1

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WALRUS BRANDS, L.L.C.,

 

 Plaintiff,

v.

PEACHES UNIFORMS, INC.,

 Defendant.

JURY TRIAL DEMANDED

Civil Action No. ______________

 

COMPLAINT

Plaintiff, WALRUS BRANDS, L.L.C. (“Plaintiff” or “Walrus”), sues Defendant, 

PEACHES UNIFORMS, INC. (“Defendant” or “Peaches”) and alleges:

NATURE OF THE ACTION

1. This is a classic case of willful “knockoff” trade dress and trademark infringement 

based on Defendant’s wholesale copying of Plaintiff’s trade dress. This Complaint alleges that 

Defendant slavishly copied Plaintiff’s scrubs and thereby infringed Plaintiff’s rights in and to its 

highly distinctive trade dress, in violation of Section 43(a)(1)(A) of the Lanham Act’s 

prohibition against falsely designating the origin of Defendant’s infringing scrubs.

PARTIES

2. Plaintiff, WALRUS BRANDS, L.L.C., is a limited liability company organized 

and existing under the laws of the State of Delaware, and has its principal place of business 

located at 212 West Superior Street, Unit 503, Chicago, Illinois 60654.

3. Defendant, PEACHES UNIFORMS, INC., is a corporation organized and 

existing under the laws of the State of Texas, and has its principal place of business located at 

201 Regal Row, Dallas, Texas 75247.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 1 of 17 PageID #:1
2

JURISDICTION AND VENUE

4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 

§ 1331 (federal question); 28 U.S.C. § 1338 (patents, copyrights, trademarks and unfair 

competition); and 28 U.S.C. § 1332(a) because the parties are diverse and the amount in 

controversy exceeds $75,000. 

5. This Court has personal jurisdiction over Defendant because Defendant 

committed the tortious conduct alleged in this Complaint in this State; indeed, Defendant has 

sold a substantial amount of infringing goods in this State, and because Defendant has engaged 

in substantial and not isolated business activity in this State.

6. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because a substantial 

part of the events or omissions giving rise to the claims occurred in this District, and Defendant

is subject to the Court’s personal jurisdiction with respect to this action. 

GENERAL ALLEGATIONS

A. Walrus and its Trade Dress

7. Through this complaint, Walrus alleges that the protectable trade dress associated 

with its Styles 5300, 5400 and 5500 have been infringed by Peaches through its sale of knockoff 

scrubs, Styles 8403 and 8705, bearing trade dress that is likely to cause confusion with Walrus’s 

trade dress.

8. Walrus is an established, widely recognized and popular manufacturer, wholesale 

seller and designer of medical apparel, particularly scrubs. 

9. Walrus designs all of the scrubs it sells, as well as the trade dress associated with 

such scrubs.

10. Walrus has been marketing and selling scrubs bearing a unique trade dress, as 

further described herein (the “Trade Dress”).

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 2 of 17 PageID #:2
3

11. Walrus had made extensive and continuous use of the Trade Dress throughout the 

United States prior to the time Defendant commenced selling knockoff, infringing scrubs bearing 

Walrus’s distinctive Trade Dress.

12. By virtue of extensive investment, advertising and promotion, Walrus’s Trade 

Dress has become widely known and immediately recognizable to consumers throughout the 

United States and abroad. Specifically, Walrus has invested nearly $1,000,000 on advertising

and promotion of its goods. 

13. Walrus advertises its Trade Dress through a wide range of media, including, but 

not limited to, in magazines and on billboards, radio, and at trade shows.

14. Through its extensive media coverage and advertising, the Trade Dress has 

become trend-setting, well known, highly popular, and used by consumers and retailers to 

identify the scrubs as emanating from a single source of high quality apparel.

15. The Trade Dress has acquired a secondary meaning in the minds of consumers as 

an identifier for specific scrubs that emanate from a specific source or origin. 

16. Over the past decade, Walrus has earned over 10 million dollars in revenue from 

its sales of scrubs. 

B. The Elements of the Trade Dress

17. Walrus’s scrub top bearing Style 5400, as depicted below, contains distinctive 

trade dress comprised of:

Style 5400

 A short-sleeve, buttonless, pullover style scrub sold under the 

mark Classic Scrub Top.

 Angled right and left hand pockets placed on bottom front of 

garment

 Silver tab placed on top center of right sleeve.

 A chest Velcro pocket with badge holder and stylized logo.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 3 of 17 PageID #:3
4

 A v-neck with a contrasting back neck line and overlap on left 

hand side.

 Extra pockets placed inside garment.

 White sticker containing stylized logo and the words “YO! 

POCKETS INSIDE” placed on left lower front advertising 

extra pockets placed inside garment.

 Contrasting aesthetic and distinctive color stitching placed on 

underarm of sleeves, left and right sides of chest and front 

pockets, pen holder in chest pocket, and tops of side slits on 

bottom of garment.

 Contrasting aesthetic and distinctive border at back of neck 

containing stylized logo.

 MED FLEX brand stretch fabric.

18. Walrus scrub pant bearing Styles 5300 and 5500, as depicted below, are well 

known garments featuring a distinctive trade dress comprised of:

Style 5300

 Flat front, straight leg, drawstring top pants.

 Contrasting stylized logo placed on top of one of the pant legs.

 Contrasting aesthetic and distinctive color drawstrings.

 Inside back elastic pager clip.

 Contrasting color logo placed on the inside top center of pants.

 Contrasting color logo placed near top of back pocket.

 MED FLEX brand stretch fabric.

Style 5500

 Flat front, boot cut, drawstring top pants.

 Contrasting aesthetic and distinctive color drawstrings 

containing embossed, stylized logo repeated along length of 

drawstring.

 Contrasting stylized logo placed on top front of left leg.

 Inside of boot cut lined in aesthetic and distinctive contrasting 

color.

 Outside of boot cut lined in aesthetic and distinctive color 

stitching.

 MED FLEX brand stretch fabric.

C. Peaches

19. Peaches manufacturers, distributes, sells and/or offers to sell uniforms and scrubs, 

including the infringing scrubs described below. 

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 4 of 17 PageID #:4
5

D. The Copying

20. Seeking to capitalize on the success of Walrus’s scrubs, Defendant intentionally, 

with reckless disregard, or negligently copied Walrus’s Trade Dress in order to produce virtually 

identical knockoff copies of Walrus’s scrubs (the “Infringing Products”).

21. Defendant’s Infringing Products were intentionally, with reckless disregard, or 

negligently designed to imitate, copy and counterfeit Walrus’s scrubs and Trade Dress.

22. As depicted below, Defendant has copied virtually every element of Walrus’s

Trade Dress. 

A. Peaches scrub top bearing Style 8403 infringes Walrus’s scrub top bearing 

Style 5400:

Walrus’s Style 5400 Scrub Top Peaches’ Style 8403 Infringing Scrub Top

A short-sleeve, buttonless, pullover style

scrub sold under the mark “Classic Scrub 

Top.”

Angled right and left hand pockets placed on 

bottom front of garment.

A short-sleeve, buttonless, pullover style scrub 

sold under the mark “Classic Scrub Top.”

Angled right and left hand pockets placed on 

bottom front of garment.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 5 of 17 PageID #:5
6

Silver tab placed on top center of right sleeve. Silver tab placed on top center of right sleeve.

A chest Velcro pocket with badge holder and 

stylized logo.

A chest Velcro pocket with badge holder and 

stylized logo.

A v-neck with a contrasting back neck line and 

overlap on left hand side.

A v-neck with a contrasting back neck line and 

overlap on left hand side.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 6 of 17 PageID #:6
7

Extra pockets placed inside garment.

White sticker containing stylized logo and the 

words “YO! POCKETS INSIDE” placed on 

left lower front advertising extra pockets 

placed inside garment.

Extra pockets placed inside garment.

White sticker containing stylized logo and the 

words “LOOK! Extra pockets inside” placed on 

left lower front advertising extra pockets placed 

inside garment.

Contrasting aesthetic and distinctive color 

stitching placed on underarm of sleeves, left and 

right sides of chest and front pockets, pen holder 

in chest pocket, and tops of side slits on bottom of 

garment.

Contrasting aesthetic and distinctive color stitching 

placed on underarm of sleeves, left and right sides 

of chest and front pockets, pen holder in chest 

pocket, and tops of side slits on bottom of garment.

Contrasting aesthetic and distinctive border at Contrasting aesthetic and distinctive border at back 

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 7 of 17 PageID #:7
8

back of neck containing stylized logo. of neck containing stylized logo.

MED FLEX brand stretch fabric. EZ-FLEX brand stretch fabric.

 

B. Peaches’ scrub pant bearing Style 8705 infringes Walrus’s scrub pant 

bearing Styles 5300 and 5500:

Walrus’s Scrub Pants Style 5300 Peaches’ Infringing Scrub Pants Style 8705

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 8 of 17 PageID #:8
9

Flat front, straight leg, drawstring top pants.

Contrasting stylized logo placed on top front of 

one of the pant legs.

Flat front, straight leg, drawstring top pants.

Contrasting stylized logo placed on top of one of the 

pant legs.

Contrasting aesthetic and distinctive color 

drawstrings. 

Contrasting aesthetic and distinctive color 

drawstrings.

Inside back elastic pager clip. Inside back elastic pager clip.

Contrasting color logo placed on the inside top 

center of pants. 

Contrasting color logo placed on the inside top 

center of pants.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 9 of 17 PageID #:9
10

Contrasting color logo placed near top of back 

pocket.

Contrasting color logo placed near top of back 

pocket.

MED FLEX brand stretch fabric. EZ-FLEX brand stretch fabric.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 10 of 17 PageID #:10
11

C. Peaches’ scrub pant bearing Style 8705 infringes Walrus’s scrub pant bearing 

Styles 5300 and 5500:

IguanaMed Classic Scrub Pant Style 5500 Peaches’ Classic Scrub Pant Style 8705

Flat front, boot cut, drawstring top pants.

Contrasting aesthetic and distinctive color

drawstrings containing embossed, stylized 

logo repeated along length of drawstring.

Contrasting stylized logo placed on top of one 

of the pant legs.

Flat front, boot cut, drawstring top pants.

Contrasting aesthetic and distinctive color

drawstrings containing embossed, stylized logo 

repeated along length of drawstring.

Contrasting stylized logo placed on top of one 

of the pant legs.

Inside of boot cut lined in aesthetic and 

distinctive contrasting color.

Inside of boot cut lined in aesthetic and 

distinctive contrasting color.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 11 of 17 PageID #:11
12

Outside of boot cut lined in aesthetic and 

distinctive contrasting color stitching. 

Outside of boot cut lined in aesthetic and 

distinctive contrasting color stitching.

MED FLEX brand stretch fabric. EZ-FLEX brand stretch fabric.

23. The striking similarities between the parties’ trade dress, including its most salient

aesthetic and distinctive elements, makes clear that Defendant intentionally, with reckless 

disregard or negligently copied Walrus’s Trade Dress in a conscious and deliberate attempt to 

trade off the good will associated with Walrus’s distinctive Trade Dress.

24. Consumers of the parties scrubs are likely to become confused within the meaning 

of Section 43(a) of the Lanham Act because:

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 12 of 17 PageID #:12
13

(a) Consumers are likely to erroneously assume that the parties are connected or 

affiliated with each other or to erroneously assume that one party sponsors or endorses the other 

party’s sale of scrubs bearing the Trade Dress;

(b) Consumers are likely to erroneously assume that the parties’ scrubs come from 

the same source or origin when in fact the parties’ scrubs come from two different sources and 

origins;

(c) Consumers are likely to assume Walrus’s scrub originates from Peaches, or vice 

versa. 

25. The parties have the same customers and customers with similar attributes. 

Indeed, many of the parties’ customers purchase scrubs from the exact same brick and mortar 

retailers and/or from the exact same internet sites.

26. Medical professionals comprise the bulk of the parties’ customers, and as a

community of people are likely to interact and see each other. 

27. The cost of the scrubs is not so high that it warrants a studied purchase by medical 

professionals. Consequently, medical professionals are not very likely to seek out and notice 

minor differences between parties’ scrubs.

28. Confusion is likely to occur both at the point of sale when a medical professional 

purchases the parties’ products, and when a medical professional is seen or sees other medical 

professionals wearing the parties’ products.

29. Both parties sell their scrubs through the same channels of distribution.

30. Both parties market their scrubs through the same channels, e.g., at medical 

apparel conventions, using print and internet advertisements, and directly to brick and mortar 

stores.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 13 of 17 PageID #:13
14

31. Peaches markets and sells its infringing scrubs in the exact same geographic 

territory as does Walrus. 

32. Consumers and retailers have already become confused as to the source or origin 

of the parties’ products. 

33. As a result of the confusion, Walrus has suffered damage to its reputation, its 

sales have eroded, it has had to incur additional expenditures to promote its scrubs, and its prices 

have eroded.

E. Miscellaneous, Conditions Precedent and Attorney’s Fees

34. All conditions precedent to the institution, maintenance and prosecution of this 

action have occurred, have been performed or have otherwise been waived.

35. Walrus has retained undersigned counsel to represent it in this matter, and is

obligated to pay its counsel a reasonable fee for its services. Walrus is entitled to recover the 

attorneys’ fees and costs it incurs in this matter pursuant to 15 U.S.C. § 1117.

COUNT I

False Designation of Origin

Violation of 15 U.S.C. § 1125

36. The allegations contained in paragraphs 1 through 35 are hereby re-alleged as if 

fully set forth herein.

37. Walrus’s Trade Dress is distinctive or has acquired secondary meaning.

38. Walrus’s Trade Dress is comprised of a combination of elements and it is not 

functional.

39. Defendant’s scrubs copy and imitate every element of Walrus’s Trade Dress.

40. Defendant’s unauthorized sales of infringing scrubs and its commercial 

advertising and promotion of them was done “in commerce” within the meaning of the Lanham 

Act.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 14 of 17 PageID #:14
15

41. Defendant’s sales and offers to sell infringing scrubs constitutes a false 

designation of origin, or a false or misleading description or representation of fact, which is 

likely to cause confusion, mistake or deceive consumers, all as more specifically set forth in the 

factual background section.

42. Walrus cannot control the nature and quality of the goods offered by Defendant or 

Defendant’s commercial activities, and any failure, neglect or default by Defendant when selling 

or promoting the infringing scrubs will and does reflect adversely on Walrus. Consequently, 

efforts by Walrus to protect its reputation are being hampered. And, Walrus is losing sales, its 

prices are being eroded, its reputation is being diminished. In response, Walrus has found it 

necessary to make considerable additional expenditures to promote its goods and dispel 

confusion. Based upon the foregoing, Walrus is suffering irreparable harm as a result of the 

infringement. 

43. Walrus’s damages are continuing, and additional injury and damage to Walrus

will continue to occur so long as the above-alleged unauthorized and infringing use by Defendant 

persists.

44. The infringement by Defendant is willful and deliberate, has resulted in gains, 

profits and advantages to Defendant, and is designed specifically to trade upon the enormous 

goodwill associated with Walrus’s Trade Dress. 

45. Walrus does not have an adequate remedy at law.

WHEREFORE, Plaintiff, Walrus, respectfully requests that this Court enter judgment in 

its favor and against Defendant:

A. Permanently enjoining Defendant, and its successors, assigns, officers, 

agents, servants, employees, attorneys or representatives, and any parties in active concert or 

participation with Defendant, from, directly or indirectly, importing, exporting, distributing, 

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 15 of 17 PageID #:15
16

manufacturing, promoting, advertising, selling or offering for sale, any product or service using a 

trade dress that is confusingly similar to Walrus’s Trade Dress;

B. Ordering Defendant to turn over to Walrus all goods, labels, signs, prints, 

packages, wrappers, receptacles, documents, advertisements, letterhead, business cards or other 

promotional materials in its possession or under its control bearing a trade dress that is 

confusingly similar to Walrus’s Trade Dress;

C. Ordering that an accounting be made of the profits that Defendant has

wrongfully obtained from its use and sales of the infringing scrubs;

D. Awarding Walrus Defendant’s profits under 15 U.S.C. § 1117(a)(1); 

E. Awarding Walrus its sustained damages under 15 U.S.C. § 1117(a)(2);

F. Awarding Walrus three times its actual damages and Defendant’s profits, 

enhanced as the Court deems just, under 15 U.S.C. § 1117(a)(3). 

G. Awarding Walrus its attorneys’ fees and costs incurred in this action as an 

exceptional case under 15 U.S.C. § 1117(a)(3);

H. Granting Walrus such other and further relief as the Court deems just and 

proper.

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 16 of 17 PageID #:16
17

DEMAND FOR A JURY TRIAL

Walrus hereby demands a trial by jury on all issues so triable.

Dated: June 19, 2012 Respectfully submitted,

NICOLETTI & ASSOCIATES, PLLC

By: /s/ Paul J. Nicoletti

Paul J. Nicoletti, Esq. (P44419)

36880 Woodward Ave, Suite 100

Bloomfield Hills, MI 48304

Tel: (248) 203-7800

Fax: (248) 203-7801

E-Fax: (248) 928-7051

Email: paul@nicoletti-associates.com

Attorneys for Plaintiff

Case: 1:12-cv-04892 Document #: 1 Filed: 06/20/12 Page 17 of 17 PageID #:17