

6. Select Comfort designs, manufactures and markets unique air bed products,

many features of which are either proprietary or protected by the patent laws of the

United States. Select Comfort’s Sleep Number bed uses uniquely designed air chambers

to provide a gentle cushion of support which can be easily adjusted to an individual’s

preference, comfort and firmness. Studies show that the Sleep Number®bed relieves

back pain and improves sleep quality.

7. Select Comfort is the owner of all rights in the trademark Sleep Number®,

including United States Trademark Registration Nos. 2,753,633, 2,618,999, 2,641,045

and 2,702,762, which registrations are incontestable. True and correct copies of these

registrations are attached as Exhibit A.

8. Select Comfort is the owner of all rights in the trademark Select Comfort®,

including United States Trademark Registration Nos. 1,581,562, 1,590,557 1,976,214,

2,702,763, 2,801,405, and 2,803,623, which registrations are incontestable True and

correct copies of these registrations are attached as Exhibit B.

9. Select Comfort is the owner of all rights in the trademark comprising its

double arrow circle logo (the “Double Arrow Logo”), including United States Trademark

Registration No. 2,803,624. A true and correct copy of this registration, which is

incontestable, is attached as Exhibit C.

10. Select Comfort is also the owner of all rights in the trademark comprising

its logo which combines its Sleep Number® mark and its Double Arrow Logo (the

“Sleep Number LogoTM”), shown below:

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Select Comfort has used the Sleep Number LogoTM continuously in commerce since

April of 2007.

11. Select Comfort is also the owner of all rights in the trademark DualAirTM as

well as the DualAir logo that is the subject of a pending United States Trademark/Service

Mark Application, Serial Number 85363543 (the “DualAir Logo”). Select Comfort has

used DualAirTM and the DualAir Logo continuously in commerce since June of 2011. A

true and correct copy of the DualAir Logo application filed with the United States Patent

and Trademark Office is attached as Exhibit D.

12. The trademarks, service marks, and logos described above are collectively

referred to as “Select Comfort’s Trademarks” or “the Trademarks-At-Issue.”

13. Select Comfort has an excellent reputation for both its unique product line

and superior quality of its products and services. Select Comfort was ranked the number

one bedding retailer in the United States by Furniture/Today for nine consecutive years.

14. Sleep Number®beds and accessories are available nationwide at Select

Comfort retail stores in major shopping malls and other locations, through the company’s

national direct marketing operations, as well as through Select Comfort’s website at

selectcomfort.com and sleepnumber.com.

15. Select Comfort markets its Sleep Number®beds and related goods through

extensive advertising in, inter alia, newspapers, national circulation magazines, direct

mailings, radio advertisements and television commercials and infomercials.

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16. As a result of the innovation and quality of its products, together with the

widespread advertising and promotion thereof, Select Comfort has acquired a reputation

for quality, integrity and innovation, and it is well-known as the leading seller of

premium air-supported sleep products.

17. As a result of widespread use in connection with the advertising and

promotion of its Sleep Number®beds and related products, Select Comfort has developed

substantial good will and national recognition in its Trademarks as a source of highquality mattresses and bedding products.

18. Indeed, the Sleep Number®and Select Comfort® marks, as well as the

Double Arrow Logo and the Sleep Number LogoTM, are among the most widely

recognized trademarks in the bedding industry.

DEFENDANT AND ITS ACTIVITIES

19. Defendant operates domain names and websites at

sleepnumbercomparison.com, selectcomfortcomparison.com, sleepbetterstore.com, and

dreamnumberbeds.com though which it sells air mattresses and related products to

purchasers in all 50 states.

20. On or about November 8, 2011, Defendant purportedly changed its name

and air-bed product line to “Dream Number Beds,” and launched a new Dream Number

website at dreamnumberbeds.com designed to replicate Select Comfort’s website.

Defendant’s infringing domain names and website addresses listed above, such as

sleepnumbercomparison.com and selectcomfortcomparison.com, link consumers directly

to its new infringing dreamnumberbeds.com website.

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21. In connection with the sale and promotion of its air beds and related

products, Defendant engages in unauthorized uses of and infringes Select Comfort’s

Trademarks and protectable trade dress.

22. Defendant has no rights in any of Select Comfort’s Trademarks or trade

dress.

23. Defendant’s domain names and websites sleepnumbercomparison.com,

selectcomfortcomparison.com, and dreamnumberbeds.com infringe and dilute Select

Comfort’s Trademarks.

24. As set forth in detail below, Defendant’s new name and website are one

part of an multi-facetted strategy to confuse, deceive, and misdirect the consumer from

their first Internet search for Select Comfort’s products—not Defendant’s products—to

the final online purchase of Defendant’s copy-cat product. In short, Defendant purchases

the Sleep Number® marks through Internet search engines like Google, uses confusing

links that incorporate Sleep Number® marks coupled with domain names that uses the

Sleep Number® mark, all to divert customers away from the Sleep Number® beds they

searched for online, to Defendant’s website, where Defendant now uses the name “Dream

Number” and a new website layout to replicate and trade off genuine Sleep Number®

beds and the Sleep Number® website.

25. Defendant purchases the search term “Select Comfort” through Google’s

Adwords program, and, on information and belief, through Yahoo! Search, ask.com, and

on Internet-based advertising platforms, including, Shopzilla.com, pronto.com, and

smarter.com.

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26. Defendant purchases the search term “Sleep Number” through Google’s

Adwords program, and, on information and belief, through Yahoo! Search, ask.com, and

on Internet-based advertising platforms, including, Shopzilla.com, pronto.com, and

smarter.com.

27. In part as a result of the above-described search term purchases, users

searching for Select Comfort products by inputting the search terms “Select Comfort” or

“Sleep Number” are presented links to Defendant’s website among the sponsored links

prominently displayed near the top of the search results page or the homepage for the

advertising website.

28. Defendant’s purchase and/or use of the keywords “Select Comfort” and

“Sleep Number” in Internet search engines and advertising sites, as referenced above,

was made with knowledge of Select Comfort’s rights in these marks.

29. Defendant’s purchase and/or use of the keywords “Select Comfort” and

“Sleep Number” in Internet search engines and advertising sites is intended as a means of

advertising its products on the internet.

30. Defendant’s purchase and/or use of the keywords “Select Comfort” and

“Sleep Number” in Internet search engines and advertising sites allows Defendant to use

and trade off of Select Comfort’s marks in commerce to promote, sell, offer for sale or

otherwise distribute Defendant’s own products.

31. Defendant’s purchase and/or use of the keywords “Select Comfort” and

“Sleep Number” in Internet search engines and advertising sites, alone and in conjunction

with its misleading and infringing headline links, domain names and website addresses

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that are presented to consumers, allows Defendant to mislead, misdirect, deceive, or

confuse the public at large and consumers seeking Sleep Number® beds and Select

Comfort’s goods, services, or website on the Internet.

32. Defendant purchased and/or used of the keywords “Select Comfort” and

“Sleep Number” in Internet search engines and advertising sites, and continues to do so,

to mislead, deceive and lure consumers, cause confusion, or divert customers seeking

Sleep Number® beds and Select Comfort’s goods, services, or website.

33. Defendant further attempts to deceive consumers, as well as Internet search

engine algorithms, such as Google, Yahoo! Search, and ask.com, by using Select

Comfort’s Trademarks in the meta-information for its websites and domain names and

through the use of confusing and infringing page headings displayed in the Internet

search results page, claiming that the link to its page at sleepnumbercomparison.com

leads to “Number Bed(Official Site).”

34. As one example, a user searching for “Sleep Number” products may be

shown a link to “Number Bed(Official Site)” at sleepnumbercomparison.com, as

reflected below, but this link leads to a website operated by Defendant.

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35. Defendant has wrongfully diverted sales from Select Comfort to Defendant.

36. Defendant has realized sales from customers who entered “Select Comfort”

or “Sleep Number” as search terms in Google, Yahoo! Search, ask.com, and other

Internet advertising websites.

37. Select Comfort has lost sales due to Defendant’s illegal purchase and/or use

of Select Comfort trademarks as keywords in Google, Yahoo! Search, ask.com, and other

Internet advertising websites.

38. Consumers who have searched for “Sleep Number” or “Select Comfort”

using Google, Yahoo.com, ask.com., and other online advertising websites have been

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confused, deceived, and/or mislead into believing that Defendant’s links will direct them

to Select Comfort’s Sleep Number® website, a website affiliated with Select Comfort,

and/or a website where they can purchase Sleep Number® beds and Select Comfort®

products online.

39. Similarly, consumers who have searched for “Sleep Number” or “Select

Comfort” using Google, Yahoo.com, ask.com., and other Internet advertising websites

have been confused, deceived, and/or mislead into believing that Defendant’s sales

claims and other advertising statements displayed on its paid links and headlines apply to,

are affiliated with, and/or are endorsed by Select Comfort and its Sleep Number products.

40. As such, Defendant has misled, deceived, and/or confused the public at

large and consumers seeking Sleep Number® beds and Select Comfort’s goods, services,

or website.

41. Consumers who click on the infringing and deceptive links Defendant uses

on Google, Yahoo.com, ask.com, and Internet advertising websites and are diverted to

Defendant’s websites, or otherwise visit Defendant’s websites, are subjected to further

deceptive and infringing uses of Select Comfort’s Trademarks.

42. Defendant’s prior website (operated under the name The Sleep Better

Store) and its current website (operated under the name Dream Number Beds) make

extensive and repeated uses of Select Comfort’s Trademarks, far beyond the minimal use

necessary to identify Select Comfort’s products for comparison purposes, and in a

manner likely to cause confusion among consumers.

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43. Such uses include but are not limited to the naming of written material with

Select Comfort’s trademarks. For example, Defendant’s prior website stated:

Defendant’s current website says the same, replacing “Sleep Number Bed” with “Dream

Number Bed”—an even closer copy of Select Comfort’s Sleep Number® Beds.

44. Defendant even included links purportedly leading consumers to specific

models of Select Comfort’s Sleep Number®beds, as shown on Defendant’s prior website:

Defendant’s current website included the same misleading links, as shown below, until

the Court entered a Temporary Restraining Order forbidding this conduct:

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45. Consumers who click on the links for Select Comfort’s Sleep Number®

Beds are instead sent to pages selling Defendant’s own products. These pages

deceptively suggest that the product available is the same as the Select Comfort product

reflected in the previously clicked link, as shown below on Defendant’s prior website:

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Defendant’s current website engaged in the same misleading scheme, as shown below,

until the Court entered a Temporary Restraining Order forbidding this conduct:

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46. Defendant’s “about our beds” page in its prior website further appropriates

Select Comfort’s Sleep Number® mark, claiming that “our adjustable air bed systems

come equipped with dual comfort settings that allow you and your partner to select your

desired sleep number.”

47. In addition, Defendant markets its air beds using a “3-series” through “10-

series” model lineup that mirrors the 2-through-10 numerical lineup used by Select

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Comfort in an effort to confuse and mislead consumers as to the difference between

Defendant’s air-beds and genuine Sleep Number® air-beds.

48. Defendant also uses the term “Number Bed” in a manner likely to create

confusion with Select Comfort’s Sleep Number® Bed, including but not limited to the

examples below from its prior website:

49. Defendant’s use of “Number Bed” to describe its competing air-bed

products infringes and dilutes Select Comfort’s Sleep Number® marks. It also misleads,

misdirects, deceives, and/or confuses the public at large and consumers as to origin of

Defendant’s products and some association with genuine Sleep Number® beds. For

example, by purchasing the Sleep Number® mark through Google Adwords, Defendant

misdirects and confuses consumers searching for genuine Sleep Number® beds on

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Google by presenting them with a misleading link to “Number Bed(Official Site)”

purportedly offered by the website www.sleepnumbercomparison.com. This link and

purported website address, however, do not direct consumers to their sought-after Sleep

Number® bed, nor even to a www.sleepnumbercomparison.com website, but, instead,

direct consumers to Defendant’s www.dreamnumberbed.com website, wherein it sells its

competing air-bed products. As another example, Defendant anomalously owns and

controls a purportedly neutral and independent comparison website called mattressfind.com (as discussed further below). This website further misleads and confuses

consumers by likening genuine Sleep Number® beds to “Sleep Better Number” beds sold

by the Defendant.

50. Defendant’s new name change to Dream Number goes even further, and is

an unmistakable effort to trade off the Sleep Number® marks. Dream Number, by itself,

and in combination with Defendant’s other infringing and unfair activities, infringes and

dilutes Select Comfort’s Trademarks. It is also likely to deceive and confuse consumers

as to the identity and source of genuine Sleep Number® beds and where they can be

found and purchased online.

51. Indeed, Defendant’s new Dream Number logo itself infringes and dilutes

the Select Comfort’s Trademarks, including the Sleep Number® marks, the Double

Arrow Logo, and the Sleep Number LogoTM, as the comparison below shows:

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As with Defendant’s purchase of Select Comfort’s Trademarks at the initial online search

step, and the infringing statements it uses on its website, Defendant’s new name and logo

are part of Defendant’s orchestrated strategy to mislead, deceive, and confuse the public

at large and consumers seeking real Sleep Number® beds and Select Comfort’s goods,

services, and website.

52. In fact, Defendant’s new Dream Number Beds website was clearly

designed to infringe Select Comfort’s Trademarks, trade dress, and more closely copy

Select Comfort’s overall website design, as the comparison on the next pages shows.

This tactic allows Defendant’s to continue to mislead and confuse consumers who were

initially searching online for Select Comfort® or Sleep Number® beds into believing

they have successfully reached a website where they can purchase such products, when in

fact they cannot.

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53. Defendant’s Dream Number website copies and infringes upon the trade

dress of Select Comfort’s website. For example, starting at the top left corner, Defendant

uses the design “dream number” with the words separated by the image of a controller, in

the same way the Sleep Number LogoTM appears in the top left corner of Select

Comfort’s website. In fact, Defendant even features the same number “35” on its

controller as Select Comfort does on its controller (shown on the bottom left corner of

Select Comfort’s site).

54. Defendant’s menu bar copies Select Comfort’s nearly verbatim. Select

Comfort provides four choices: Why Sleep Number?, Sleep Number Beds, Sleep Number

Pillows & Bedding, and Need Help? Defendant offers the same four options: why dream

number?, dream number beds, accessories, and Chat With Us! we’re here to help.

55. Moving to the bottom right corner of Defendant’s website, Defendant uses

the following design consisting of double-arrow circle with the term dual adjustable air

between the arrows, as shown below:

56. Defendant’s design infringes and dilutes Select Comfort’s federally

registered Double Arrow Logo, shown below, which has been in use since 2002:

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57. Defendant’s design also infringes Select Comfort’s use of the DualAirTM

trademark, and the DualAir Logo shown below, which is in use and is the subject of

appending United States trademark application:

58. Defendant has engaged in further infringing conduct through social media

such as Twitter and Facebook.

59. For example, on June 10, 2010, Defendant infringed Select Comfort’s

Sleep Number®and “What’s your Sleep Number?” trademark (U.S. Reg. No. 27/02762)

by posting “What’s your Sleep Better number?” on Defendant’s Twitter feed.

60. Similarly, on January 25, 2011, Defendant appropriated Select Comfort’s

Sleep Number® mark in responding to a customer comment on Facebook:

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61. On information and belief based on frequent consumer statements to Select

Comfort retail personnel, Defendant’s phone representatives instruct potential customers

that consumers can try out a bed at one of Select Comfort’s retail locations, but then

order the same bed online from Defendant for less.

62. Select Comfort’s mattresses are manufactured exclusively for Select

Comfort and are protected by several patents.

63. Defendant’s representations that it supplies beds materially identical to

those of Select Comfort are false.

64. Defendant infringes and dilutes Select Comfort’s Sleep Number® mark by

registering and using it in its sleepnumbercomparison.com domain name, which now

directs users to Defendant’s Dream Number Beds website.

65. Select Comfort’s Sleep Number® mark is distinctive and famous, and was

distinctive and famous as of February 14, 2008, when the sleepnumbercomparison.com

website was registered.

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66. The sleepnumbercomparison.com domain name is identical to or

confusingly similar to Select Comfort’s Sleep Number® mark.

67. Defendant had, and continues to have, a bad faith intent to profit from the

use of Select Comfort’s Sleep Number® mark in the sleepnumbercomparison.com

domain name.

68. Defendant also infringes and dilutes Select Comfort’s Sleep Number® mark

by registering and using it in its dreamnumberbeds.com domain name and website, in

which Defendant further infringes and dilutes Select Comfort’s Trademarks and trade

dress.

69. Select Comfort’s Sleep Number® mark is distinctive and famous, and was

distinctive and famous when the dreamnumberbeds.com website was registered and

launched.

70. The dreamnumberbeds.com domain name is nearly identical to or

confusingly similar to Select Comfort’s Sleep Number®beds mark.

71. Defendant had, and continues to have, a bad faith intent to profit from

Select Comfort’s Sleep Number® mark, inter alia, by using a confusing similar mark in

the dreamnumber.com domain name and website.

72. Defendant also infringes and dilutes the Select Comfort® mark by using it

in its selectcomfortcomparison.com domain name, which now directs users to

Defendant’s Dream Number Beds website.

73. The Select Comfort® mark is distinctive and famous, and was distinctive

and famous as at the time the selectcomfortcomparison.com website was registered.

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74. The selectcomfortcomparison.com domain name is identical to or

confusingly similar to the Select Comfort® mark.

75. Defendant had, and continues to have, a bad faith intent to profit from the

use of the Select Comfort® mark in the selectcomfortcomparison.com domain name.

76. Due to the deceptive and misleading conduct described herein, actual

consumer confusion exists as to Defendant’s affiliation with Select Comfort or as to

whether Select Comfort is the source of Defendant’s products.

77. Select Comfort retail customers have frequently been confused as to

Defendant’s affiliation with Select Comfort, asking sales people to honor the prices they

saw Select Comfort advertising at the Sleep Better Store, believing that the Sleep Better

Store was affiliated with Select Comfort.

78. Even Facebook postings that Defendant displays on its own website

indicate that consumers are confused between Defendant’s products and Select Comfort’s

Sleep Number® Bed:

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79. More recent Facebook postings confirm that consumers are confused

between Defendant’s products and Select Comfort’s Sleep Number® Bed:

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80. Defendant is aware of this consumer confusion and does not attempt to

correct it by, inter alia, publicly responding that it does not, and cannot, sell Sleep

Number® beds, at any price. To the contrary, Defendant exacerbates the consumer

confusion by endorsing the consumer’s mistaken comment through a “like” post on

Facebook, as shown below:

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81. In another prominent and damaging instance of actual consumer confusion,

an internationally-known musician with over 100,000 Twitter followers “tweeted” that

the musician’s new “Sleep Number Bed” was difficult to assemble because it was

missing parts and poorly built, and telephone customer service representatives were rude.

It was quickly learned that the musician had in fact purchased and was trying to assemble

a bed from the Defendant, mistakenly believing it to be an authentic Sleep Number Bed

manufactured by Select Comfort.

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82. Defendant’s website includes additional uses of or variations on Select

Comfort’s trademarks, beyond those specifically described herein, that are likely to cause

confusion among consumers.

83. Defendant began its uses of Select Comfort’s Trademarks as described

herein long after Select Comfort began using said marks.

84. The products which Defendant advertises and sells in connection with its

unauthorized use of Select Comfort’s Trademarks are highly related and competitive with

the products sold by Select Comfort in connection its Trademarks.

85. By incorporating and using Select Comfort’s Trademarks and trade dress,

Defendant is unfairly trading on the good will and reputation for high quality earned by

Select Comfort over the years.

86. The unauthorized use of Select Comfort’s Trademarks and trade dress by

Defendant in the manner described above is likely to cause confusion and/or deceive

customers and potential customers of the parties, as to some affiliation, connection or

association of Defendant with Select Comfort, or as to the origin, sponsorship, quality, or

approval of the goods of Defendant by Select Comfort.

87. The unauthorized use of Select Comfort’s Trademarks and trade dress by

Defendant in the manner described above falsely designates the origin of the goods of

Defendant, and falsely and misleadingly describes and represents facts with respect to

Defendant and the goods of Defendant.

88. The unauthorized use of Select Comfort’s Trademarks and trade dress by

Defendant in the manner described above enables Defendant to trade on and receive the

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28

benefit of good will in Select Comfort’s trademarks which Select Comfort has built up at

great labor and expense over many years. This unauthorized use by Defendant also

enables Defendant to gain acceptance for its own goods, not solely on the merits of those

goods, but on the reputation and good will of Select Comfort and its own trademarks.

89. The unauthorized use of Select Comfort’s trademarks and trade dress by

Defendant in the manner described above is directed to the public at large and enables

Defendant to mislead, deceive, and/or confuse consumers into believing that they are

purchasing genuine Select Comfort goods and services, when in fact they are not.

90. Indeed, the examples enumerated above show that Defendant’s tactics have

already succedded in confusing, deceiving and misleading consumers. Just like the

international musician discussed above, consumers have been confused and deceived by

Defendant’s advertising tactics into thinking they purchased genuine Sleep Number®

beds, when if fact they have not.

91. The Sleep Number®and Select Comfort®trademarks, the Double Arrow

Logo, and the Sleep Number LogoTM are famous marks as that term is defined in 15

U.S.C. 1125(c)(1).

92. The unauthorized use of the Sleep Number®and Select Comfort®

trademarks, the Double Arrow Logo, and the Sleep Number LogoTM by Defendant in the

manner described above is likely to dilute the distinctive quality of the Sleep Number®,

Select Comfort® marks, the Double Arrow Logo, and the Sleep Number LogoTM.

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29

93. The unauthorized use of Select Comfort’s Trademarks and trade dress by

Defendant in the manner described above unjustly enriches Defendant at Select

Comfort’s expense.

94. The unauthorized use of Select Comfort’s Trademarks and trade dress by

Defendant in the manner described above removes from Select Comfort the ability to

control the nature and quality of the products provided under those marks and places the

valuable reputation and good will of Select Comfort in the hands of Defendant, and

others, over whom Select Comfort has no control.

95. The unauthorized use of Select Comfort’s Trademarks and trade dress by

Defendant in the manner described above is false and misleading.

96. Select Comfort has provided notice to Defendant of the improper use of

Select Comfort’s marks and trade dress and demanded that Defendant cease the

unauthorized uses of such. Defendant failed and refused to comply with Select

Comfort’s rightful requests and demands.

97. Defendant or its agents also own and operate a website using the domain

name mattress-find.com.

98. The mattress-find.com website is anonymously registered, and is presented

as an unbiased mattress review and comparison site. In this way, Defendant is able to

mislead, deceive, or confuse the public at large and consumers into believing that they

have reached a neutral, unbiased website that compares different air-beds, when in fact

they have not.

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30

99. Indeed, the mattress-find.com is actually a front for Defendant’s own

agents or affiliates to attempt to direct consumers to Defendant’s products at the expense

of other manufacturers, including by not limited to Plaintiff, by falsely suggesting their

“comparisons” or “reviews” are unbiased.

100. While the mattress-find.com website presents bare-bones “comparison”

information about major inner-spring mattress manufacturers, the website presents

extensive discussion about comparisons between the world’s major airbed and memory

foam mattresses (Select Comfort and Tempur-Pedic) and Defendant’s own products

offered under the Sleep Better Store (now Dream Number Beds) and “AngelBeds”

brands.

101. The “Sleep Number Store” and “AngelBeds” are both operated by

Defendant or its agents or affiliates, as the design of the sleepnumberstore.com and

angelbeds.com websites are substantially identical, and the address and local phone

number for each website’s “factory direct showroom” are identical.

102. In suggesting that it offers an unbiased comparison between Select

Comfort’s and Defendant’s products, mattress-find.com instead states that the Sleep

Better Store is, along with Select Comfort, one of the “most well known” manufacturers

of adjustable beds. It states that while Select Comfort sells “Sleep Number Beds,”

Defendant sells “Sleep Better Number” beds. The “review” then attempts to lead

consumers to choose Defendant’s products by concluding that Defendant’s products and

Select Comfort’s products are “almost identical in construction, warranty and guarantee,

with the Sleep Better Store clearly winning when it comes to prices.” MattressCase: 1:12-cv-05244 Document #: 1-1 Filed: 07/02/12 Page 32 of 66 PageID #:42 CASE 0:11-cv-00621-JNE-JSM Document 49 Filed 01/03/12 Page 30 of 41
31

find.com’s “comparison” then provides a number of positive reviews of the Sleep Better

Store that are identical to those found on Sleep Better Store’s website.

103. Defendant’s efforts to direct business to themselves by presenting

consumers with “comparisons” that suggest to consumers that they are unbiased, when in

fact the source of the “comparisons” is Defendant itself is false, deceptive, or misleading

to the public at large and consumers.

104. Defendant’s failure to disclose to visitors of the mattress-find.com website

that mattress-find.com is owned and operated by Defendant, while mattress-find.com

instead purports to be merely a source of information “to elevate your knowledge and

approach to find the right mattress for you,” is false, deceptive, and misleading to the

public at large and consumers. Based on Defendant’s actions, visitors and consumers who

visit the mattress-find.com are tricked into believing they have reached an independent

website with unbiased product reviews, when in fact they have not.

105. In addition, Defendant’s mattress-find.com website makes extensive and

repeated uses of Select Comfort’s Trademarks, far beyond the minimal use necessary to

identify Select Comfort’s products for comparison purposes, and in a manner likely to

cause confusion among consumers.

106. Defendant’s sleepbetterstore.com, sleepnumbercomparison.com,

selectcomfortcomparison.com, and dreamnumberbeds.com domain names and/or

websites have claimed, and continue to claim, that Defendant’s products are “Proudly

Made in the USA.”

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32

107. Based on Select Comfort’s extensive corporate knowledge and research

about the supply and manufacture of adjustable firmness airbeds, Select Comfort alleges

that the air chambers used in Defendant’s airbeds, and perhaps other components, are not

manufactured in the United States.

108. As a result, Defendant’s representations that its products are “Made in the

USA” are false, deceptive, or misleading, violate Federal Trade Commission regulations,

and harm the public because they wrongfully mislead or deceive customers into believing

they are purchasing products “Made in the USA,” when in fact they are not.

109. On its prior website, Defendant claimed to offer a “20 year warranty” with

“up to 5 years of full coverage” as depicted below:

110. Defendant’s current website similarly claims to offer a “5 year full”

warranty, as shown below:

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33

111. However, Defendant limits these warranties by, for example, making the

warranty non-transferable and requiring return shipping at the customer’s expense after

two years from the purchase date.

112. No warranty offered by Defendant is a “full warranty” as provided by

federal law.

113. Defendant’s claims and representations with respect to its warranty harms

the public because it misleads or deceives consumers into believing they are purchasing

air-bed products with “up to five years of full coverage” and/or a “5 year full” warranty,

when in fact they are not.

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34

114. Defendant’s statements regarding its warranties are false, deceptive,

misleading and cause harm to the public and consumers.

115. Defendant has also presented health-related testimonials that are deceptive

because they lack independent substantiation or objective support.

116. Such testimonials include but are not limited to: “My wife has had

incredible relief from her osteo arthrisis back pain that she has been troubled with for

several years since using it the first night;” and “I wake up with no back pain or leg

numbness! I was preparing to undergo another series of spinal injections, but see no point

in doing so now!” and “It's only a week or two and it's almost magical - the ‘lower back

pain’ is gone, and I awaken actually rested!”

117. Defendant’s use of such testimonials is false, deceptive, or misleading.

118. Defendant expects that consumers will rely on Defendant’s false, deceptive,

or misleading representations in purchasing products from Defendant.

119. Consumers do rely, and have relied, on Defendant’s false, deceptive, or

misleading representations in purchasing products from Defendant and have therefore

been misled and harmed by Defendant’s tactics.

120. Defendant’s acts as described above have violated or injured the public’s

and consumers’ ability to make accurate and informed purchasing decisions free from

false, misleading, deceptive, and unfair representations and trade practices.

121. Defendant’s acts as described above have injured Select Comfort by, inter

alia, diverting customers from Select Comfort.

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35

122. Defendant’s false, deceptive, or misleading representations and trade

practices described herein are directed to, and injure, the public at large and Minnesota

consumers.

123. Defendant’s acts complained of herein were and continue to be committed

willfully and intentionally.

124. Select Comfort has suffered and will continue to suffer monetary damages

as a result of Defendant’s wrongful acts.

125. Defendant’s activities have caused irreparable injury to Select Comfort,

Minnesota consumers, and the public at large and, unless enjoined by this Court, will

continue to cause irreparable injury to Select Comfort, Minnesota consumers, and the

public at large. There is no adequate remedy at law for this injury.

COUNT ONE

FEDERAL TRADEMARK INFRINGEMENT

126. Select Comfort repeats the allegations above as if fully set forth herein.

127. The acts of Defendant complained of herein constitute infringement of

Select Comfort’s Trademarks in violation of 15 U.S.C. § 1114(1).

128. Defendant’s conduct has been willful and in bad faith making this an

exceptional case within the meaning of 15 U.S.C. § 1117(a).

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36

COUNT TWO

FEDERAL UNFAIR COMPETITION

129. Select Comfort repeats the allegations above as if fully set forth herein.

130. The acts of Defendant complained of herein constitute trademark

infringement, trade dress infringement, unfair competition, and false designation of origin

in violation of 15 U.S.C. § 1125(a).

COUNT THREE

FEDERAL DILUTION OF TRADEMARK

131. Select Comfort repeats the allegations above as if fully set forth herein.

132. The acts of Defendant complained of herein constitute trademark dilution in

violation of 15 U.S.C. § 1125(c).

COUNT FOUR

FEDERAL CYBERPIRACY

133. Select Comfort repeats the allegations above as if fully set forth herein.

134. The acts of Defendant complained of herein constitute cyberpiracy in

violation of 15 U.S.C. § 1125(d).

COUNT FIVE

FALSE ADVERTISING – 15 U.S.C. § 1125(a)

135. Select Comfort repeats the allegations above as if fully set forth herein.

136. The acts of Defendant complained of herein constitute the making of false

representations, claims and statements in connection with goods distributed in interstate

commerce in violation of 15 U.S.C. § 1125(a).

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37

COUNT SIX

DECEPTIVE TRADE PRACTICES

137. Select Comfort repeats the allegations above as if fully set forth herein.

138. The acts of Defendant complained of herein constitute deceptive trade

practices in violation of the Minnesota Uniform Deceptive Trade Practices Act, Minn.

Stat. § 325(D).44 et seq.

COUNT SEVEN

UNLAWFUL TRADE PRACTICES

139. Select Comfort repeats the allegations above as if fully set forth herein.

140. The acts of Defendant complained of herein constitute violations of the

Minnesota Unlawful Trade Practices Act, Minn. Stat. § 325D.09 et seq., including,

without limitation, § 325D.15.

141. In addition, Select Comfort proceeds under the Private Attorney General

Statute, Minn. Stat. § 8.31, subd. 3a, seeking to protect and vindicate the public by, inter

alia, suppressing and preventing Defendant’s unfair, misleading, deceptive, or fraudulent

representations and/or trade practices directed to the public at large and Minnesota

consumers, as described herein.

COUNT EIGHT

FALSE STATEMENTS IN ADVERTISING

142. Select Comfort repeats the allegations above as if fully set forth herein.

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38

143. The acts of Defendant complained of herein constitute false statements in

advertising in violation of the Minnesota False Statement in Advertising Act, Minn. Stat.

§ 325F.67.

144. Select Comfort proceeds under the Private Attorney General Statute, Minn.

Stat. § 8.31, subd. 3a, seeking to protect and vindicate the public by, inter alia,

eliminating and preventing Defendant’s untrue, deceptive or misleading assertions,

representations or statements directed to the public at large and Minnesota consumers, as

described herein

COUNT NINE

CONSUMER FRAUD

145. Select Comfort repeats the allegations above as if fully set forth herein.

146. The acts of Defendant complained of herein constitute consumer fraud in

violation of the Minnesota Consumer Fraud Act, Minn. Stat. § 325F.69 et seq.

147. Select Comfort proceeds under the Private Attorney General Statute, Minn.

Stat. § 8.31, subd. 3a, seeking to protect and vindicate the public by, inter alia,

eliminating and preventing Defendant’s false promises, misrepresentations, misleading

statements, or deceptive practices directed to the public at large and Minnesota

consumers, as described herein

COUNT TEN

UNJUST ENRICHMENT

148. Select Comfort repeats the allegations above as if fully set forth herein.

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39

149. The acts of Defendant complained of herein constitute unjust enrichment of

Defendant at Select Comfort’s expense.

PRAYER FOR RELIEF

WHEREFORE, Select Comfort prays for judgment as follows:

1. A permanent injunction enjoining and restraining Defendant and its agents,

employees, officers, servants, representatives, successors and assigns and others in active

concert or in participation with Defendant:

a. from the use, in any manner whatsoever, including keyword

purchasing, of the Trademarks-At-Issue, or combinations or

variations thereof, including phonetic equivalents;

b. from using any of the false and/or misleading advertising statements

described above;

c. to deliver up for destruction, or otherwise destroy all advertising and

promotional materials containing any use of the Trademarks-AtIssue or any false or misleading statements;

d. to forfeit, cancel, and/or transfer to Select Comfort the domain

names and/or websites: sleepnumbercomparison.com,

selectcomfortcomparison.com, and dreamnumberbeds.com;

e. to forfeit, cancel, and/or provide a conspicuous disclaimer at the top

of all pages of the mattress-find.com website clearly informing

visitors that the website is owned and operated by Defendant, who

sells mattresses, and therefore the website does not provide neutral,

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40

unbiased information or comparisons regarding air-beds and

mattresses.

f. with such injunction including a provision directing Defendant to

file with the Court and serve on Select Comfort within thirty (30)

days following the injunction a report in writing, and under oath,

setting forth in detail the manner and form in which Defendant has

complied with the injunction.

2. Requiring an accounting of profits made by Defendant as a result of the

acts complained of herein;

3. Requiring a payment of damages in an amount to be proven at trial, lost

profits, and/or disgorgement of all profits and/or ill-gotten gains made by Defendant as a

result of the acts complained of herein;

4. Awarding damages equal to three times the amount suffered as provided by

15 U.S.C. § 1117, together with attorneys’ fees;

5. Awarding prejudgment interest; and

6. Awarding Select Comfort its costs, disbursements, and attorneys’ fees,

together with such other and further relief as this Court may deem just and equitable.

///

///

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41

JURY DEMAND

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Select Comfort

requests a trial by jury on all claims and issues triable by jury.

Dated: January 3, 2012 OPPENHEIMER WOLFF & DONNELLY LLP

By: s/ Andrew S. Hansen

Andrew S. Hansen (# 285894)

Samuel R. Hellfeld (#309954)

3300 Plaza VII Building

45 South Seventh Street

Minneapolis, Minnesota 55402

Telephone: (612) 607-7000

Fax Telephone: (612) 607-7100

ATTORNEYS FOR PLAINTIFF SELECT

COMFORT CORPORATION

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Int. Cis.: 20 and 24

Prior U.S. Cis.: 2, 13,22,25,32,42, and 50

. U oited States Patent and Trademark Office

Reg. No. 2,753,633

Regired Aug. 19, 2003

TRAEMA

PRICIAL REGISTE

SLEEP NUER

SELECT COMFORT CORPORATION (MINNESO- FIRST USE 4-0-2001; IN COMMERCE 4-0-2001.

TA CORPORATION)

6105 TRENTON LA NORTH

PLYMOUTH, MN 55442 OWNR OF U.S. REG. NO. 2,149,899.

FOR: BEDS, MATTRESSES AND PILLOWS, IN

CLASS 20 (U.S. CLS. 2, 13; 22, 25, 32 AN 50). SEC. 2(F).

FIRST USE 5-29-2002; IN COMMERCE 5-29-2002. SN 76-122,213, FILED 9-5-2000.

FOR: COMFORTERS AN.MATTRES PADS, IN CLSS 24 (U.S. CLS.42 AN 50). KEON CHSOLM, EXG ATTORN

EXHBIT A

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i

Int a.: 20

. Pror U.s. CI.: 2, 13,22,25,32, and 50

United States Patent and Trademark Office

Reg. No. 2,618,999

. Regtere Sep. 10, 2002

. TREM

PlUCIAL REGISTE

SLEEP NUER

SELECT COMFORT CORPORATION (MINNSOTA CORPORATION)

6105 TRENTON LA NORTH

MIOLIS, MN 5542

. FOR: HAHELD REMOTE CONTOL SOLD AS

AN INßGRA COMPONE OF AN ADJUSTABLE AI BED, THT ELECTRONICALLY CONTROLS TH AMOUN OF AI WIT TH BED'S

AI CHMBER, IN CLAS 20 (U.S. CL. 2, 13, 22, 25,

. 32 AN 50).

FIRS USE 6-1-2001; IN COMMERCE 6-1-2001.

OWNER OF U.S. REG. NO. 2,149,899.

NO CLAIM is MADE TO THE EXCLUSIVE

MAK AS SHOWN. . RIGHT TO USE "SLEEplI, APART FROM TH

SN 78-026,445, FILED 9-18-2000.

WILLIA JACOBI, EXING ATTORN

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Int- a.: 35

Prior U.s. CI: 100, 101, and.102

United States Patent ..and Trademark Office

SERVICE. MA

PRiCIPAL REGISTE

Reg. No. 2,641,045

Reer Oct 22, 202

SLEEP NUER

SELECT COMFORT CORPORATION (MINSOTA CORPORATION)

6105 TRNTON LA NORTH

MILIS, MN 5542

FOR: REAIL STORE SERVICE, ON-LIN RE

TAIL SERVICE, MA ORDER SERVICES AN

TELEPHONE SHOP AT HOME SERVICES, ALL

FEATURING BEDS, MATTRESSES, PILLOWS,

MATTS PADS, BED FRAS, SOFA BEDS,

FURNITURE AND ACCESSORIES, NAMELY,

SHES AN BLATS, IN CLS 35 (U.S. CLS.

100,101 AN 102).

FI USE 4-1-2001; IN COMMRCE 4-1-2001.

OWNR OF U.S. RE. NO. 2,149,899.

NO CLAIM IS MAE TO TH EXCLUSIVE

RIGHT TO USB "SLBBII, APART FROM TH

MAR AS SHOWN.

SN 78-026,452, FIED 9.18.20.

WILIA JACOBI, BXG ATTORN

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Int. CI.: 20, 24 and 35

. Prior U.s. Cis.: 2, 13, 22, 25, 32, 42, 50, 100, 101 and

102

United States Patent and Trademark Office

Reg. No. 2,702,762

Regitered Apr. 1, 2003

TRAEM

SERVICE MA

PRICIAL REGISTE

WHT'S YOUR SLEEP NUER?

SELECT COMFORT CORPORATION (MINNSOTA CORPORATION)

6105 TRENTN LAE NORTH

MlAPOLIS, MN 55442

FOR: BEDS, MATTRESSES, BOX SPRIGS, BED

FRA, HEBOARS, FOOTBOARS, ADJUSTABLE FOUNATIONS FOR BEDS AN MAT.

TRESSES, ADJUSTABLE BEDS, SOFA BEDS,

PILLOWS, BOLSTERS, FURNURE, AN NON.

METAL BED FITINGS, IN CLASS 20 (U.S. CLS. 2, 13,

22, 25, 32 AN 50).

FIRT USE 7-1-2002; IN COMMERCE 7-1-2002.

FOR: BEDROOM ACCESSORIES, NAMELY,

MATTRESS PADS, BBD SHEETS, PILLOW CASES,

BLANS, COMFORTERS, BEDSPRES, COMFORTER COVERS, BED COVERS, PILLOW PROTECTORS, AND MATTRESS PROTECTORS, IN

CLASS 24 (U.s. CLS. 42 AN 50).

FIRST USE 7-1-2002; IN COMMERCE 7-1-2002.

FOR: RETAIL STORE SERVICES, ON-LIN RE

TAIL SERVICES, MAI ORDER SERVICES AND

TELEPHONE SHOP AT HOME SERVICES, AL

FEATUG BEDS, MATTRESES, BOX SPRIGS,

BED FRA, HEADBOARS, FOOTBOARDS, AD.

JUSTABLE FOUNATIONS, ADJUSTABLE BEDS,

SOFA BEDS, FUNITURE, PILLOWS, BED FITTIGS, AN BEDROOM ACCESORIS, NAMLY, .

MATTSS PADS, BED SHEET, PILLOW CASES,

BLANS, COMFORTERS, BEDSPRES, COMFORTER COVBRS, BED COVERS, PILLOW PRO.

TECTORS, AND MATTRESS PROTECTORS, IN

CLAS 35 (U.S. CLS. 100, 101 AN 102). .

FIRST USE 7-1-2002; IN COMMERCE 7-1-2002.

OWNR OF U.S. REG. NOS. 2,149,899, 2,641,045

AN OTHRS.

SER. NO. 78-157,191, FIED 8-23-2002.

ELIZETH HUGHIT, EXAG ATTORNY

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Int. C1.: 20

Prior U.S. CI.: 32

United States Patent and Trademark Offce

Amended

Reg. No. 1,581,562

Registered Feb. 6, 1990

OG Date Mny 21, 1996

TRADEMARK

PRINCIPAL REGISTER

SELECl COMFORT

SELECT COMFORT CORPORATION

(MINNESOTA CORPORATION)

SUITE 100

6105 TRENTON LANE NORTH

MINNEAPOLIS. MN 55442

FOR: AIR ßEDS. AIR PILLOWS, AIR

MATIRESSES, AIR SOFA BEDS AND

FOAM BORDER FRAMES FOR AIR

ßEDS, IN CLASS 20 (U.S. CL. 32).

FIRST USE 7-0-1987; IN COMMERCE

7-0-1987.

SER. NO. 73-785,220, FILED 3-7-1989.

In testimony whereof 1 have hereunto set my hand

and caused the seal of The Patent and Trademark

Office to be affxed all May 21. 1996.

COMMISSIONER OF PATENTS AND TRADEMARKS

EXHBIT B

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,i

......... ."-"',...... "." .... .,

. '.' . .1,, ~ ".

Int. C1,: 7

Prior U.S. C1.: 23

United States Patent and Tra!lemark Office

Amended

Reg, No. 1,590,557

R~isteted Apr. 10, 199b i..

ef:Dnìc Mny 14, 1996

..-'10

TRADEMARK

PRICIAL REGISTER

SELECI COMFORT

SELEC COMFORT CORPORATION

(MINOTA CORPORATION)

SUITE 100

6105 TRENTON LANE NORTII

MINNEAPOLIS, MN 55442

OWNER OF U.S. REG. NO. 785,220.

FOR: PNEUMA TIC PUMPS I'OR AIR

BEDS AND PARTS THEREFOR, IN,'

CLASS 7 (U.S. CL. 23).

FIRST USE 7-01987;' IN COMMERCE

7-0-1987.

. SER. NO. 73-818.656, FILED 8-11-1989:

In testimony whereof I have hereunto set my hand

and caused the seal of The Pateiit and Trademark

Offce to be affxed on May 14, 1996.

COMMISSIONER OF PATENTS ANó TRADEMRKS

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Int. Cl.: 7

Prior U.S. Cl.: 23 . . Reg. No. 1,590,557

United States Patent and Trademark Offce' ,Regite Apr. 10, 190

PRICIAL REGISTER

TREM

ø~

SELECT COMFORT CORPORATION (MIN

SOTA CORPORATION)

11010 . 89TH AVENU NORTH

MAPLE GROVE, MN 55369

FOR:' PNEUMATIC PUMS FOR AIR BEDS

AN PARTS THFOR, IN CLASS 7 (U.S. CL.

23).

FIRST USE 7-01987; IN COMMRCE

7-01987.

OWNR OF U.S. RE. NO. 785,220.

SER. NO. 73-818,656, FIED 8-11-1989.

RICH A. STRER, EXG ATTR.

NEY

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Int. Cl.: 20

Prior U.s. CIs.: 2, 13, 22, 25, 32 and 50 .' Reg. No. 1,976,214

United States Patent and Trademark Office Registered May 28, 1996

TRADEMARK

PRINCIPAL REGISTER

SELECT COMFORT

SELECT COMFORT CORPORATION (MINNE- .

SOTA CORPORATION)

6105 TRENTON LANE NORTH.

MINNEAPOLIS, MN 55442

FIRST USE 7-0-1987; IN' COMMERCE

7-0-1987.

OWNER OF U.S. REG. NOS. 1,581,562 AND

1,590,557.

FOR: AIR BEDS, AIR PILLOWS, MA TfRESS- .

ES WITH AIR CHAMBERS, AIR SOFA BEDS, . SER. NO. 74-65,357, FILED 3-13-1995.

FOAM BOARDER FRAMES FOR AIR BEDS,

VALUE ADDED' MATfRESS COVERS AND

FOUNDATIONS FOR AIR BEDS, IN CLASS 20 CHERYL S. GOODMAN, EXAMINING ATfOR-

(U.S. CLS. 2, 13, 22, 25, 32 AND SO). NEY

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Int Os.: 20, 24 and 35

Prior U.S. CIS.: 2, 13, 22, 25, 32, 42, 50, 100, 101 and

102

United States Patent and Trademark Office

Reg. No. 2,702,763

Regitered Apr. 1,2003

TRAEMA

SERVICE MA

PRICIAL REGISTE

SELECT COMFORT

SELECT COMFORT CORPORATION (MINSOTA CORPORATION)

6105 TRON LANE N.

~~LIS, MN 55442

FOR: BEDS, MATTRESES, BOX SPRIGS, BED

FRAES, HEADBOARS, FOOTBOARDS, ADJUSTABLE FOUNATIONS FOR BEDS AN MATTRESSES, ADJUSTABLE BEDS, SOFA BEDS,

PILLOWS, BOLSTERS, FURNITURE, AN NONMETAL BED FITG, IN CLS 20 (U.S. CLS, 2, 13,

22, 25, 32 AN 50).

FIRT USE 7-0-1987; IN COMMERCE 7-0-1987.

FOR: BEDROOM ACCESSORIES, NAMELY,

MATTRESS PADS, BED SHEETS, PILLOW CASES,

BLAS, COMFORTERS, ,BEDSPRES, COMFORTER COVERS, BED COVERS, PILLOW PROTECTORS, AND MATTRESS PROTECTORS" IN

CLASS 24 (U.S. CLS. 42 AND 50).

FIRST USE 4-0-1994; IN COMMERCE 4-0-1994.

FOR; REAI STORE SERVICÈS, ON-LIN RE

TAI SERVICES, MA ORDER SERVICES AN

TELEPHONE SHOP AT HOME SERVICES, ALL

FEATURIG BEDS, MATTRESES, BOX SPRIGS,

BED FRS, HEADBOARS, FOOTBOARS, AD.

JUSTABLE FOUNATIONS, ADJUSTABLE BEDS,

SOFA BEDS, FURNURE, PILLOWS, BED FITTIGS, AND BEDROOM ACCESSORIS, NAMELY,

MATTRESS PADS, BED SHEETS, PILLOW CASES,

BLATS, COMFORTERS, BEDSPRES,'COMFORTER COVERS, BED COVERS, PILLOW PROTECTORS, AN MATTRESS PROTECTORS, IN

CLASS 35 (U.S. CLS. 100, 101 AN 102).

FIRST USE 7-0-1987; IN COMMERCE 7-0-1987.

OWNR OF U.S. REG. NOS. 1,581,562, 1,590,557,

AND 1,976,214.

SER. NO. 78-163,485, FID 9-12-2002.

ELlZAE' HUGHITT, EXG ATTORNY

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Int. a.: 35

Prior U.S. as.: 100, 101, and 102

United States Patent and Trademark Office

Reg. No. 2,801,405

Regitered Dec. 30, 203

SERVICE MA

PRICIAL REGISTER

o

select comfort

SELECT COMFORT CORPORATION (MINNESOTA CORPORATION)

6105 TRENTON LANE NORTH

PLYMOUT, MN 55442

FOR: RETAI STORE SERVICES, ON-LIN RETAIL SERVICES, MAI ORDER SERVICES AN

TELEPHONE SHOP AT HOME SERVICES, ALL

FEATUNG BEDS, MATIRESSES, BOX SPRIGS,

BED FRAES, HEADBOARS, FOOTBOARS, ADJUSTABLE FOUNATIONS, ADJUSTABLE BEDS,

SOFA BEDS, FURRE, PILLOWS, BED FITIGS, AN BEDROOM ACCESSORIS, NAMELY,

MATIRES PADS, BED SHEETS, PILLOW CASES,

BLANTS, COMFORTERS, BEDSPREADS, COMFORTER COVERS, BED COVERS, PILLOW PRO.

TECTORS, AND MATIRESS PROTECTORS, IN

CLASS 35 (U.S. CLS, 100, 101 AND 102).

FIRST USE 6-1-2002; IN COMMERCE 6-1-2002.

OWNER OF U,S, REG, NOS. 1,581,562, 1,976,517,

AN OTHERS.

THE MA CONSISTS OF THE WORDS "SELECT

COMFORT" WIH A BLUE CIRCLE, CONTAIG

TWO AROWS, TO THE LEFT OF THE WORDS;

THE CIRCLE IS BLUE, AN THE COWR BLUE IS

CLAIED AS A FEATU OF THE MAR,

SN 78-125,239, FIED 4-30-2002,

ELIZETH HUGHI, EXAING ATIORNY

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Int. CIs.: 20, 24, and 35

Prior U.S. as.: 2, 13, 22, 25, 32, 42, 50, 100, 101, and

102

Reg. No. 2,803,623

U nIted States Patent and Trademark Office Regitered Jan. 6, 204

TRAEMA

SERVICE MA

PRICIAL REGISTER

selecteco.mfort

SELECT COMFORT CORPORATION (MINNESOTA CORPORATION)

6105 TRENTON LANE NORTH

PLYMOUT, MN 55442

FOR: BEDS, MA'IRESSES, BOX SPRIGS, BED

FRA, HEADBOARS, FOOTBOARS, ADJUS.

TABLE FOUNATIONS FOR BEDS AN MAT.

TRESSES, ADJUSTABLE BEDS, SOFA BEDS,

PILLOWS, BOLSTERS, FUTU, AN NONMETAL BED FIGS, IN CLASS 20 (U.S, CLS, 2, 13,

22, 25, 32 AN 50).

FIRST USE 8-0-2002; IN COMMERCE 8-0-2002,

FOR: BEDROOM ACCESSORIES, NAMELY,

MA'IRES PADS, BED SHEETS, PILLOW CASES,

BLANTS, COMFORTERS, BEDSPREADS, COMFORTER COVERS, BED COVERS, PILLOW PRO.

TECTORS, AND MA'IRESS PROTECTORS, IN

CLASS 24 (U.S, CLS, 42 AN 50).

FIRST USE 1-0-2003; IN COMMERCE 1-0-2003.

FOR: RETAI STORE SERVICES, ON-LINE RETAI SERVICES, MAI ORDER SERVICES AN

TELEPHONE SHOP AT HOME SERVICES, ALL

FEATUG BEDS, MATTESSES, BOX SPRIGS,

BED FRAES, HEADBOARS, FOOTBOARS, ADJUSTABLE FOUNATIONS, ADJUSTABLE BEDS,

SOFA BEDS, FURTURE, PILLOWS, BED FITTIGS, AN BEDROOM ACCESSORIES, NAMELY,

MA'IRESS PADS, BED SHEETS, PILLOW CASES,

BLANTS, COMFORTERS, BEDSPREADS, COMFORTER COVERS, BED COVERS, PILLOW PRO.

TECTORS, AND MA'IRESS PROTECTORS, IN

CLASS 35 (U.S. CLS. 100, 101 AN 102),

FIRST USE 6-1-2002; IN COMMERCE 6-1-2002,

OWNER OF U.S. REG. NOS, 1,581,562, 1,976,517,

AN OTHRS.

THE DRAWIG IS LIND FOR THE COLOR

BLUE AN THE COLOR IS CLAIED AS A FEATURE OF THE MAR.

THE MA CONSISTS OF THE WORDS "SELECT

COMFORT" WIT A BLUE CIRCLE, CONTAIG

TWO AROWS, BETWEEN THE TWO WORDS; THE

CIRCLE IS BLUE.

SN 78-125,228, FIED 4-30-2002.

ELIZBETH HUGHI, EXAING A'IORNEY

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PTO Form 1478 (Rev 9/2006)

OMB No. 0651-0009 (Exp 12/31/2011)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 85363543

Filing Date: 07/05/2011

NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears

where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

Input Field Entered

TEAS Plus YES

MARK INFORMATION

*MARK

\\TICRS\EXPORT11\IMAGEOUT

11\853\635\85363543\xml1\ FTK0002.JPG

*SPECIAL FORM YES

USPTO-GENERATED IMAGE NO

LITERAL ELEMENT DUALAIR TECHNOLOGY INSIDE

*COLOR MARK NO

*COLOR(S) CLAIMED

(If applicable)

*DESCRIPTION OF THE MARK

(and Color Location, if applicable)

The mark consists of the word "DUALAIR"

above the words "TECHNOLOGY INSIDE"

to the right of a circle containing two arrows.

PIXEL COUNT ACCEPTABLE YES

PIXEL COUNT 640 x 271

REGISTER Principal

APPLICANT INFORMATION

*OWNER OF MARK Select Comfort Corporation

*STREET 9800 59th Avenue N

*CITY Plymouth

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*STATE

(Required for U.S. applicants) Minnesota

*COUNTRY United States

*ZIP/POSTAL CODE

(Required for U.S. applicants only) 55442

LEGAL ENTITY INFORMATION

*TYPE CORPORATION

* STATE/COUNTRY OF INCORPORATION Minnesota

GOODS AND/OR SERVICES AND BASIS INFORMATION

*INTERNATIONAL CLASS 020 

IDENTIFICATION Beds; Mattresses

*FILING BASIS SECTION 1(b)

ADDITIONAL STATEMENTS SECTION

*TRANSLATION 

(if applicable)

*TRANSLITERATION 

(if applicable)

*CLAIMED PRIOR REGISTRATION

(if applicable)

The applicant claims ownership of U.S.

Registration Number(s) 2803624, 2801405,

2803623, and others. 

*CONSENT (NAME/LIKENESS) 

(if applicable)

*CONCURRENT USE CLAIM 

(if applicable)

DISCLAIMER

No claim is made to the exclusive right to use

TECHNOLOGY apart from the mark as

shown.

ATTORNEY INFORMATION

NAME Barbara J. Grahn

ATTORNEY DOCKET NUMBER 8929-2233

FIRM NAME Oppenheimer Wolff & Donnelly, LLP

STREET 45 S 7th St, Suite 3300

CITY Minneapolis

STATE Minnesota

COUNTRY United States

ZIP/POSTAL CODE 55402

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PHONE 612-607-7325

FAX 612-607-7100

EMAIL ADDRESS bgrahn@oppenheimer.com

AUTHORIZED TO COMMUNICATE VIA EMAIL Yes

OTHER APPOINTED ATTORNEY

Erika Koster, Elizabeth Brenckman, Barbara

Wrigley, Ed Laine, Aaron Scott, Sam

Hellfeld, Andrew Hansen

CORRESPONDENCE INFORMATION

*NAME Barbara J. Grahn

FIRM NAME Oppenheimer Wolff & Donnelly, LLP

*STREET 45 S 7th St, Suite 3300

*CITY Minneapolis

*STATE 

(Required for U.S. applicants) Minnesota

*COUNTRY United States

*ZIP/POSTAL CODE 55402

PHONE 612-607-7325

FAX 612-607-7100

*EMAIL ADDRESS bgrahn@oppenheimer.com

*AUTHORIZED TO COMMUNICATE VIA

EMAIL Yes

FEE INFORMATION

NUMBER OF CLASSES 1

FEE PER CLASS 275

*TOTAL FEE PAID 275

SIGNATURE INFORMATION

* SIGNATURE /heather m. Somers/

* SIGNATORY'S NAME Heather M. Somers, Esq.

* SIGNATORY'S POSITION Vice President and Associate General

Counsel

* DATE SIGNED 07/05/2011

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PTO Form 1478 (Rev 9/2006)

OMB No. 0651-0009 (Exp 12/31/2011)

Trademark/Service Mark Application, Principal Register

TEAS Plus Application

Serial Number: 85363543

Filing Date: 07/05/2011

To the Commissioner for Trademarks:

MARK: DUALAIR TECHNOLOGY INSIDE (stylized and/or with design, see mark)

The literal element of the mark consists of DUALAIR TECHNOLOGY INSIDE.

The applicant is not claiming color as a feature of the mark. The mark consists of the word "DUALAIR"

above the words "TECHNOLOGY INSIDE" to the right of a circle containing two arrows.

The applicant, Select Comfort Corporation, a corporation of Minnesota, having an address of

 9800 59th Avenue N

 Plymouth, Minnesota 55442

 United States

requests registration of the trademark/service mark identified above in the United States Patent and

Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051

et seq.), as amended, for the following:

For specific filing basis information for each item, you must view the display within the Input Table.

 International Class 020: Beds; Mattresses

Intent to Use: The applicant has a bona fide intention to use or use through the applicant's related company

or licensee the mark in commerce on or in connection with the identified goods and/or services. (15

U.S.C. Section 1051(b)).

No claim is made to the exclusive right to use TECHNOLOGY apart from the mark as shown.

The applicant claims ownership of U.S. Registration Number(s) 2803624, 2801405, 2803623, and others.

The applicant's current Attorney Information:

Barbara J. Grahn and Erika Koster, Elizabeth Brenckman, Barbara Wrigley, Ed Laine, Aaron Scott, Sam

Hellfeld, Andrew Hansen of Oppenheimer Wolff & Donnelly, LLP

 45 S 7th St, Suite 3300

 Minneapolis, Minnesota 55402

 United States

The attorney docket/reference number is 8929-2233.

The docket/reference number is 8929-2233.

The applicant's current Correspondence Information:

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 Barbara J. Grahn

 Oppenheimer Wolff & Donnelly, LLP

 45 S 7th St, Suite 3300

 Minneapolis, Minnesota 55402

 612-607-7325(phone)

 612-607-7100(fax)

 bgrahn@oppenheimer.com (authorized)

A fee payment in the amount of $275 has been submitted with the application, representing payment for 1

class(es).

Declaration

The undersigned, being hereby warned that willful false statements and the like so made are punishable by

fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements, and

the like, may jeopardize the validity of the application or any resulting registration, declares that he/she is

properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to

be the owner of the trademark/service mark sought to be registered, or, if the application is being filed

under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce;

to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right

to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to

be likely, when used on or in connection with the goods/services of such other person, to cause confusion,

or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and

that all statements made on information and belief are believed to be true.

Signature: /heather m. Somers/ Date Signed: 07/05/2011

Signatory's Name: Heather M. Somers, Esq.

Signatory's Position: Vice President and Associate General Counsel

RAM Sale Number: 6058

RAM Accounting Date: 07/06/2011

Serial Number: 85363543

Internet Transmission Date: Tue Jul 05 18:47:26 EDT 2011

TEAS Stamp: USPTO/FTK-74.203.157.35-2011070518472605

8321-85363543-480d55d8237677f3c8c849cd64

92d9d9dbc-DA-6058-20110701133559959809

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