IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) ) ) Plaintiff, ) ) vs. ) ) SOFTLAYER TECHNOLOGIES, INC., ) THEPLANET.

COM INTERNET ) SERVICES, INC. and ) SAI WORKS FITNESS EQUIPMENT ) ) Defendants. ) ____________________________________) CYBEX INTERNATIONAL, INC.

CIVIL ACTION NO.12-

COMPLAINT FOR TRADEMARK INFRINGEMENT AND VIOLATION OF THE LANHAM ACT Plaintiff Cybex International, Inc. (Cybex) by its attorneys, files this Complaint against defendants, alleging as follows: JURISDICTION AND VENUE 1. This action arises under the Lanham Trademark Act 15 U.S.C. 1051 et seq.

(the Lanham Act). Accordingly, this Court has federal question jurisdiction over the subject matter of this action pursuant to 15 U.S.C. 1121, and 28 U.S.C. 1338(a) and (b). 2. Venue in this district is proper under 28 U.S.C. 1391. PARTIES 3. Plaintiff is a corporation with its principal place of business in Medway,

Massachusetts. For at least the past decade, in conjunction with the sale and advertising of certain of Plaintiffs proprietary machines, Plaintiff has used the unique and fanciful visual design,

structure and appearance of Plaintiffs ARC/ARC TRAINER and FT-360/FUNCTIONAL TRAINER exercise machines (hereinafter collectively the Proprietary Designs) in connection with the sale in interstate commerce of said machines. Over the same period of time Plaintiff has also continuously used the marks ARC, THE ARC, ARC TRAINER and FUNCTIONAL TRAINER (hereinafter the Marks) in conjunction with the sale, advertising and promotion of said exercise machines. (hereinafter collectively the Proprietary Marks) . 4. Plaintiff is the owner of the following validly issued U.S. Trademark registrations

and U.S. Patents that cover Plaintiffs proprietary ARC/ARC TRAINER and FT360/FUNCTIONAL TRAINER machines and mark: (a) United States Trademark Registration No. 3,347,175 for the mark ARC TRAINER. (b) United States Patent Nos. 8,062,185 and 7,824,313 and 7,568,999 and 7,279,955 describing, depicting and claiming Plaintiffs proprietary ARC/ARC TRAINER. (c) United States Patent Nos. 6,488,612 and 7,179,209 and 7,503,882 describe, depict and claim Plaintiffs proprietary FT-360/FUNCTIONAL TRAINER. (the above-listed patents hereinafter collectively referred to as the Patents-in-Suit). 5. Defendants, Softlayer, Inc. and its subsidiary or affiliate, ThePanet.com Internet

Services, Inc., are on information and belief, corporations registered to do business in Massachusetts, are doing business generally in this District and specifically in this District by hosting and publishing the defendant manufacturers, Sai Works Fitness And Equipment., infringing website, www.saiworks.in. Said infringing website is published, displayed and

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purposely made accessible in Massachusetts and contains infringing occurrences and depictions of Plaintiffs proprietary Marks and Proprietary Designs and proactively offers equipment for sale in Massachusetts that infringes the Patents-In-Suit. 6. Defendant, Sai Works Fitness Equipment. (SaiWorks) is, on information and

belief, a corporation actively conducting business and advertising, promoting and/or providing its infringing products in Massachusetts via its infringing website. Sai Works purposely created or caused to be created and publishes and makes its infringing website accessible over the internet in Massachusetts under the address www.saiworks.in. 7. The infringing website displays virtually identical copies of Plaintiffs infringing

machines called the ARC MASTER and FUNCTIONAL TRAINER. The infringing machines and photos displayed on defendants website incorporate virtually identical copies of Plaintiffs Proprietary Designs. BACKGROUND OF THE ACTION 8. For over at least a decade, Plaintiff is and has been selling, promoting and

manufacturing its Proprietary ARC/ARC TRAINER and FT-360/FUNCTIONAL TRAINER machines. During this entire period, Plaintiff has continuously and extensively used its Proprietary Designs and Marks in connection with the sale, advertising, promotion and provision of its aforesaid machines. 9. During this same period of time, Plaintiff has continuously, consistently and at

great expense used the Proprietary Designs and Marks in advertising and promotional materials, display banners posted at trade shows, on flyers and brochures, in magazine advertisements and on Plaintiffs own website.

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10.

During this same period of time, Plaintiff has invested hundreds of thousands of

dollars in the design, development, advertising and promotion of its Proprietary Designs and Marks as a brand and source of high quality, new and innovative exercise machines. Plaintiff annually realizes substantial revenues from the sale and provision of its branded and patented exercise machines. 11. Plaintiffs Proprietary Designs and Marks have achieved and will continue to

achieve wide renown among actual and prospective purchasers including health clubs, dealers and consumers. The Proprietary Designs and Marks have been used in interstate commerce on and for the purpose of identifying, among other things, Plaintiff as the source of such exercise equipment and the quality of products that Plaintiff provides. 12. As a result of the foregoing, Plaintiffs Proprietary Designs and Marks are famous

and have developed and now possess secondary and distinctive meaning to consumers and users of Plaintiffs exercise machines provided under the Proprietary Designs and Marks.

DEFENDANTS UNLAWFUL CONDUCT 13. The Defendant, Sai Works, has adopted and is using the Proprietary Designs and

Marks alone or in conjunction with other words in promotion and/or advertising of essentially identical exercise machines that compete directly with Plaintiffs exercise machines in the identical customer base or market to which Defendants exercise machines are advertised, promoted, sold or provided. Sai Works is presently using Plaintiffs Proprietary Designs and Marks on and in connection with the website www.saiworks.in. Exhibit A hereto illustrates examples of the publication and advertising of said infringing exercise machines on the infringing website. In addition, defendant Sai Works, is on information and belief using the Proprietary Marks in verbal

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answering of their listed business phones, on letterhead and in print advertising and promotional materials. 14. Those exercise machines displayed on the infringing website that incorporate or

are identified by the Proprietary Designs and Marks, including at least the machines illustrated in Exhibit A, infringe at least claim 1 of each of the above referenced Patents in Suit. 15. The defendants Softlayer Technologies, Inc. and ThePlanet.com Internet Services,

Inc. are actively assisting defendant Sai Works in advertising and promoting the infringing exercise machines and in operating, hosting, maintaining, publishing and enabling the use of the Proprietary Designs and Marks. 16. Further, on information and belief, Sai Works intends to expand its use of the

Proprietary Designs and Marks for use on labels, tags, packaging, advertising, letterhead, on business cards, on signage and in verbal answering of telephone inquiries in connection with its identical or nearly identical exercise machines that use the Proprietary Designs and Marks. 17. Prior to adopting and using the Proprietary Designs and Marks, Sai Works had

actual knowledge of Plaintiffs prior usage of the Proprietary Designs and Marks and Plaintiffs Patents-in-Suit. 18. The aforesaid acts by all of the defendants are causing and are likely to continue

causing the purchasing public to believe that the infringing exercise machines is/are somehow connected or affiliated with Plaintiff, or that the infringing machines are authorized, sponsored or approved by Plaintiff such that the infringing machines are subject to the same high quality standards as Plaintiffs machines are made despite the fact that this is not true. 19. The aforesaid unlawful and willful adoption and use of the Proprietary Designs

and Marks by Defendants constitutes an infringement of Plaintiffs trademarks and trade dress and

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a false designation of the source of origin of the Defendants products and falsely describes and represents such machines. The use, publication and maintenance by all of the defendants of the Plaintiffs Proprietary Designs and Marks on, in or in connection with the offending website also constitutes an attempt to palm off and appropriate to themselves Plaintiffs exclusive rights in the Proprietary Designs and Marks. Such acts will cause dilution of Plaintiffs marks. 20. Upon information and belief, the defendants have and will continue to engage in

such unauthorized activities in this State and elsewhere in interstate commerce and are likely to continue such activities, to the great injury of Plaintiff. 21. Plaintiff has no adequate remedy at law and will suffer irreparable harm and

damage as a result of the aforesaid acts, in an amount presently incalculable. FIRST CAUSE OF ACTION (Registered Trademark Infringement 15 U.S.C Sec. 1114(a)) 22. 23. Plaintiff repeats and realleges each allegation set forth in paragraphs 1-21 above. Defendants aforesaid conduct constitutes willful infringement of Plaintiffs

Registered Mark in violation of 15 U.S.C. 1114(a). Plaintiff is suffering and will continue to suffer great harm and monetary damage in an amount as yet undetermined but believed to be in excess of $2,000,000 for the upcoming year, unless and until Defendants are enjoined from continuing to engage in their unlawful conduct. SECOND CAUSE OF ACTION (Violation of the Lanham Act, 15 U.S.C Sec. 1125(a)) 24. 25. Plaintiff repeats and realleges each allegation set forth in paragraphs 1-23 above. Defendants aforesaid conduct constitutes willful infringement of Plaintiffs

Proprietary Designs and Marks in violation of Section 43(a) of the Lanham Act, 15 U.S.C.

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1125(a). Plaintiff is suffering and will continue to suffer great harm and monetary damage in an amount as yet undetermined but believed to be in excess of $2,000,000 for the upcoming year, unless and until Defendants are enjoined from continuing to engage in their unlawful conduct. THIRD CAUSE OF ACTION (Common Law Trade Mark Infringement and Unfair Competition) 26. 27. Plaintiff repeats and realleges each allegation set forth in paragraphs 1-25 above. Defendants aforesaid conduct constitutes a willful infringement of Plaintiffs

common law trademark rights in the Proprietary Designs and Marks and a violation of the Federal and State Common Law of Unfair Competition. Plaintiff is suffering and will continue to suffer great harm and monetary damage in an amount as yet undetermined but believed to be in excess of $2,000,000 for the upcoming year, unless and until Defendants are enjoined from continuing to engage in their unlawful conduct. FOURTH CAUSE OF ACTION (Trademark Dilution under M.G.L.A. Ch. 110H 13) 28. 29. Plaintiff repeats and realleges each allegation set forth in paragraphs 1-27 above. Defendants aforesaid unlawful conduct is diluting and will continue to dilute the

strength, distinctiveness and secondary meaning in and of Plaintiffs Proprietary Designs and Marks. Such dilution constitutes a violation of M.G.L.A. Ch. 110H Section 13, which provides injunctive relief notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services. Plaintiff is suffering and will continue to suffer great harm and monetary damage in an amount as yet undetermined but believed to be in excess of $2,000,000 for the upcoming year, unless and until Defendants are enjoined from continuing to engage in their unlawful conduct.

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FIFTH CAUSE OF ACTION (Trademark Dilution under the common law) 30. 31. Plaintiff repeats and realleges each allegation set forth in paragraphs 1-29 above. Defendants aforesaid unlawful conduct is diluting and will continue to dilute the

strength, distinctiveness and secondary meaning in and of Plaintiffs Proprietary Designs and Marks. Such dilution constitutes a violation of the common law of the United States and of the Commonwealth of Massachusetts. Plaintiff is suffering and will continue to suffer great harm and monetary damage in an amount as yet undetermined but believed to be in excess of $2,000,000 for the upcoming year, unless and until Defendants are enjoined from continuing to engage in their unlawful conduct. SIXTH CAUSE OF ACTION (Patent Infringement, 35 U.S.C. Sec. 271 et seq.) 32. 33. Plaintiff repeats and realleges each allegation set forth in paragraphs 1-31 above. Defendants aforesaid unlawful conduct in promoting and advertising for sale the

infringing exercise machines infringes the Patents-in-Suit and constitutes a violation of 35 U.S.C. Secs. 271 et. seq. 34. 35. Defendants aforesaid patent infringement is, and has been, willful and knowing. Plaintiff has suffered immediate and irreparable harm and monetary damage and

will continue to suffer such irreparable harm and damage as a result of Defendants willful patent infringement. EXCEPTIONAL CASE 36. Because of Defendants willful infringement, this is an exceptional case under 35

U.S.C. Sec. 285 and Plaintiff is entitled to attorneys fees incurred in connection with prosecuting this action. -8-

REQUEST FOR JURY TRIAL Plaintiff requests a trial by jury on all issues so triable. PRAYER FOR RELIEF WHEREFORE, Plaintiff. seeks relief against Defendants and all those in active concert and privity with Defendants, as follows: 1. That Defendant and all those in active concert and privity with Defendant

(individually and collectively), their partners, agents, servants, employees, officers, attorneys, successors and assigns, be temporarily and preliminarily enjoined in this and all other judicial districts in the United States, during the course of this litigation and permanently from: (a) providing, advertising, publishing, promoting, offering for sale or holding

for sale any product or service in association or connection with the Proprietary Designs and Marks or any colorable variation or imitation thereof; (b) representing to any member of the public that any service or product that

is advertised, sold distributed, leased, rented, repaired, managed or held for sale by them is sponsored or authorized by Plaintiff in this district or in any other district in which Plaintiff seeks to enforce this Courts injunction order. 2. That this Court enter a preliminary and permanent injunction incorporating the

terms of the Proposed order of Preliminary Injunction accompanying Plaintiffs Motion for Preliminary Injunction that includes, among other things, an order that orders the Defendants to discontinue use of the Proprietary Designs and Marks in any manner including use on the display or content of any website and/or in metatags or metadata thereof.

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3.

That this Court order the Defendants to deliver up to the Court and/or to Plaintiff

all written, electronic data and printed materials bearing the Proprietary Designs and Marks or any colorable imitation or variation thereof for destruction. 4. That Defendants pay to Plaintiff damages in an amount to be determined and a

doubling and/or trebling thereof. 5. That Plaintiff be awarded its costs, attorneys fees and such other and further relief

as the Court deems just and proper. Dated: May 11, 2012 Respectfully submitted, CYBEX INTERNATIONAL, INC. By Its Attorneys

/s/ M. Lawrence Oliverio____ M. Lawrence Oliverio, BBO #378755 Rissman Hendricks & Oliverio LLP Suite 2101, 100 Cambridge Street Boston, MA 02114 617-367-4600 617-367-4656 loliverio@rhoiplaw.com

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