Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 20 of 22

Pursuant to Fed. R. Civ. P. 38, Michael D. Calmese respectfully demands a trial by jury on

all issues properly triable by a jury in this action.

PRAYER FOR RELIEF

WHEREFORE, Michael Calmese respectfully requests that this Court enter judgment in its favor

on each and every claim for relief set forth above and award it relief, including but not limited to

the following:

A. An Order declaring that Defendant Under Armour’s use of the PROVE IT!® mark for the
Disputed Goods/Services infringes Michael Calmese’s PROVE IT!® Mark, dilutes Michael
Calmese’s PROVE IT!® mark, and constitutes unfair competition under federal and/or state law,

as detailed above;

B. A permanent injunction enjoining Under Armour and its employees, agents, partners,
officers, directors, owners, shareholders, principals, subsidiaries, related companies, affiliates,

distributors, dealers, and all persons in active concert or participation with any of them:

1. From using, registering, or seeking to register the PROVE IT!® mark in any form,
including with any other “ride-along” wording or designs, in connection with the Disputed
Goods/Services, and from using any other marks, logos, designs, designations, or indicators that
are confusingly similar to any of Michael Calmese’s PROVE IT!® Mark and/or dilutive of

Michael Calmese’s PROVE IT!® mark;

20


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 14 of 22

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Under Armour Youth T-shirt, Prove it on the Field; Youth Under Armour; 100% polyester;
Navy t-shirt; Prove it on the Field with MSU Bobcat logo; Heat Gear ...

e Under Armour Youth Prove it on the Ice T-Shirt - Sale & Clearance ...
https:/Avww.modells.cony/...under_armour_youth_prove_it_on_the_ice_t-shirt-1281...
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Under Armour Youth Prove it on the Ice T-Shirt. Item # 1281873-001. Under Armour. 0.0.
Rated 0 out of 5 stars. No Reviews Write the First Review. We regret that ...

e UNDER ARMOUR Boys' UA Prove It At The Plate T-Shirt | Shop Your ...
www.shopyourway.com/under-armour-boys-ua-prove-it-at-the-plate.. /452306896
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Sep 16, 2015 - UA Techa,,¢ fabric is quick-drying, ultra-soft & has a more natural feel Moisture
Transport System wicks sweat & dries fastAnti-odor technology ...

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www.belk.com » Kids » Boys' Clothing » Back to Boys' Clothing
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Your little active guy with love this bold tee! Crafted from comfy cotton with a sleek graphic on
the front, this go-to top is ideal for his versatile style.

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www.belk.com » Kids » Baby Clothing » Outfits & Sets » Back to Outfits & Sets
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$27.99 - Out of stock
It's never too early to get him used to the feeling of a basketball in his hands and this sleek shirt
and short set by Under Armour® is just the way to do it!

e Under Armour Shirt Boys Extra Large XL Prove It on The Court ... - eBay
hitps://www.ebay.com >... » Boys' Clothing (Sizes 4 & Up) » Tops, Shirts & T-Shirts
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item 1 Under Armour Prove It On the Court Basketball T-Shirt 1290562 Gray Size 2XL -
Under Armour Prove It On the Court Basketball T-Shirt 1290562 Gray Size ...

Youth Under Armour 'Prove it on the Field' Football Tee | DuBois Book ...
www.duboisbookstore.com/uc/MerchDetail.aspx? MerchID =1389216&type=6

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This youth red performance material tee says "Prove it on the Field" in patterned white and grey
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14


Case 2:17-cv-03955-SPL Document1 Filed 10/26/17 Page 5 of 22

12. Since 1998 Prove It!®branded products have been licensed, offered for sale, sold and

distributed throughout the United States at key sporting events and Globally on the

internet at www.USAproveit.com:

PROVE IT1@ HOME PAGE >>

ORDER OTHER PROVE ITI® CLOTHING >

DISCLAIMER OF WARRANTIES / RETURNS >>|
PROVE IT!@ FRIENDS >
PROVE I
PROVE IT!@ FOOTBALL >
PROVE IT!@ BASKETBALL >
PROVE IT!@ BASEBALL >
PROVE IT!© GOLF >
PROVE IT!@ SOCCER >
PROVE IT!@ RACING >

PROVE IT! FITNESS >

PROVE IT!@ HOCKEY >

13. The registration for the ‘PROVE IT!® Mark is attached as Exhibit A hereto.
Attached as Exhibit B is a true and correct copy of the April 28, 2017 Cease and
Desist Notification sent to Under Armour.

14. The PROVE IT!® Mark enjoys a registration date of May 18, 1998, well before
Under Armour’s first use of “PROVE IT” sometime in 2016.

15. Because of its long-standing registration since May 18, 1998, the "PROVE IT!®

Mark became incontestable on September 15, 2010.


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 21 of 22

2. From representing by any means whatsoever, directly or indirectly, that Under
Armour, any products or services offered by Under Armour, or any activities undertaken by
Under Armour, are associated or connected in any way with Michael Calmese or sponsored by or

affiliated with Michael Calmese in any way;

3. From assisting, aiding or abetting any other person or business entity in engaging in or

performing any of the activities referred to in subparagraphs B (1)-(2);

4. An Order directing Defendant Under Armour to destroy all the Disputed
Goods/Services and any packaging, signage, advertisements, promotional materials, stationery,
forms, and/or any other materials and things in connection with those products/services that
contain or bear the PROVE IT!® mark or any other marks, logos, designs, designations, or
indicators that are confusingly similar to any of Michael D. Calmese’s PROVE IT!® Mark

and/or dilutive of Mr. Calmese’s PROVE IT!® mark;

C. An Order directing that, within thirty (30) days after the entry of the injunction, Under
Armour file with this Court and serve on Michael D. Calmese a report in writing and under oath
setting forth in detail the manner and form in which Under Armour has complied with the

injunction;

D. An Order requiring Defendant Under Armour to account for and pay to Michael D. Calmese
any and all profits arising from the foregoing acts, and increasing such profits, in accordance

with 15 U.S.C. § 1117 and other applicable laws;

E. An Order requiring Under Armour to pay Plaintiff Michael Calmese damages in an amount
as yet undetermined caused by the foregoing acts, and trebling such damages in accordance with

15 U.S.C. § 1117 and other applicable laws;

21


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 18 of 22

and thus constitute trademark infringement, false designation of origin, passing off,
and unfair competition in violation of Section 43(a)(1)(A) of the Lanham Act, 15

U.S.C. § 1125(a)(1)(A).

THIRD CLAIM FOR RELIEF Trademark Dilution Under Section 43(c) of the
Lanham Act, 15 U.S.C. § 1125(c)

48. Michael D. Calmese repeats and re-alleges each and every allegation set forth in
Paragraphs 1 through 47.

49, Michael D. Calmese’s PROVE IT!® trademark is famous, as that term is used in 15
U.S.C. § 1125(c), and was famous before Under Armour first use of the PROVE IT
mark, based on, among other things, the inherent distinctiveness and federal
registration of Michael D. Calmese’s registered PROVE IT!® mark and the extensive
nationwide use, advertising, promotion, and recognition of that mark.

50. Under Armour’s actions, as described above, are likely to dilute the distinctive quality
of Michael D. Calmese’s PROVE IT!® mark by blurring in violation of Section 43(c)
of the Lanham Act, 15 U.S.C. §1125(c), as amended by the Trademark Dilution
Revision Act of 2006.

FOURTH CLAIM FOR RELIEF Common-Law Trademark Infringement and
Unfair Competition

51. Michael D. Calmese repeats and re-alleges each and every allegation set forth in
Paragraphs 1 through 50.

52. Under Armour’s actions, as described above, are likely to cause confusion, or to
cause mistake, or to deceive as to the affiliation, connection, or association of Under

Armour with Michael D. Calmese, or as to the origin, sponsorship, or approval of

18


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 10 of 22

26. Not even two weeks after Mr. Calmese successfully defended himself at trial against
adidas America Inc’s., frivolous lawsuit In December of 2010 in the matter entitled
adidas America Inc. vs. Michael D. Calmese Case No. 3:08-cv-00091, Mr. Calmese
started up a dialog with Under Armour and wrote Defendant Under Armour two
times and Under Armour responded once by email in 2010 and once with a letter in
2011 and basically stated Under Armour was, “moving in another direction” and that
there was no interest in using Mr. Calmese’s Prove It! trademark. The December
2010 Letter Mr. Calmese emailed to Under Armour is attached hereto as Exhibit C.

27. Under Armour was therefore fully aware of Mr. Calmese’s trademark rights surround
the PROVE IT!® Mark and more importantly the outcome in the adidas America Inc.
vs. Michael D. Calmese lawsuit where the Oregon District Court ruled in Mr.
Calmese’s favor at trial concluding that only Mr. Calmese could continue to use the
mark PROVE IT!® on clothing, not adidas, not Under Armour or any other third
party.

28. Adidas America Inc. subsequently also LOST their frivolous PTO Cancellation
Proceeding in April of 2016 nearly 10 years after filing it.

29. That Defendant has used PROVE IT in a highly dominant way over its other text is
relevant to our claim.

30. The offensive and unauthorized PROVE IT T-shirts produced by Defendant always
uses PROVE IT followed by a “ride-along” text that is sometimes in a different font,

color and size.

10


Case 2:17-cv-03955-SPL Document1 Filed 10/26/17 Page 7 of 22

PROVE IT!® Racing team set a World Record in the National Hotrod Racing Association

(“NHRA”). Mr. Calmese has even signed agreements and licensing agreements for State,

national and global audiences with Eastbay Inc., TOYOTA and the GOODWILL GAMES as
well as sponsored numerous charity events hosted by professional athletes:

ATIOWAL RACEWA

~ Joe Mozeris—Competition Eliminator Champion
Tucton, Ariz. MURA-Lucas Drog Racing Serle March 30, 2008

oe

Got Game?
BRrove

Certificate of Peformance

r@ Annual Buawetoer

Beecns Dee ter
~__ Error! Hyperlink


Case 2:17-cv-03955-SPL Document1 Filed 10/26/17 Page 6 of 22

16. Also attached as Exhibit D, is a true and accurate copy of Plaintiffs Nunc Pro Tune
Trademark Assignment (“nunc pro tunc”) filed in October of 2017.

17. The PROVE IT!® Mark enjoys an incontestable federal trademark registration.

18. In 1998, Mr. Calmese acquired U.S. Registration No. 2,202,454 for the mark PROVE
IT! in International Class 25 for “Clothing”, not limited to t-shirts. The PROVE
IT!® Mark covers a wide range of sporting activities in multiple sports not limited to
football, baseball, soccer, hockey, basketball and can again be purchased at

www.USAproveit.com (Also see PROVE IT!® TV to see other markets):

PROWE IT!

19. The PROVE IT!® Mark was registered for more than 18 years prior to Under
Armours unauthorized use of “PROVE IT” in 2016 and 2017.

20. Since 1998, Mr. Calmese’s line of products bearing the PROVE IT!® Mark have enjoyed
substantial success and popularity, and have been sold on Mr. Calmese’s USAproveit.com
website, and by other retailers.

21. Products bearing the PROVE IT!® Mark have been continuously used and sold and are
extremely valuable to Mr. Calmese.

22. In 2001 Mr. Calmese entered into a licensing agreement with the NBA’s Phoenix Suns

basketball team for the use of Mr. Calmese’s PROVE IT!® Mark. In 2003 Mr. Calmese’s


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 19 of 22

Under Armour, its products, and its commercial activities by or with Mr. Calmese
such that Under Armour’s acts constitute infringement of Mr. Calmese’s proprietary
rights in its registered PROVE IT!® Mark, misappropriation of Mr. Calmese’s
goodwill in those marks, and unfair competition under Arizona common law.

FIFTH CLAIM FOR RELIEF Dilution of the PROVE IT!® Mark Under
Arizona Law

53. Under Armour repeats and re-alleges each and every allegation set forth in
Paragraphs | through 52 of these counterclaims.

54. The PROVE IT!® mark is widely recognized by the general consuming public in
Arizona as a designation of source for Michael D. Calmese’s products and services.

55. Through extensive use and promotion, Michael D. Calmese’s distinctive PROVE
IT!® mark is famous, as defined under A.R.S. 44-1448.01, and was famous before
Under Armout’s first use of the PROVE IT!® mark.

56. Under Armout’s use of Mr. Calmese’s registered PROVE IT!® mark, as described
above, is likely to dilute the distinctive quality of the famous PROVE IT!® mark, as
defined under A.R.S. 44-1448.01.

57. Under Armour seeks to derive a commercial benefit from the value and goodwill
associated with the famous PROVE IT!® mark.

58. On information and belief, Under Armour’s unlawful use of its dilutive PROVE IT
marks is willful and deliberate and with an intent to misappropriate the benefit of

Michael Calmese’s goodwill.

JURY DEMAND

19


Case 2:17-cv-03955-SPL Document1 Filed 10/26/17 Page 9 of 22

: > Y
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PROVE IT!
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24. Famous Arizona professional athletes as seen above and like Jake Plummer have been

wearing AND promoting PROVE IT!® branded produces since 1998:

25. Mr. Calmese has enforced his rights to protect the PROVE IT!® Mark each and every
time a third party has used or attempted to apply for a confusingly similar mark
without Mr. Calmese’s authorization. All of the relevant third party applicants who
have filed an application with the United States Patent Trademark Office (“PTO”)
have been contested and continue to be challenged including but not limited to
USPTO Reg. No. 3756200 assigned to Mr. Calmese in 2005 and USPTO Reg. No.
5008789. The relevant non-applicants to use the PROVE IT!® Mark without Mr.
Calmese authorization are notably adidas America Inc., and now Defendant Under

Armour to name a few.


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17.
\> FILED _. LOBGED

Michael D. Calmese ocT 26 2017 Vv

3046 N. 32TM Street Unit #321 “

CLERK U § DISTRICT COURT
Phoenix, Arizona 85018 . DISTRICT OF ARIZONA
(602)954 9518 BY. . DEPUTY |
Attorney Pro Se Litigant

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

MICHAEL D. CALMESE, a resident of Arizona, ) No,_CV-17-03955-PHX-SPL

Plaintiff, JURY TRIAL DEMANDED

UNDER ARMOUR, INC., a Maryland Corporation, )

Defendant )

COMPLAINT

Plaintiff, Michael D. Calmese (“Mr. Calmese”), alleges as follows, upon actual knowledge with

respect to itself and its own acts, and upon information and belief as to all other matters:

NATURE OF THE ACTION

1. This is a civil action for trademark infringement, trademark dilution, and unfair
competition under the Lanham Act, 15 U.S.C. § 1051, et seq. and/or Arizona
statutory and common law. Mr. Calmese seeks equitable and monetary relief from
Defendant’s willful violations of Mr. Calmese’s trademark rights in its registered
PROVE IT!® trademark, which Mr. Calmese extensively uses on T-SHIRTS and
promotes in various ways, across multiple product lines, services, campaigns, events,

1


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 12 of 22

Here are accurate copies of some of the offensive PROVE IT T-shirts produced by

Under Armour without Mr. Calmese’s authorization or permission:

Notwithstanding Under Armout’s sports themed t-shirts using the PROVE IT!® Mark
similar to Mr. Calmese, Under Amour has also made a t-shirt for in the woods using Mr.

Calmese’s registered PROVE IT!® Mark which is nearly identical:

12


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 11 of 22

31. Defendant’s use is as follows ... its PROVE IT always printed across the chest, just
like Plaintiff, separated by a box or followed by a line-break from PROVE IT which
again makes is a “ride along” issue.

32. Under Armours’ willful negligence with their failure to comply with the law and their
own 2011 Agreement was done with malice and the willful intent to deceive the
public and cause Mr. Calmese and his business great harm. In fact consumers have
purchased the offending and unauthorized PROVE IT!® branded products from
Under Armour because of the nearly identical use of the phrase PROVE IT across the
chest on t-shirts just like Plaintiff's. Because of the dominate and near identical use
of Mr. Calmese’s PROVE IT!® Mark by Under Armour, these confused consumer
believed there was some kind of sponsorship or affiliation between Mr. Calmese and

Defendant Under Armour.

Under Armour’s Wrongful Use of the PROVE IT!® Mark and Under

Armour’s Breach of the 2011 Agreement

33. Upon information and belief, since at least April of 2016, Under Armour started
marketing its new line of offending PROVE IT T-shirts featuring the sport of
football, baseball, basketball and hockey all of which have a dominate use of the
phrase PROVE IT placed across the chest of each t-shirt just like Mr. Calmese uses
it. Indeed, as a result of Under Armour’s marketing efforts which includes College
Licensing, numerous athletic retailers across the country have offered for sale and

sold these offensive and unauthorized PROVE IT T-shirts online and at retail stores.

11


Case 2:17-cv-03955-SPL Document1 Filed 10/26/17 Page 8 of 22

reference not valid.

— PROVE IT!

WHERE THE WORLD'S BEST ATHLETES PROVE IT.

23. In 2009 the NFL’s Arizona Cardinals football team wore PROVE IT!® branded t-shirts on
their way to the SUPER BOWL and were seen on many local networks in including the
global Network ESPN, “wearing those red shirts that say prove it.” Further, as recent as
2016 Mr. Calmese entered into a contract with the Nickelodeon Global network as a direct
result of Mr. Calmese’s marketing efforts proving PROVE IT!® branded products are still
being view around the world on global and cable networks and again consumers can of
course purchase Mr. Calmese’s products all over the world on Mr. Calmese’s website

(pictures below are property of Nickelodeon and NFL Properties):


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 22 of 22

F. Statutory damages of up to $2 million per type of goods or services sold, offered for sale, or
distributed, under 15 U.S.C. § 1117(c) for infringement of a registered mark, including by use of

a counterfeit mark;

G. An Order requiring Under Armour to pay Michael Calmese all of its litigation expenses,
including reasonable attorneys’ fees and the costs of this action pursuant to 15 U.S.C. § 1117,

A.R.S. 44-1451, and other applicable laws; and Other relief as the Court may deem appropriate.

Respectfully submitted this 26" day of October 2017

By:

Michael/Y. Chime Attorney Pro Se Litigant

22


Case 2:17-cv-03955-SPL Document1 Filed 10/26/17 Page 4 of 22

this action exists in this district and Defendant has offered the offending goods for
sale in this district.

10. Jurisdiction is proper in the District of Arizona because Defendant has purposefully
directed its PROVE IT branded t-shirts and other goods, services and business
activities towards residents of this State. In Arizona and elsewhere, Defendant sells
PROVE IT branded clothing namely t-shirts using Plaintiff's PROVE IT!®
trademark through its website located at www.underarmour.com; through third-party
online retailers; by catalog; through its own retail and outlet stores; and through

multiple “brick and mortar” retail stores worldwide.

FACTUAL ALLEGATIONS
11. Mr. Calmese is engaged in the business of designing, developing, manufacturing, marketing
and selling sports apparel which will soon include shoes, all of which prominently displays

Mr. Calmese’s Federal Registered Trademark “PROVE IT!®” Registration No. 2,202,454:

PROVE IT%.



Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 15 of 22

35. Not satisfied with infringing the PROVE IT!® Mark by featuring different sports like
Mr. Calmese does, Under Armour has escalated their infringement by offering for
sale these types of offensive and unauthorized PROVE IT T-shirts with multiple

colleges logos on them:

Ht

PHOVE {T

ON THE

36. Under Armout’s use of the PROVE IT! Mark for its variety of PROVE IT T-shirts is
not only is confusingly similar to Mr. Calmese use and infringes on the PROVE IT!®
Mark, it also expressly breaches a prior 2011 agreement between Under Armour and
Mr. Calmese where Under Armour stated it was not interested in using Mr. Calmese’s
PROVE IT!® mark in Defendant’s second response to Mr. Calmese’s December
2010 correspondence.

37. In December of 2010 Mr. Calmese sent Under Armour a Letter that Defendant
responded to in early 2011. Under Armour stated they were not interested in using
Mr. Calmese’s registered PROVE IT!® trademark because they were, “moving in

another direction” and wished Mr. Calmese good luck. Under Armour’s new uses of

15


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 17 of 22

43. Defendant’s unauthorized use of Mr. Calmese’s registered PROVE IT!® trademark is
likely to dilute the distinctiveness and value of Mr. Calmese’s registered PROVE

IT!® trademark.

FIRST CLAIM FOR RELIEF Trademark Infringement Under Section 32(1) of
the Lanham Act, 15 U.S.C. § 1114(1)

44, Michael D. Calmese repeats and realleges each and every allegation set forth in

Paragraphs 1 through 43 of this Complaint.

45. Without Michael D. Calmese’s consent, Defendant used and continues to use in
commerce reproductions, copies, and colorable imitations of Michael D. Calmese’s
registered PROVE IT!® trademark in connection with the offering, distribution,
and/or advertising of goods and services, which is likely to cause confusion, or to
cause mistake, or to deceive, in violation of Section 32(1) of the Lanham Act, 15

U.S.C. § 1114(1).

SECOND CLAIM FOR RELIEF Trademark Infringement, False Designation of
Origin, Passing Off, and Unfair Competition Under Section 43(a)(1)(A) of the
Lanham Act, 15 U.S.C. § 1125(a)(1)(A)

46. Under Armour repeats and realleges each and every allegation set forth in Paragraphs
1 through 45 of this Complaint.

47. Defendant’s actions, as described above, are likely to cause confusion, or to cause
mistake, or to deceive as to the origin, sponsorship, or approval of Defendant, its

products, its services, and/or its commercial activities by or with Michael D. Calmese,

17


3.

Case 2:17-cv-03955-SPL Document1 Filed 10/26/17 Page 3 of 22

THE PARTIES

Michael D. Calmese is a resident of the State of Arizona having an address at 3046
N. 32 Street Unit 321, Phoenix, Arizona 85018.
Upon information and belief, UNDER ARMOUR, INC. is a Maryland corporation
with its principal place of business in Baltimore, Maryland at 1020 Hull Street,
Baltimore, Maryland 21230.

Defendant’s actions alleged herein were those of itself, its agents and/or licensees.
JURISDICTION AND VENUE

This Court has jurisdiction pursuant to 15 U.S.C. § 1121(a), 28 U.S.C. §§ 1138(a) &
(b), and 28 U.S.C. § 1367(a).

This Court has jurisdiction over the federal trademark infringement claim pursuant to
15 U.S.C. § 1121(a) and 28 U.S.C. § 1338(a).

This Court has supplemental jurisdiction over the state law claims pursuant to 28
U.S.C. § 1338(b) and § 1367(a) as all claims herein form part of the same case or
controversy.

Personal jurisdiction exists over the Defendant because it conducts substantial
business in Arizona and therefore has sufficient contacts such that it would not offend
traditional notions of fair play and substantial justice to subject Defendant to suit in
this forum. Defendant has purposefully directed its harmful conduct alleged below at
this forum, and purposefully availed itself of the benefits of Arizona with respect to

the claims alleged herein. A substantial part of the protected intellectual property in


Case 2:17-cv-03955-SPL Document1 Filed 10/26/17 Page 2 of 22

sports and materials. Defendant—a direct and major competitor—has launched a
near identical PROVE IT T-SHIRT line of clothing, after being contacted by Plaintiff
and opening up a dialog with Mr. Calmese in 2010. Defendant’s use of the mark
PROVE IT is identical to Mr. Calmese’s longstanding use of its iconic PROVE IT!®
trademark with taglines for these same types of products and sports. Defendant is
well-aware of the source identifying power of taglines such as “I WILL.” For years,
Defendant has used its own trademark tagline “I WILL” and has aggressively
enforced its rights in that phrase to prevent consumer confusion, dilution, and other
irreparable injury to its trademark rights. Here, Defendant’s use of Mr. Calmese’s
registered PROVE IT!® trademark with “ride-along” taglines likewise threatens the
same injury, if not worse, to Mr. Calmese and its registered and valuable commercial
asset. Defendant’s use of PROVE IT!® infringes Michael Calmese’s long-
established trademark rights, dilutes the distinctiveness of Mr. Calmese’s registered
mark, and constitutes unfair competition.

Under Armour’s has been offering for sale, selling, and promoting clothing, like t-
shirts and other related apparel and in connection with those products (“Disputed
Goods/Services”) in connection with Defendant’s new line of PROVE IT T-Shirts in
violation of Michael D. Calmese’s trademark rights in the registered PROVE IT!®
trademark. As a result of Under Armour’s use of the PROVE IT! mark in connection
with the Disputed Goods/Services, consumers are likely to confuse such

products/services (and/or Michael D. Calmese) with Under Armour.


Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 13 of 22

34. Just some examples of websites that continue to market and sale the offensive
PROVE IT T-shirts produced by Under Armour are listed below which includes
Under Armour’s own online retail stores and locations:

© Under Armour 'Prove It on the Court’ Graphic Tech T-Shirt (Little Boys ...
shop.nordstrom.com/s/under-armour-prove-it-on-the-court-graphic.../4354369
1. Cached
Free shipping and returns on Under Armour 'Prove It on the Court! Graphic Tech T-Shirt
(Little Boys & Big Boys) at Nordstrom.com. On and off the court, he'll stay ...
You visited this page.

e Under Armour Prove It On The Court Graphic-Print T-Shirt, Toddler ...
https://www.macys.com/.../under-armour-prove-it-on-the-court-graphic-print-t-shirt-t...
1. Cached
Shop for Shirts & Tees online at Macys.com. On or off the court, this graphic-print crewneck
from Under Armour is fast-drying and ultra-soft.

e Under Armour Men's Prove It On The Court Graphic Basketball T-Shirt ...
hitps.//www.dickssportinggoods.com/.../under-armour...prove-it.../] 6uarmprvinther'
1. Cached
Shop a wide selection of Under Armour Men's Prove It On The Court Graphic Basketball T-
Shirt at DICK'S Sporting Goods and order online for the finest quality ...

© Under Armour Boys' Prove It In The Woods T-Shirt | DICK'S Sporting ...
https://www.dickssportinggoods.com/.../under-armour...prove-it.../under-armour-boy..
1. Cached
Shop a wide selection of Under Armour Boys' Prove It In The Woods T-Shirt at DICK'S
Sporting Goods and order online for the finest quality products from the top ...

e Under Armour® Boys' 8-20 Short Sleeve Prove It At The Plate Tee
https://www.younkers.com/.../under-armour-boys-8-20-short-sleeve-prove-it-at-the-pl...
1. Cached
Rating: 5 - 3 reviews
The Prove It At The Plate Tee from Under Armour features a material that wicks sweat & dries
really fast. Polyester; Loose: fuller cut for complete comfort ...

e South Carolina Gamecocks Youth Under Armour Prove It On The Field ...
www. garnetandblacktraditions.com/South... Under-Armour-Prove-It.../Product
1. Cached
Let your little Gamecock Prove It On The Field with this Under Armour performance t-shirt!
Crafted with UA's Heat Gear technology and anti-odor fabric, this neon ...

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Case 2:17-cv-03955-SPL Document 1 Filed 10/26/17 Page 16 of 22

38.

39.

40.

41,

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the PROVE IT!® Mark is a clear violation of Under Armour’s own terms. Again see
Exhibit C.

After Plaintiff learned that Defendant was wrongfully using the PROVE IT!® Mark,
Plaintiff contacted Defendant. When Plaintiffs demanded that Defendants cease and
desist use of the PROVE IT!® Mark September 18, 2017, Defendant refused to
acknowledge that its conduct was infringing. Again see Exhibit B.

On information and belief, Under Armour has continued marketing and selling the

offensive PROVE IT T-shirts using the PROVE IT!® Mark up to the present.
INJURY TO MICHAEL D. CALMESE AND THE PUBLIC

Defendant’s unauthorized use of Mr. Calmese’s PROVE IT!® trademark is likely to
cause confusion, mistake, and deception as to the source or origin of Defendant
and/or its products, and is likely to falsely suggest a sponsorship, connection, or
association of Defendant, its products, its services, and/or its commercial activities
with Mr. Calmese.

Defendant’s unauthorized use of Mr. Calmese’s registered PROVE IT!® trademark
and taglines has damaged and irreparably injured and, if permitted to continue, will
further damage and irreparably injure Mr. Calmese and Plaintiff's PROVE IT!®
trademark.

Defendant’s unauthorized use of Mr. Calmese’s registered PROVE IT!® trademark
and taglines has irreparably injured, and, if permitted to persist, will continue to

irreparably injure the public, who has an interest in being free from confusion.

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