1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 1 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

JEFFREY C. HALLAM (State Bar No. 161259)

E-Mail: jhallam@sideman.com

ZACHARY J. ALINDER (State Bar No. 209009)

E-Mail: zalinder@sideman.com

PETER M. COLOSI (State Bar No. 252951)

E-Mail: pcolosi@sideman.com

REBECCA K. FELSENTHAL (State Bar No. 303476)

E-Mail: rfelsenthal@sideman.com

SIDEMAN & BANCROFT LLP

One Embarcadero Center, Twenty-Second Floor

San Francisco, California 94111-3711

Telephone: (415) 392-1960

Facsimile: (415) 392-0827

Attorneys for Plaintiff 

FITBIT, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

FITBIT, INC., a Delaware Corporation,

Plaintiff,

v.

LAGUNA 2, LLC, A New Jersey Limited 

Liability Company, JOEL BLANK, an 

individual; and DOES 1-30, inclusive,

Defendants.

Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND 

INJUNCTIVE RELIEF FOR:

1. FEDERAL TRADEMARK 

INFRINGEMENT AND 

COUNTERFEITING;

2. FEDERAL TRADEMARK DILUTION;

3. FEDERAL UNFAIR COMPETITION; 

AND,

4. CALIFORNIA UNFAIR 

COMPETITION.

DEMAND FOR JURY TRIAL

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 1 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 2 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

Plaintiff Fitbit, Inc. (“Fitbit”), by and through its undersigned counsel, for its Complaint 

against Defendants Laguna 2, LLC (“L2”) and Joel Blank (“Blank”), and Does 1 through 30, 

inclusive (collectively, “Defendants”), complains and alleges as follows:

INTRODUCTION

1. Fitbit recently caught Defendants selling non-genuine “Fitbit” branded products 

that were never supposed to be resold to consumers at all. These products were originally 

manufactured by Fitbit, but because they did not meet Fitbit’s high quality standards, they were

designated to be scrapped and/or recycled. Rather than being destroyed as part of Fitbit’s standard 

quality control processes, these scrap products instead were diverted from Fitbit’s supply chain, 

placed into counterfeit packaging, and then resold by Defendants through numerous nonauthorized online retailers, under the guise that they were “refurbished” genuine Fitbit products. 

2. Just before the holidays, Groupon, one of those online retailers, returned thousands 

of these “Fitbit” branded products to Defendants, after consumers purchased them from Groupon, 

and quickly returned them. Defendants nevertheless have refused to allow Fitbit to inspect any of 

their “Fitbit” branded inventory, including these Groupon returns, which would be necessary to 

ensure that Defendants do not sell any further scrap products. Indeed, Defendants have continued

to threaten to resell these products with no regard for the harm to Fitbit, its brand, and the 

consuming public.

3. Fitbit is a San Francisco-based corporation that specializes in the design, 

production, and sale of connected health and fitness wearable products and various associated 

mobile applications and online resources. Fitbit is a leader in the sale of connected health and 

fitness wearable products with current sales exceeding $2 billion annually.

4. Fitbit sells the majority of its products and services directly to consumers. Fitbit 

products and services have a reputation with these consumers for being high quality, innovative, 

and reliable. To maintain this strong reputation with the consuming public, among other things, 

Fitbit expends substantial resources on quality control in its supply chain. These supply chain 

processes, detailed further below, ensure that Fitbit’s quality control is of the highest level, further 

increasing Fitbit’s established reputation for high quality and reliable products and services. 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 2 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 3 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

5. Defendants’ unlawful conduct, as alleged in more detail below, has not only caused 

Fitbit significant monetary damages, but it also seeks to seriously undermine the established 

reputation for quality and reliable products and services that Fitbit has worked so hard to achieve. 

Indeed, numerous end customers who have purchased “Fitbit” branded products from Defendants, 

believing they would receive an authorized Fitbit product that meets Fitbit’s high quality 

standards, have been sorely disappointed and confused, leaving scathing reviews and returning

thousands of these products. As such, Fitbit not only lost the opportunity to sell an authorized, 

high quality product to hundreds of thousands of consumers, but also has taken a significant and 

ongoing hit to its reputation, brand, and goodwill with members of the consuming public. 

6. Despite being given notice and an opportunity to change their ways, Defendants 

have refused to curtail, and indeed, have expanded their unlawful business practices. Defendants 

have even brazenly requested that Fitbit approve their further resale of the “Fitbit” products 

currently in their inventory, including the customer-returned products from Groupon, without 

allowing Fitbit the chance to inspect them to determine whether they also were unlawfully 

diverted from Fitbit’s quality control and supply chain. Fitbit brings this Action to put a stop to 

Defendants’ unlawful and infringing conduct, to enjoin further unlawful and infringing conduct, 

and to recover full damages for the harm they have caused.

THE PARTIES

7. Fitbit is, and was at all relevant times, a Delaware corporation with its principal 

place of business at 405 Howard Street, Suite 550, San Francisco, California 94105.

8. Fitbit is informed and believes, and thereon alleges, that Defendant L2 is a New 

Jersey limited liability company with its principal place of business at 12 Sullivan Street, 

Westwood, New Jersey 07675. Fitbit is informed and believes, and thereon alleges, that L2 does 

business through a variety of online distributors, including but not limited to eBay.com, 

Groupon.com, Woot.com, and Overstock.com.

9. Fitbit is informed and believes, and thereon alleges, that Defendant Blank is also a 

New Jersey resident. Fitbit is informed and believes, and thereon alleges, that Defendant Blank 

acts as Managing Partner of Defendant L2, and therefore, that Defendant Blank participated in, 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 3 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 4 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

authorized, and directed the activities of Defendant L2, as set forth in detail in this Complaint.

10. The true names and capacities, whether individual, corporate, associate, or 

otherwise, of the Defendants named herein as Does 1 through 30, inclusive, are unknown to Fitbit

who, therefore, sues said Defendants by such fictitious names. Fitbit is informed and believes, and 

thereon alleges, that each of the Defendants designated herein as a Doe directed, conducted, 

participated in, ratified, endorsed or was otherwise involved in, is legally responsible for, and has 

liability, in some manner, for the events and acts alleged in this Complaint. Fitbit will amend this 

Complaint to reflect the true names and capacities of these Doe Defendants when the same shall 

have been fully and finally ascertained.

11. Fitbit is informed and believes, and thereon alleges, that at all times relevant to this 

action, each Defendant, including those fictitiously named Doe Defendants 1 through 30, 

inclusive, was the agent, servant, employee, partner, joint venturer, accomplice, conspirator, alter 

ego or surety of the other Defendants and was acting within the scope of that agency, employment, 

partnership, venture, or suretyship with the knowledge and consent or ratification of each of the 

other Defendants in doing the things alleged in this Complaint.

JURISDICTION AND VENUE

12. This Court has personal jurisdiction over Defendants because the acts complained 

of arise out of and relate to Defendants’ resale of scrap non-genuine Fitbit products in counterfeit 

packaging into the Northern District of California. Further, Fitbit is informed and believes, and 

thereon alleges, that the acts complained of arise out of and relate to Defendants’ purchase of these

scrap, non-genuine Fitbit products from a company located in California. Further, Defendants sell 

their products, among other websites, through Ebay.com, which is located in the Northern District 

of California. In addition, Defendants have placed labels on their packaging directing their 

customers to log onto Fitbit’s website to setup these scrap, non-genuine Fitbit products and to 

download product manuals from Fitbit, knowing that Fitbit is located in San Francisco, California. 

In addition to the above, venue for this action also properly lies in the Northern District of 

California pursuant to 28 U.S.C. § 1391(b)(2) because Defendants committed acts in furtherance 

of their operation, and a substantial part of the property that is the subject of this action is located,

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 4 of 21
Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 5 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 6 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

heart rates, altitude and speed. 

FITBIT 4,851,801 Among other goods and services: Pedometers; altimeters; 

scales and personal weighing scales; multifunctional 

electronic devices for displaying, measuring, and 

uploading to the Internet information including time, 

date, heart rate, global positioning, direction, distance, 

altitude, speed, steps taken, calories burned, navigational 

information, weather information, temperature, wind 

speed, changes in heart rate, activity level, hours slept, 

quality of sleep, and silent wake alarm; computer 

software for wireless data communication for receiving, 

processing, transmitting and displaying information 

relating to fitness, body fat, body mass index; computer 

software for managing information regarding tracking, 

compliance and motivation with a health and fitness 

program.

FITBIT FLEX 4,507,210 Multifunctional electronic devices for displaying, 

measuring, and uploading to the Internet information 

including time, distance, steps taken, activity level, 

calories burned, hours slept, quality of sleep, and silent 

wake alarm; pedometers.

4,851,802 Among other goods and services: Pedometers; altimeters; 

scales and personal weighing scales; multifunctional 

electronic devices for displaying, measuring, and 

uploading to the Internet information including time, 

date, heart rate, global positioning, direction, distance, 

altitude, speed, steps taken, calories burned, navigational 

information, weather information, temperature, wind 

speed, changes in heart rate, activity level, hours slept, 

quality of sleep, and silent wake alarm; computer 

software for wireless data communication for receiving, 

processing, transmitting and displaying information 

relating to fitness, body fat, body mass index; computer 

software for managing information regarding tracking, 

compliance and motivation with a health and fitness 

program.

4,851,803 Among other goods and services: Pedometers; altimeters; 

scales and personal weighing scales; multifunctional 

electronic devices for displaying, measuring, and 

uploading to the Internet information including time, 

date, heart rate, global positioning, direction, distance, 

altitude, speed, steps taken, calories burned, navigational 

information, changes in heart rate, activity level, hours 

slept, quality of sleep, and silent wake alarm; computer 

software for wireless data communication for receiving, 

processing, transmitting and displaying information 

relating to fitness, body fat, body mass index; computer 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 6 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 7 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

software for managing information regarding tracking, 

compliance and motivation with a health and fitness 

program.

(Collectively, the “Fitbit Marks”). The Fitbit Marks were registered to Fitbit at its principal place 

of business at the time of each registration in San Francisco, California.

18. The Fitbit Marks have been used in interstate commerce to identify and distinguish 

Fitbit’s high quality products and services since approximately 2009.

19. The Fitbit Marks have never been assigned or licensed to the Defendants in this 

matter.

20. Fitbit has expended substantial time, money, and other resources developing, 

advertising, and otherwise promoting the Fitbit Marks. The Fitbit Marks qualify as famous marks 

as the term is used in 15 U.S.C. Section 1125(c)(1).

21. Fitbit has extensively used, advertised, and promoted the Fitbit Marks in the United 

States in association with the sale of connected health and fitness wearable products and various 

associated mobile applications and online resources, and has carefully monitored and policed the 

use of the Fitbit Marks.

22. The Fitbit Marks are symbols of Fitbit’s quality, reputation, and goodwill and have 

never been abandoned.

23. As a result of Fitbit’s efforts, members of the consuming public readily identify 

merchandise bearing the Fitbit Marks as being high quality merchandise manufactured and sold by 

Fitbit.

24. The Fitbit Marks are inherently distinctive and have attained secondary meaning as 

an identifier of high quality connected health and fitness wearable products and various associated 

mobile applications and online resources.

25. Fitbit is informed and believes, and thereon alleges, that at all times relevant to this 

action Defendants had full knowledge of Fitbit’s ownership of the Fitbit Marks, including Fitbit’s 

exclusive right to use and license such intellectual property and the goodwill associated with it.

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 7 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 8 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

B. FITBIT’S QUALITY CONTROL AND REVERSE LOGISTICS SUPPLY 

CHAIN PROCESS 

26. To maintain its reputation for high quality products and services, Fitbit has 

established substantial, legitimate, and non-pretextual quality control procedures that it abides by 

and uses to ensure that non-conforming units do not diminish or tarnish Fitbit’s brand and 

goodwill. One of the ways that Fitbit does so is through a robust warranty and return program, as 

well as an established supply chain quality control process for any returns or exchanges from 

consumers, distributors, or anyone else. 

27. Because of the technical complexity of Fitbit products, Fitbit does not authorize 

any third party not associated with Fitbit to conduct refurbishment of Fitbit products for the intent 

of resale. Instead, Fitbit has a reverse logistics supply chain process, whereby Fitbit products that 

do not meet its high quality standards or that have been returned for any reason are evaluated and 

either refurbished by authorized third parties or designated to be scrapped and/or recycled. 

28. Thus, Fitbit products that do not meet Fitbit’s stringent quality standards for 

refurbishment are designated instead to be scrapped and/or recycled as part of Fitbit’s standard 

supply chain processes. The determination that such products cannot be refurbished and must be 

scrapped and/or recycled occurs for many reasons, including due to physical defects in the 

product. Regardless of the reason, products that do not meet Fitbit’s quality control standards and 

are designated to be scrapped and recycled are materially different from genuine Fitbit products. 

Indeed, products that are removed from Fitbit’s quality control processes without authorization 

themselves become counterfeit within the definition of the Lanham Act. 

C. FITBIT PUT DEFENDANTS ON NOTICE OF THE FITBIT MARKS AND 

WARRANTY IN 2015

29. Defendants claim that their business model is to sell end of life, discontinued, and 

refurbished consumer electronics products. Since at least sometime in 2015, Defendants’ product 

offerings have included certain “Fitbit” branded products. 

30. In 2015, Fitbit discovered that Defendants were using the name “Fitbit” as their 

vendor name on a consumer electronics website, called www.thenextweb.com, and had 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 8 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 9 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

misappropriated Fitbit’s trademarks and other intellectual property rights in the process. 

Defendants were also not disclosing that their sales were not covered by Fitbit’s warranty. Fitbit 

sent Defendants a cease and desist letter on November 19, 2015, demanding that Defendants halt 

their infringement of Fitbit’s intellectual property rights and not mislead consumers about any 

warranty. As such, no later than 2015, Defendants were on notice of Fitbit’s federally-registered 

trademarks and that further infringement would necessarily be a willful violation of Fitbit’s 

intellectual property rights. Defendants appeared to comply with Fitbit’s cease and desist letter,

and Fitbit believed that would be the end of the matter. 

D. DEFENDANTS EXPAND THEIR INFRINGEMENT AND BEGIN SELLING 

PRODUCTS IN COUNTERFEIT PACKAGING

31. Rather than ceasing their violations of Fitbit’s intellectual property rights, 

Defendants instead have expanded their infringement, selling non-genuine “Fitbit” products 

placed in counterfeit packaging, through much more established distribution channels, such as 

eBay.com, Groupon.com, Woot.com, and Overstock.com (Defendants’ “Established Distribution 

Channels”). Indeed, Fitbit is informed and believes that, beginning in approximately 2015, 

Defendants began selling a large volume of non-genuine “Fitbit” products online through their 

Established Distribution Channels, under the guise that these products had merely been 

“refurbished.” 

32. Through the Groupon platform alone, Fitbit is informed and believes, and thereon 

alleges, that Defendants have sold over 200,000 “Fitbit” branded products over the past two years, 

with an MSRP value for new genuine Fitbit products of over $20 million. Fitbit is informed and 

believes, and thereon alleges, that Defendants have sold many more through its other Established 

Distribution Channels, including over $80,000 of “Fitbit” branded products on eBay.com in the 

last two years according to publicly available data. 

33. Fitbit has now confirmed through numerous purchases of Defendants’ purportedly

“refurbished” Fitbit products through Defendants’ Established Distribution Channels that 

Defendants have been selling non-genuine and otherwise infringing “Fitbit” products, including in 

counterfeit packaging mocked up to resemble genuine Fitbit return replacement packaging. While

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 9 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 10 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

Defendants claimed the products were merely “refurbished,” Fitbit has confirmed that most of the 

products purchased from Defendants had actually been designated to be scrapped and/or recycled

as part of Fitbit’s standard quality control processes. 

34. In other words, as part of Fitbit’s standard quality control procedures, Fitbit and/or 

members of its authorized supply chain had designated these products to be scrapped and/or

recycled due to some defect or other quality control issue, but at some point before that occurred, 

the product was diverted and ended up with Defendants reselling them to end customers. 

35. To further deceive consumers, Defendants sold these scrap products in counterfeit 

packaging that attempts to mimic Fitbit’s genuine return replacement packaging. 

Example of Genuine Fitbit Return Counterfeit “Fitbit” Packaging Used

Replacement Packaging: By Defendants:

36. The counterfeit packaging used by Defendants reproduced, counterfeited, copied, 

and/or colorably imitated the Fitbit Marks and displayed spurious designations that are identical 

with, or substantially indistinguishable from, the Fitbit Marks. Defendants have applied their 

reproductions, counterfeits, copies, and/or colorable imitations of the Fitbit Marks to labels and/or

packaging intended to be used in commerce upon or in connection with the sale, offering for sale, 

distribution, or advertising of Fitbit products that are themselves not genuine within the meaning 

of the Lanham Act. Instead, these products were designated to be scrapped and/or recycled and 

were never intended to be resold to consumers. Defendants’ counterfeit packaging also referred 

the consumer to Fitbit.com to setup the product to further confuse and deceive the consumer into 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 10 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 11 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

believing that Fitbit authorized, was affiliated with, and/or approved the sale of this non-genuine 

product to consumers. 

37. Defendants have infringed, and are threatening to continue to infringe, Fitbit’s 

trademark rights by selling non-genuine “Fitbit” products, that are materially different from 

genuine Fitbit products. Moreover, Defendants have sold those products in counterfeit “Fitbit” 

packaging that mimics Fitbit’s federally registered trademarks to mislead consumers into believing 

that the products are authorized and genuine. Reselling products that had been designated for 

scrap and/or recycling has undermined, and continues to undermine, Fitbit’s quality control 

processes and usurped Fitbit’s right to control the quality of products destined for members of the 

consuming public. Because these products were determined not to meet up to Fitbit’s quality 

standards, and as a result were designated to be scrapped and/or recycled, there can be no doubt 

that the products are materially different from genuine products. Indeed, such products that were 

removed from Fitbit’s quality control processes without authorization themselves are counterfeit 

within the definition of the Lanham Act. 

E. DEFENDANTS’ MISLEADING AND INFERIOR WARRANTY

38. In addition, Defendants included a “Warranty Card” in their product shipments that 

referred the customer to the Fitbit website to download a product manual, and further misled the 

consumer into believing that Fitbit authorized, was affiliated with, and/or approved the sale of this 

non-genuine product to consumers by failing to state that there is no warranty provided by Fitbit 

for these products:

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 11 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 12 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

39. Thus, Defendants sold these scrap products without even providing a disclaimer, 

advising consumers that they are not Fitbit authorized retailers, and that the products are not 

eligible for Fitbit warranty support, as required for example by Cal. Civ. Code Section 1797.81. 

This failure dramatically increased the likelihood, confirmed in the consumer reviews of 

Defendants’ product sales, that their customers would be confused about Fitbit’s support of the 

warranty, further damaging the consumer experience and increasing the damage to Fitbit’s brand. 

40. As such, Defendant’s inferior warranty coverage is another material difference 

sufficient by itself to render the product not genuine under the Lanham Act. Defendants’ warranty 

is for 60 days but only covers replacement of broken units. On the other hand, Fitbit has a 45 day 

Satisfaction Guaranteed Return Policy that allows the consumer to return a product for any reason 

for 45 days and allows the return of defective products for a year in the United States. See Fitbit’s 

Warranty and Return Policy, available at https://www.fitbit.com/legal/returns-and-warranty.

F. CONSUMER CONFUSION CAUSED BY DEFENDANTS

41. Despite being put on notice by Fitbit in 2015, Defendants continued to 

conspicuously use and/or counterfeit the Fitbit Marks and trade name throughout their advertising 

through their Established Distribution Channels, and on the packaging and warranty card for the 

non-genuine “Fitbit” products they sell. Fitbit is informed and believes, and thereon alleges, that 

Defendants did so intentionally and willfully to increase their sales by causing consumers to 

believe that their product sales and warranty are somehow associated with, affiliated with, and 

authorized by, Fitbit, when they are not and when the products themselves are non-genuine and/or 

are counterfeit within the meaning of the Lanham Act. 

42. Not only are consumers likely to be confused by Defendants’ use of the Fitbit 

Marks, but Fitbit has found significant evidence of actual consumer confusion and 

brand/reputational harm to Fitbit from consumers who have recently complained about the 

products sold by Defendants. 

43. The harm to Fitbit’s brand and goodwill caused by Defendants’ conduct is ongoing, 

as the negative reviews continue to mount, and confirm the confusion and disappointment caused 

to consumers due to the inferior quality of the product and warranty sold by Defendants: 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 12 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 13 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

44. Another recent consumer review for Defendants’ “Fitbit” sales further exemplifies 

the actual customer confusion, as she relays her and her daughter’s disappointment after calling 

Fitbit for customer service and warranty support:

45. The scathing reviews and resulting harm to Fitbit’s brand and reputation go on and 

on, as Defendants surely knew would occur when they decided to sell scrap products that were 

never intended to be resold to consumers in the first place:

/ / / /

/ / / /

/ / / /

/ / / /

/ / / /

/ / / /

/ / / /

/ / / /

/ / / /

/ / / /

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 13 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 14 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

46. Accordingly, Defendants’ use of the Fitbit Marks has caused actual confusion or 

mistake, and deceived consumers into believing there is an affiliation, connection, or association 

between Fitbit and Defendants, and has confused members of the public as to the origin, 

sponsorship, authorization, and/or approval by Fitbit of Defendants’ “Fitbit” branded product 

sales. In addition to monetary damages to Fitbit, Defendants’ unlawful actions have caused 

irreparable harm to Fitbit’s brand and reputation, as to which there is no adequate remedy at law.

47. Fitbit requested that Defendants allow Fitbit to inspect their inventory to ensure 

that Defendants do not resell any more scrap products, but Defendants rejected that request. They 

also have impeded Fitbit’s attempts to ensure that Defendants’ product returns from their 

Established Distribution Channels do not go out to members of the consuming public yet again.

48. Indeed, Fitbit is informed and believes, and thereon alleges, that thousands of 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 14 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 15 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

consumers who purchased these scrap products through the Groupon platform have already 

returned them to Groupon. Though Fitbit requested to receive and inspect those rejected products, 

Groupon recently returned them back to Defendants. Accordingly, in addition to all other relief 

requested, good cause and exigent circumstances exist here to order temporary and preliminary 

injunctive relief to stop Defendants from reselling any “Fitbit” branded products in their 

inventory, including the thousands of recently returned products from Groupon, without prior 

inspection and approval by Fitbit to ensure Defendants sell no more scrap products to members of 

the consuming public. 

FITBIT’S CLAIMS FOR RELIEF

FIRST CLAIM FOR RELIEF

(Federal Trademark Counterfeiting and Infringement; 15 U.S.C. § 1114)

49. Fitbit incorporates the preceding paragraphs of this Complaint as if fully set forth 

herein.

50. The Fitbit Marks are valid, protectable trademarks that have been registered as 

marks on the principal register in the United States Patent and Trademark Office.

51. Fitbit is the owner and registrant of the Fitbit Marks.

52. As described in more detail above, Defendants have used and counterfeited the 

Fitbit Marks in connection with the marketing, promotion, and sale of their goods and services 

without Fitbit’s consent, in a manner that is likely to cause, and has actually caused, confusion 

and/or mistake, or that has deceived members of the consuming public and/or the trade. Indeed, 

Defendants counterfeiting and infringing activities are likely to cause and are actually causing

confusion, mistake, and deception among members of the trade and the general consuming public 

as to the origin, sponsorship, and quality of Defendants’ infringing products, counterfeit 

packaging, inferior warranty, and other related commercial activities. As of the filing of this 

Complaint, Defendants are continuing to infringe the Fitbit Marks unabated as alleged further 

above.

53. Defendants’ infringement of the Fitbit Marks is willful.

54. Fitbit has been, and continues to be, damaged by Defendants’ infringement, 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 15 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 16 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

including by suffering irreparable harm through the diminution of trust and goodwill among Fitbit 

consumers and members of the general consuming public and the trade.

55. As a result of Defendants’ infringement of the Fitbit Marks, Fitbit is entitled to an

injunction, as set forth below, and an order of destruction of all of Defendants’ infringing 

materials.

56. Fitbit is entitled to an injunction against Defendants, as well as all monetary relief 

and other remedies available under the Lanham Act, including but not limited to trebled damages 

and/or actual profits, reasonable attorney’s fees, costs and prejudgment interest, and/or statutory 

damages.

SECOND CLAIM FOR RELIEF

(Federal Trademark Dilution; 15 U.S.C. § 1125) 

57. Fitbit incorporates the preceding paragraphs of this Complaint as if fully set forth 

herein.

58. The Fitbit Marks are famous trademarks within the meaning of the Anti-Dilution 

Act, 15 U.S.C. § 1125(c).

59. As a result of Defendants’ use and counterfeiting of the Fitbit Marks to identify 

inferior products and warranties with the Fitbit Marks, as alleged further above, causes significant 

harm to Fitbit’s brand and reputation.

60. Defendants’ acts have diluted and will continue to dilute the distinctive nature of 

the Fitbit Marks through blurring and tarnishment, in violation of 15 U.S.C. § 1125(c).

61. The distinctive nature and reputation of the Fitbit Marks is extremely valuable, and 

Fitbit is suffering and will continue to suffer irreparable harm, blurring, and tarnishment of the 

Fitbit Marks if Defendants’ wrongful conduct is allowed to continue.

62. The dilution of the Fitbit Marks will likely continue unless the Court orders 

injunctive relief against Defendants.

63. Fitbit is entitled to an injunction against Defendants, as well as all monetary relief 

and other remedies available under the Lanham Act, including but not limited to trebled damages 

and/or actual profits, reasonable attorney’s fees, costs and prejudgment interest, and/or statutory 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 16 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 17 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

damages.

THIRD CLAIM FOR RELIEF

(Federal Unfair Competition; 15 U.S.C. § 1125)

64. Fitbit incorporates the preceding paragraphs of this Complaint as if fully set forth 

herein.

65. The Fitbit Marks are valid, protectable trademarks that have been registered as 

marks on the principal register in the United States Patent and Trademark Office.

66. Fitbit is the owner and registrant of the Fitbit Marks.

67. Fitbit operates under and uses the trade name “Fitbit” in connection with its 

products and services.

68. Defendants have made commercial use of and counterfeited the Fitbit Marks and 

Fitbit’s trade name.

69. Defendants’ counterfeiting and infringing activities, and related false descriptions 

and representations as to origin and quality of their product sales, are likely to cause, and are 

actually causing, confusion, mistake, and/or deception among members of the consuming public 

and members of the trade. These members of the consuming public and members of the trade 

have been, and will continue to be, misled into believing that there is an affiliation, connection, or

association between Fitbit and Defendants, and/or that they have been, or will be, misled as to the 

origin, sponsorship, or approval of Defendants’ sale of inferior scrap products, inferior warranty, 

and other related commercial activities.

70. Fitbit has not consented to Defendants’ use of the Fitbit Marks or Fitbit trade name.

71. Defendants’ unauthorized use of the Fitbit Marks and Fitbit trade name was willful.

72. Defendants’ acts constitute false statements in connection with products and/or 

services distributed in interstate commerce, in violation of Section 43(a) of the Lanham Act, 15 

U.S.C. § 1125(a).

73. Defendants’ acts have caused and are continuing to cause irreparable injury to 

Fitbit’s brand, goodwill, and reputation. 

74. An award of monetary damages alone cannot fully compensate Fitbit for its injuries 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 17 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 18 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

and Fitbit lacks an adequate remedy at law.

75. Fitbit is entitled to an injunction against Defendants, as well as all monetary relief 

and other remedies available under the Lanham Act, including but not limited to trebled damages 

and/or actual profits, reasonable attorney’s fees, costs and prejudgment interest, and/or statutory 

damages.

FOURTH CLAIM FOR RELIEF

(California Unfair Competition; Cal. Bus. Prof. Code §§ 17200, et seq.)

76. Fitbit incorporates the preceding paragraphs of this Complaint as if fully set forth 

herein. 

77. Defendants have engaged in unlawful and unfair business acts or practices, as 

defined by Cal. Bus. Prof. Code §§ 17200, et seq., by committing the illegal acts and practices as 

alleged herein, all in an effort to gain an unfair competitive advantage over Fitbit. 

78. Defendants’ misconduct was unlawful because, as described herein, their 

misconduct constitutes violations of numerous state and federal statutes, including but not limited 

to Cal. Civ. Code Section 1797.81, state false advertising laws such as Cal. Bus. Prof. Code § 

17500, as well as the Lanham Act, 15 U.S.C. §§ 1114 and 1125, and the Federal Trade 

Commission Act, 15 U.S.C. § 45. Further, their misconduct was unfair in that Defendants’ 

actions, as described herein, significantly threatened and/or harmed competition by selling scrap 

products diverted from Fitbit’s supply chain to undercut the legal market for genuine Fitbit 

products.

79. These unlawful and unfair business acts and/or practices were committed pursuant 

to Defendants’ business marketing, promotional, and sales efforts in relation to the Fitbit Marks 

and the Fitbit website.

80. As a direct and proximate result of Defendants’ unlawful and unfair business 

practices, Fitbit has lost money, and has suffered irreparable injury to its brand, business 

reputation, and goodwill. As such, Fitbit’s remedy at law is not adequate to compensate for the 

injuries inflicted by Defendants. Accordingly, Fitbit is entitled to temporary, preliminary, and 

permanent injunctive relief against Defendants, in addition to restitution in an amount to be proven 

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 18 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 19 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

at trial. 

PRAYER FOR RELIEF

WHEREFORE, Fitbit respectfully prays that the Court enter judgment as follows:

1. That Defendants infringed the Fitbit Marks, engaged in trademark infringement and 

counterfeiting, engaged in trademark dilution, and engaged in unfair competition through their use 

and counterfeiting of the Fitbit Marks and related product sales;

2. That Defendants’ trademark infringement was knowing and willful and committed 

with bad faith and intent to deceive and that this case is exceptional under 15 U.S.C. § 1117(a);

3. That the Court enter an order enjoining and restraining Defendants and all persons 

or entities acting as agents of or in concert with Defendants, during the pendency of this action and 

thereafter perpetually, from infringing, counterfeiting, or diluting the Fitbit Marks in any way, 

including but not limited to the resale of any scrap products in Defendants’ inventory;

4. That the Court enter an order impounding and delivering to Fitbit for ultimate 

destruction any infringing and/or counterfeit “Fitbit” branded products, packaging, or other 

collateral in Defendants’ possession, custody, or control;

5. That the Court enter an order directing Defendants to send a Plaintiff-approved 

notice to any customer who purchased any infringing or counterfeit “Fitbit” branded product from 

Defendants, informing the customer that the sale of the product violated Federal trademark and 

counterfeiting laws, and that Defendants will refund the money paid by the consumer immediately 

upon request and return of the product, with any such product returns going directly to Fitbit or its 

counsel for ultimate destruction;

6. That the Court enter an order requiring Defendants to account to and pay Fitbit for 

all profits and damages resulting from Defendants’ infringement, counterfeiting activities and 

Federal unfair competition;

7. That Plaintiff be awarded treble damages to the fullest extent available under the 

law;

8. That Plaintiff be awarded statutory damages to the extent elected and to the fullest 

extent available under the law;

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 19 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 20 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

9. That Plaintiff be awarded restitution from Defendants to the fullest extent available 

under the law;

10. That Plaintiff be awarded costs, reasonable attorney’s fees, and pre-judgment 

interest on its judgment amount to the fullest extent available under the law; and,

11. That Plaintiff be granted such other and further relief as the Court deems just and 

proper.

DATED: January 6, 2017 SIDEMAN & BANCROFT LLP

By: /s/ Zachary J. Alinder

Zachary J. Alinder

Attorneys for Plaintiff 

FITBIT, INC.

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 20 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9461-10\3137699 21 Case No. 3:17-cv-00079

COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

JURY DEMAND

Pursuant to Civ. L.R. 3-6 and Fed. R. Civ. Proc. 38, Plaintiff FITBIT, INC. hereby 

demands trial by a jury on all issues herein so triable.

DATED: January 6, 2017 SIDEMAN & BANCROFT LLP

By: /s/ Zachary J. Alinder

Zachary J. Alinder

Attorneys for Plaintiff 

FITBIT, INC.

Case 3:17-cv-00079-HRL Document 1 Filed 01/06/17 Page 21 of 21