IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

THERABODY, INC., 

 

Plaintiff, 

v. 

RACHEL WADDELL, 

 Defendant. 

)

)

)

)

)

)

)

)

) 

) 

) 

CASE NO: 3:22-cv-555 

 

COMPLAINT 

(JURY DEMAND ENDORSED HEREIN) 

Plaintiff Therabody, Inc. (“Plaintiff”), by and through counsel, for its Complaint against 

Defendant Rachel Waddell (“Defendant”) states as follows: 

INTRODUCTION 

1. Defendant is engaged in the unauthorized sale of materially different products 

under Plaintiff’s brand name and using Plaintiff’s trademarks. 

2. As a result of Defendant’s unauthorized sales, Defendant is harming consumers 

and Plaintiff’s business relationships, deceiving and misleading the consuming public, and 

violating Plaintiff’s rights in its proprietary intellectual property. 

3. These unauthorized sales and infringing activities are illegal and have harmed, 

and will continue to harm, Plaintiff. 

PARTIES 

4. Plaintiff is a corporation organized under the laws of the State of Delaware with 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 1 of 20 PageID 1
2 

4882-7924-1491, v. 1

its principal place of business in California. 

5. Plaintiff designs, manufactures, and sells high-end percussive massage devices, 

wellness products, and accessories (collectively, the “Products”).

6. Defendant is an individual residing in Amarillo, Texas. 

7. Defendant sells the Products, without Plaintiff’s authorization or consent, as a 

third-party seller on Amazon.com, Inc.’s (“Amazon”) United States e-commerce platform (the 

“Amazon Marketplace”) at the unique Amazon Marketplace storefront “Rachel Waddell” found 

here: https://www.amazon.com/sp?ie=UTF8&seller=A22Z2FSFRBNOCP (the “Storefront”). 

8. Defendant is selling the Products and using Plaintiff’s proprietary intellectual 

property in connection with such sales without Plaintiff’s authorization or consent. 

JURISDICTION AND VENUE 

9. This Court has original subject matter jurisdiction over Plaintiff’s trademark 

claims pursuant to 28 U.S.C. § 1338(a). 

10. This Court also has original subject matter jurisdiction over Plaintiff’s unfair 

competition claims, pursuant to 28 U.S.C. § 1338(b) because they are joined with Plaintiff’s 

substantial and related trademark claims. 

11. Pursuant to 28 U.S.C. § 1367, the Court has supplemental subject matter 

jurisdiction over Plaintiff’s remaining claims because they form part of the same case or 

controversy as Plaintiff’s trademark and unfair competition claims. 

12. This Court has general personal jurisdiction over Defendant because Defendant is 

physically located, maintains offices, and conducts business within the State of Texas. 

13. Defendant is subject to the Court’s jurisdiction pursuant to the Texas Civil 

Practice and Remedies Code § 17.042 because, inter alia, Defendant contracts with consumers to 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 2 of 20 PageID 2
3 

4882-7924-1491, v. 1

conduct business within the State of Texas. 

14. Defendant is subject to the specific personal jurisdiction of this Court because 

Defendant has sufficient minimal contacts with the State of Texas with respect to the subject 

matter of this action to satisfy Constitutional due process. As a result of Defendant’s business 

activities directed to the State of Texas, Defendant could reasonably anticipate being brought 

into court in this forum. 

15. Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) because Defendant resides 

within this District and because a substantial part of the events giving rise to Plaintiff’s claims 

occurred in this District. 

BACKGROUND 

Plaintiff’s Business 

16. Plaintiff sells the Products bearing various trademarks validly registered with the 

United States Patent and Trademark Office, including Registration Numbers 52133141, 

6206626, 6218258, 6126363, 6060204, 6126362, 6126360, 6030995, 6043917, 6081408, 

6043891, 6120156, 6149774, 6120853 (collectively, the “Trademarks” and each, a 

“Trademark”), which are identified in the attached Exhibit A. 

17. Plaintiff sells the Products on the internet and through interstate commerce. 

18. Plaintiff has spent significant resources to develop, market, and protect the 

Trademarks. 

19. Plaintiff sells the Products on its United States website 

(https://www.therabody.com/us/en-us/home) (the “Website”), through select online retailers, on 

the Amazon Marketplace, and in traditional brick-and-mortar establishments. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 3 of 20 PageID 3
4 

4882-7924-1491, v. 1

20. Plaintiff also sells to and through certain wholesalers and authorized resellers 

(each, an “Authorized Reseller” and collectively, the “Authorized Resellers”). 

21. Plaintiff strives to ensure that consumers of its Products are receiving authentic 

Products from either Plaintiff itself or one of its reputable Authorized Resellers. 

22. As a result of these actions, Plaintiff has become an industry leader in the market, 

and the Products are synonymous with high-end, top-quality percussive massage devices. 

The Growth of E-Commerce

23. The explosion of e-commerce websites, particularly the Amazon Marketplace, has 

created problems and challenges for manufacturers, brands, and authorized resellers, including 

Plaintiff. 

24. Plaintiff and other businesses must ensure that products sold are genuine, defect 

free, and come with all warranties in order to maintain, and continue building, their valuable 

goodwill and reputation. 

25. In this e-commerce age, unauthorized resellers can obtain products from a variety 

of sources and then sell products anonymously online. 

26. Many times, the products sold by unauthorized resellers may be materially 

different than those sold by the brand or authorized resellers.

27. Specifically, unauthorized resellers may sell products without warranties, of an 

inferior quality, that are defective, and in violation of a business’s rights in its intellectual 

property. 

28. Indeed, on the Amazon Marketplace, all sales of a particular product are sold 

under a unique Amazon Standard Identification Number (“ASIN”) such that consumers do not 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 4 of 20 PageID 4
5 

4882-7924-1491, v. 1

know whether a product is sold by an unauthorized reseller or a legitimate reseller. 

29. Because the unauthorized resellers are able to sell without disclosing their 

identity, manufacturers and brands experience challenges in communicating with the 

unauthorized resellers to alert them of material differences. 

30. Ultimately, consumers are harmed as they unknowingly buy a materially different 

product compared to a legitimate product from the manufacturer. 

Plaintiff’s Warranty Policy

31. Plaintiff and its Authorized Resellers offer consumers an industry-leading 

warranty for the Products (the “Warranty”). 

32. The Warranty is attached as Exhibit B and can be found online. See THERABODY, 

Therabody Warranty https://www.therabody.com/us/en-us/warranty-support/. 

33. Defendant cannot offer its customers the Warranty. 

34. The Warranty makes clear that it is only given “to the individual purchaser of 

products from Therabody or its authorized retailers and distributors” (emphasis added). Id. 

35. To obtain the Warranty protection, consumers must provide, among other things, 

proof of purchase of the Product. Id.

36. Plaintiff has taken further steps to notify the consuming public that only Products 

sold by Plaintiff or its Authorized Resellers come with the Warranty. 

37. Indeed, the Website contains an entire page warning consumers of the potential 

pitfalls in purchasing from unauthorized resellers such as Defendant. See THERABODY, 

Unauthorized Retailers, https://www.therabody.com/us/en-us/therabody-unauthorized-retailers/ 

38. Plaintiff specifically states: 

The Therabody Limited Warranty is only honored for Therabody Products 

purchased directly from Therabody or one of its authorized retailers. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 5 of 20 PageID 5
6 

4882-7924-1491, v. 1

Sometimes Therabody Products are sold by unauthorized retailers. These 

goods are often not purchased from Therabody or from an authorized 

distributor. Instead they are acquired from a host of other sources without 

our authorization. Due to the nature of the goods sold by unauthorized 

dealers and their business practices, products sold by unauthorized dealers 

are not entitled to the benefits of the Therabody Limited Warranty. 

Therabody products sold by unauthorized dealers may be purchased on a 

secondary "gray" market and can be pirated goods not produced by 

Therabody, damaged, defective, refurbished, stolen and/or even counterfeit. 

Id. 

39. Plaintiff has gone to great lengths to inform consumers about the issues associated 

with buying Products from Unauthorized Resellers; however, the nature of the Amazon 

Marketplace (as described above) allows Defendant to sell the Products to unsuspecting 

consumers who believe they are receiving a genuine Product, when in fact it is materially 

different than Products sold by Plaintiff or its Authorized Resellers. 

40. Plaintiff implemented its Warranty to protect its brand, goodwill, and valuable 

intellectual property, to maintain the integrity of its Products, and ultimately to protect and for 

the benefit of consumers. 

41. However, Plaintiff simply cannot warrant Products of an unknown origin. 

42. Unauthorized resellers will sell used, damaged, returned, repackaged, resealed, 

counterfeit, or knock-off Products as new, and because these sales are all without Plaintiff’s 

knowledge or consent, Plaintiff has no way to verify the legitimacy of the Products. 

43. Similarly, Plaintiff cannot verify the source, authenticity, or legitimacy of 

Products sold by Defendant, and therefore Plaintiff cannot warrant such Products. 

44. As a result, all Products sold by Defendant are materially different than Products 

sold by Plaintiff as the Products sold by Defendant do not come with the Warranty. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 6 of 20 PageID 6
7 

4882-7924-1491, v. 1

45. Additionally, Amazon requires that any goods sold as “New” come with the 

“Original manufacturer’s warranty, if any.” See AMAZON, Marketplace Items Condition 

Guidelines, (https://www.amazon.com/gp/help/customer/display.html?nodeId=201889720). 

46. Defendant lists the Products for sale as “New,” under the Product’s unique ASIN, 

but without Plaintiff’s Warranty. 

47. Unwitting consumers are then deceived into purchasing products that are 

materially different than the Products. 

Authorized Reseller Contracts

48. When Plaintiff sells to Authorized Resellers, Plaintiff enters into contracts with 

the Authorized Reseller (“Reseller Agreements”). 

49. Authorized Resellers may only sell the Products pursuant to a Reseller 

Agreement. 

50. Each Authorized Reseller agrees to be bound by Plaintiff’s terms and conditions 

(the “Terms and Conditions”). 

51. Plaintiff uses Reseller Agreements and the Terms and Conditions in order to 

promote fair competition between Authorized Resellers and to protect its brand, its goodwill, and 

its valuable intellectual property, including its proprietary images, designs, and the Trademarks. 

52. The Terms and Conditions limit Authorized Resellers’ use of the Trademarks to 

avoid brand dilution, tarnishment, and confusion as to the origin of the Products. 

53. The Terms and Conditions also prohibit any Authorized Reseller from selling or 

otherwise distributing the Products to other resellers, such as Defendant. 

54. Upon information and belief, Defendant has purchased some of its inventory of 

Products from an Authorized Reseller. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 7 of 20 PageID 7
8 

4882-7924-1491, v. 1

55. Additionally, the Terms and Conditions establish a uniform pricing policy 

amongst Authorized Resellers, grant a limited license for use of Plaintiff’s proprietary 

intellectual property, including the Trademarks, and ensure that Authorized Resellers are not 

disparaging Plaintiff’s brand or using deceptive tactics in advertising the Products, among other 

things. 

56. The Terms and Conditions also specify that the Warranty associated with the 

Products are only valid through the Authorized Resellers and place certain restrictions upon 

issuing the Warranty. 

57. Further, in order to protect consumers, the Terms and Conditions require 

Authorized Resellers to “establish and implement an effective standard operating procedure for 

the urgent recall of the Products from the market, in accordance with applicable laws and 

guidelines.” 

Defendant Sells the Products on the Amazon Marketplace Without Authorization 

58. Since at least January 2022, Plaintiff has been aware of Defendant’s unauthorized 

sale of materially different Products, which infringe on Plaintiff’s Trademarks and tarnish its 

brand. 

59. The Products sold by Defendant are materially different to those sold by Plaintiff 

or Plaintiff’s Authorized Resellers because Products sold by Defendant come from an unknown 

origin and do not come with the Warranty. 

60. Plaintiff cannot honor warranty claims from Defendant’s customers related to the 

Products because of Defendant’s status as an unauthorized reseller. 

61. Further, Defendant is not obligated to abide by requirements set forth in the 

Terms and Conditions such as avoiding deceptive marketing practices and assisting with 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 8 of 20 PageID 8
9 

4882-7924-1491, v. 1

products recalls, which means Products sold by Defendant come with an inferior suite of services 

than Products sold by Plaintiff or its Authorized Resellers. 

62. Defendant is infringing on Plaintiff’s rights when it sells Products as genuine 

when, in fact, the Products sold are materially different. 

63. Proof of Defendant’s sale of the Products is attached as Exhibit C. 

64. Plaintiff sent multiple cease-and-desist letters to Defendant, notifying Defendant 

of its unauthorized sales and its violation of Plaintiff’s rights in the Trademarks, and demanding 

Defendant cease sales of the Products. 

65. Plaintiff sent the first cease-and-desist letter on January 28, 2022, and the second 

cease-and-desist letter on February 11, 2022. Both of these letters notified Defendant of 

Plaintiff’s rights in the Trademarks and requested that Defendant cease selling the Products 

without Plaintiff’s authorization or consent. 

66. The most recent cease-and-desist letter was sent on February 18, 2022, via email, 

first-class mail, and the Amazon Marketplace and is attached as Exhibit D (the “Letter”).

67. The Letter put Defendant on notice of Plaintiff’s claims and requested that 

Defendant cease such conduct immediately. 

68. In the Letter, Plaintiff requested that Defendant confirm in writing by February 

13, 2022, that it would cease selling the Products without authorization in violation of Plaintiff’s 

policies and rights in the Trademarks. 

69. Defendant failed to respond to the Letter whatsoever (or any previous letter sent 

to Defendant). 

70. As of the date of this filing, Defendant has not agreed to cease and desist from 

selling the Products and infringing upon Plaintiff’s rights in the Trademarks. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 9 of 20 PageID 9
10 

4882-7924-1491, v. 1

71. Evidence of Defendant’s continued sales are set forth on Exhibit E. 

72. Defendant’s unauthorized sales and violations of Plaintiff’s rights in the 

Trademarks harms Plaintiff and its Authorized Resellers and misleads consumers. 

73. Accordingly, Plaintiff initiated this action. 

Count One 

Declaratory Judgment/Injunctive Relief 

74. Plaintiff incorporates each and every preceding paragraph as if fully restated 

herein. 

75. An actual and justiciable controversy exists between Plaintiff and Defendant 

related to whether Defendant has the right to sell the Products without Plaintiff’s consent and in 

violation of Plaintiff’s rights in the Trademarks. 

76. The Court, pursuant to Texas Civil Practice and Remedies Code § 37.001 et seq., 

28 U.S.C. §2201 and Fed. R. Civ. P. 57, should declare that Defendant has no right or 

authorization to sell the Products, or use the Trademarks, as these actions have harmed and 

continue to harm Plaintiff in an amount to be determined at trial. 

77. The Court should further declare that the Letter gave Defendant actual notice that 

it was not authorized to use the Trademarks, and any continued use of the Trademarks or 

unauthorized sales of the Products constitutes willful violations of Plaintiff’s rights in the 

Trademarks. 

78. Such a declaration is proper, pursuant to Texas Civil Practice and Remedies Code 

§ 37.004 and 28 U.S.C. § 2201, because the declaration would terminate the actual and 

justiciable controversy between Plaintiff and Defendant and remove any uncertainty with respect 

to this issue. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 10 of 20 PageID 10
11 

4882-7924-1491, v. 1

79. Additionally, the Court should enjoin Defendant from any further sales of the 

Products and use of the Trademarks. 

Count Two 

Common Law Unfair Competition 

80. Plaintiff incorporates each and every preceding paragraph as if fully restated 

herein. 

81. Defendant’s actions, including, but not limited to, its unauthorized sale of the 

Products and its unauthorized use of the Trademarks, constitute unfair competition. 

82. Defendant’s actions have damaged Plaintiff in the form of, inter alia, lost sales, 

interference with current and prospective business relationships, trademark infringement, 

trademark dilution, and tarnishment of Plaintiff’s brand, goodwill, and reputation. 

83. As a direct and proximate cause of Defendant’s conduct, Plaintiff has suffered 

and will continue to suffer damages in an amount to be proven at trial. 

Count Three 

Tortious Interference with Business Relationships or Contract

84. Plaintiff incorporates each and every preceding paragraph as if fully restated 

herein. 

85. The Reseller Agreements are valid binding contracts between Plaintiff and each 

Authorized Reseller. 

86. The Terms and Conditions are valid binding contracts between Plaintiff and each 

Authorized Reseller. 

87. Plaintiff has legal rights under the Reseller Agreements and Terms and 

Conditions. 

88. Plaintiff has, in fact, entered into business relationships with its Authorized 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 11 of 20 PageID 11
12 

4882-7924-1491, v. 1

Resellers. 

89. The Terms and Conditions prohibit Authorized Resellers from selling to resellers 

such as Defendant. 

90. Upon information and belief, Defendant purchases some of its inventory of 

Products from Authorized Resellers in violation of the Terms and Conditions. 

91. Defendant did so with a conscious desire to interfere with Plaintiff’s relationships 

with its Authorized Resellers. 

92. At least since receiving the Letter, Defendant has been aware of these contracts 

and Defendant’s interference with Plaintiff’s Authorized Resellers and interference with the 

Terms and Conditions. 

93. Despite this knowledge, Defendant sold the Products on the Amazon 

Marketplace, which, inter alia, harmed Plaintiff’s relationships with its Authorized Resellers and 

future Authorized Resellers and violated Plaintiff’s rights in its Trademarks. 

94. Defendant improperly interfered with Plaintiff’s relationships with its Authorized 

Resellers. 

95. As a direct and proximate cause of Defendant’s interference, Plaintiff has suffered 

and will continue to suffer damages in an amount to be proven at trial. 

Count Four 

Trademark Infringement (15 U.S.C. § 1114) 

96. Plaintiff incorporates each and every preceding paragraph as if fully restated 

herein. 

97. Plaintiff is the owner of the Trademarks. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 12 of 20 PageID 12
13 

4882-7924-1491, v. 1

98. The Trademarks are valid and subsisting marks, in full force and effect, and 

registered with the United States Patent and Trademark Office. 

99. Defendant uses the Trademarks in connection with its sale of the Products without 

Plaintiff’s authorization or consent. 

100. The Products sold by Defendant bearing the Trademarks do not come with 

Plaintiff’s Warranty, and upon information and belief, Defendant do not abide by Plaintiff’s 

resale procedures outlined in the Terms and Conditions. 

101. Because the Products sold by Defendant do not have the Warranty and are not 

sold pursuant to the resale procedures outlined in the Terms and Conditions these Products are 

not genuine and are materially different from Products sold by Plaintiff or Authorized Resellers. 

102. Defendant’s unauthorized sale of the Products bearing the Trademarks has 

infringed on, and damages the value of, the Trademarks. 

103. Defendant’s use of the Trademarks is likely to cause confusion, cause mistake, or 

deceive customers because it suggests that the Products sold by Defendant come with the 

Warranty and the same suite of services as Products sold by Plaintiff or Authorized Resellers, 

when, in fact, they do not. 

104. Confusion is more likely given that Defendant lists the Products as “New” despite 

it being a violation of Amazon’s Marketplace Items Condition Guidelines to list an item as 

“New” when it does not come with the manufacturer’s warranty as is the case with Defendant’s 

sale of the Products. 

105. Defendant’s use of the Trademarks is likely to cause confusion, cause mistake, or 

deceive customers because it suggests that the Products are sponsored by or authorized for sale 

by Plaintiff, when, in fact, they are not. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 13 of 20 PageID 13
14 

4882-7924-1491, v. 1

106. Plaintiff informed Defendant that its sales of the Products infringed on Plaintiff’s 

rights in the Trademarks. 

107. As a direct and proximate result of Defendant’s continued sale of the Products 

bearing the Trademarks, Plaintiff has suffered and continues to suffer immediate and irreparable 

harm, including harm to the reputation and goodwill of its business and loss of profits in an 

amount to be proven at trial. 

108. Plaintiff is entitled to recover damages from Defendant’s infringement and 

disgorgement of any profits from Defendant’s infringing sales of the Products. 

109. Plaintiff is further entitled to injunctive relief pursuant to 15 U.S.C. §1116 and 

increased damages pursuant to 15 U.S.C § 1117(a) because Defendant’s infringement of the 

Trademarks is willful. 

Count Five 

Unfair Competition (15 U.S.C. § 1125(a)) 

110. Plaintiff incorporates each and every preceding paragraph as if fully restated 

herein. 

111. Plaintiff is the owner of the Trademarks. 

112. The Trademarks are valid and subsisting marks, in full force and effect, and 

registered with the United States Patent and Trademark Office. 

113. Defendant uses the Trademarks in connection with its sale of the Products without 

Plaintiff’s authorization or consent. 

114. The Products sold by Defendant bearing the Trademarks do not come with 

Plaintiff’s Warranty, and upon information and belief, Defendant do not abide by the resale 

requirements outlined in the Terms and Conditions. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 14 of 20 PageID 14
15 

4882-7924-1491, v. 1

115. Because the Products sold by Defendant do not have the Warranty and are not 

sold in accordance with the resale requirements outlined in the Terms and Conditions these 

Products are not genuine and are materially different from Products sold by Plaintiff or 

Authorized Resellers. 

116. Confusion is more likely given that Defendant lists the Products as “New” despite 

it being a violation of Amazon’s Marketplace Items Condition Guidelines to list an item as 

“New” when it does not come with the manufacturer’s warranty as is the case with Defendant’s 

sale of the Products. 

117. Defendant’s use of the Trademarks is likely to cause confusion, cause mistake, or 

deceive customers because it suggests that the Products are sponsored by or authorized for sale 

by Plaintiff, when, in fact, they are not. 

118. Defendant’s unauthorized sale of the Products bearing the Trademarks has 

infringed on and damages the value of the Trademarks. 

119. Plaintiff informed Defendant that its sales of the Products infringed on Plaintiff’s 

rights in the Trademarks. 

120. As a direct and proximate result of Defendant’s continued sale of the Products 

bearing the Trademarks, Plaintiff has suffered and continues to suffer immediate and irreparable 

harm, including harm to the reputation and goodwill of its business and loss of profits in an 

amount to be proven at trial. 

121. Plaintiff is entitled to recover damages from Defendant’s infringement of the 

Trademarks and disgorgement of any profits from Defendant’s infringing sales of the Products. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 15 of 20 PageID 15
16 

4882-7924-1491, v. 1

122. Plaintiff is further entitled to injunctive relief pursuant to 15 U.S.C. §1116 and 

increased damages pursuant to 15 U.S.C § 1117(a) because Defendant’s infringement of the 

Trademarks is willful. 

Count Six 

Trademark Dilution (15 U.S.C. § 1125(c)) 

123. Plaintiff incorporates each and every preceding paragraph as if fully restated 

herein. 

124. Plaintiff is the owner of the Trademarks. 

125. The Trademarks are valid and subsisting marks, in full force and effect, and 

registered with the United States Patent and Trademark Office. 

126. Plaintiff has continuously used the Trademarks in commerce and has spent 

considerable sums in time and money to promote and advertise its Products using the 

Trademarks. 

127. Plaintiff sells the Products bearing the Trademarks throughout the United States. 

128. Customers have come to associate the Trademarks with Plaintiff and the Products. 

129. Customers associate the Trademarks with high-end, top quality percussive 

massage devices. 

130. Defendant is using the Trademarks in connection with the sale of the Products. 

131. However, the Products sold by Defendant is materially different than genuine 

Products sold by Plaintiff because Defendant’s products do not come with the Warranty and 

upon information and belief, are not sold in accordance with the resale requirements set forth in 

the Terms and Conditions. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 16 of 20 PageID 16
17 

4882-7924-1491, v. 1

132. Because Defendant is selling an inferior product, Defendant’s use of the 

Trademarks is causing the dilution of the Trademarks by blurring and tarnishing the reputation 

and goodwill associated with the Trademarks in violation of 15 U.S.C. § 1125(c). 

133. As a direct and proximate result of Defendant’s continued sale of the Products 

bearing the Trademarks, Plaintiff has suffered and continues to suffer immediate and irreparable 

harm, including harm to the reputation and goodwill of its business and loss of profits in an 

amount to be proven at trial. 

134. Plaintiff is entitled to recover damages from Defendant’s infringement of the 

Trademarks and disgorgement of any profits from Defendant’s infringing sales of the Products. 

135. Plaintiff is further entitled to injunctive relief pursuant to 15 U.S.C. §1116 and 

increased damages pursuant to 15 U.S.C § 1117(a) because Defendant’s infringement of the 

Trademarks is willful. 

Count Seven 

Trademark Infringement (Texas Common Law) 

136. Plaintiff hereby incorporates each and every preceding paragraph as if fully 

restated herein. 

137. Plaintiff is the owner of the Trademarks. 

138. The Trademarks are valid and subsisting marks, in full force and effect, and 

registered with the United States Patent and Trademark Office. 

139. Plaintiff has continuously used the Trademarks in commerce and has spent 

considerable sums in time and money to promote and advertise its Products using the 

Trademarks. 

140. Plaintiff sells the Products bearing the Trademarks throughout the United States. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 17 of 20 PageID 17
18 

4882-7924-1491, v. 1

141. Defendant’s sales of the Products bearing the Trademarks are likely to cause 

confusion as to Plaintiff’s association or sponsorship with regard to Defendant. 

142. Defendant’s sales of the Products harm Plaintiff because, inter alia, Defendant 

sells materially different products than that of Plaintiff’s because the products sold by Defendant, 

inter alia, do not come with the Warranty. 

143. As a direct and proximate result of Defendant’s continued sale of the Products 

bearing the Trademarks, Plaintiff has suffered and continues to suffer immediate and irreparable 

harm, including harm to Plaintiff’s business reputation and goodwill. 

Count Eight

Trademark Dilution (Tex. Bus. & Com. Code § 16.103) 

144. Plaintiff incorporates each and every preceding paragraph as if fully rewritten 

herein. 

145. Plaintiff is the valid and registered owner of the Trademarks. 

146. Customers have come to associate the Trademarks with Plaintiff and the Products. 

147. Customers associate and widely recognize the Trademarks with high-end, top 

quality percussive massage devices. 

148. As a result, the Trademarks have become distinctive and famous.

149. Defendant is using the Trademarks in connection with the sale of the Products 

after the Trademarks became distinctive and famous. 

150. However, the Products sold by Defendant are materially different than genuine 

Products sold by Plaintiff because Defendant’s products do not come with the Warranty and 

upon information and belief, are not sold in accordance with the resale requirements set forth in 

the Terms and Conditions. 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 18 of 20 PageID 18
19 

4882-7924-1491, v. 1

151. Because Defendant is selling an inferior product, Defendant’s use of the 

Trademarks is causing the dilution of the Trademarks by blurring and tarnishing the reputation 

and goodwill associated with the Trademarks in violation of Tex. Bus. & Com. Code § 16.103. 

152. As a direct and proximate result of Defendant’s continued sale of the Products 

bearing the Trademarks, Plaintiff has suffered and continues to suffer immediate and irreparable 

harm, including harm to Plaintiff’s business reputation and goodwill. 

WHEREFORE, Plaintiff prays for judgment as follows: 

A. As to Count One, a declaratory judgment declaring that Defendant is not 

authorized to sell the Products and is willfully violating Plaintiff’s rights in the Trademarks, and 

permanently enjoin Defendant from any further sales of the Products; 

B. As to Count Two, award compensatory damages in an amount to be determined at 

trial, as well as attorney fees and costs, disgorge Defendant of its profits from all unauthorized 

sales of the Products, and permanently enjoin Defendant from using the Trademarks or selling or 

offering for sale the Products; 

C. As to Count Three, award compensatory damages in an amount to be determined 

at trial, as well as attorney fees and costs, disgorge Defendant of its profits from all unauthorized 

sales of the Products, permanently enjoin Defendant from using the Trademarks or selling or 

offering for sale the Products, and permanently enjoin Defendant from interfering with Plaintiff’s 

current and prospective relationships with its Authorized Resellers by further selling the 

Products; 

 

D. As to Count Four, award compensatory damages in an amount to be determined at 

trial, as well as attorney fees and costs, disgorge Defendant of its profits from all unauthorized 

sales of the Products, and permanently enjoin Defendant from using the Trademarks or selling or 

offering for sale the Products; 

E. As to Count Five, award compensatory damages in an amount to be determined at 

trial, as well as attorney fees and costs, disgorge Defendant of its profits from all unauthorized 

sales of the Products, and permanently enjoin Defendant from using the Trademarks or selling or 

offering for sale the Products; 

F. As to Count Six, award compensatory damages in an amount to be determined at 

trial, as well as attorney fees and costs, disgorge Defendant of its profits from all unauthorized 

sales of the Products, and permanently enjoin Defendant from using the Trademarks or selling or 

offering for sale the Products; 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 19 of 20 PageID 19
20 

4882-7924-1491, v. 1

G. As to Count Seven, award compensatory damages in an amount to be determined 

at trial, as well as attorney fees and costs, disgorge Defendant of its profits from all unauthorized 

sales of the Products, and permanently enjoin Defendant from using the Trademarks or selling or 

offering for sale the Products; 

H. As to Count Eight, award compensatory damages in an amount to be determined 

at trial, , as well as attorney fees and costs, disgorge Defendant of its profits, and permanently 

enjoin Defendant from engaging in further acts of deceptive business acts and practices; and 

I. All other relief that this Court may find just and proper. 

JURY DEMAND 

Plaintiff respectfully demands a trial by jury pursuant to Fed. R. Civ. P. 38. 

Respectfully submitted, 

KOHRMAN JACKSON & KRANTZ LLP 

/s/ Melissa R. Smith 

ALEX E. JONES (0095807) 

KYLE D. STROUP (0099118) 

1375 East Ninth Street, 29th Floor 

Cleveland, Ohio 44114 

Phone: 216-696-8700; Fax: 216-621-6536 

Email: aej@kjk.com; kds@kjk.com

Melissa R. Smith 

Texas State Bar No. 24001351 

Email: melissa@gillamsmithlaw.com 

GILLAM & SMITH, L.L.P. 

102 N. College, Suite 800 

Tyler, Texas 75702 

Telephone: (903) 934-8450 

Facsimile: (903) 934-9257 

Counsel for Plaintiff 

Case 3:22-cv-00555-M Document 1 Filed 03/08/22 Page 20 of 20 PageID 20