Case 1:17-cv-10346-RWZ Document 1 Filed 03/01/17 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

Doppler Labs, Inc.,

Plaintiff, Civil Action No. _______________

v.

Bose Corporation, JURY TRIAL DEMANDED

Defendant.

COMPLAINT FOR TRADEMARK INFRINGEMENT AND

UNFAIR AND DECEPTIVE BUSINESS PRACTICES

INTRODUCTION

1. This action arises from the unfair and deceptive business practices of Defendant

Bose Corporation and its marketing, distribution and sale of in-ear headphones that infringe the

trademark rights of Doppler Labs, Inc.

2. Founded in 2013, Doppler Labs has grown to become a leading innovator in in-

ear technology, specifically in-ear headphones that allow for transforming and mixing of real-

world sound (as Doppler calls it, Real World Sound Control and Layered Listening) that is

implemented through a complex system of hardware and software that did not exist in a mass

consumer product before Doppler Labs introduction of the concept. In 2015, Doppler Labs

launched a Kickstarter campaign to bring this real-world sound control to millions of people who

wanted something more than what an ordinary sound-isolating headphone can provide.

3. In June 2015, Doppler Labs released its Here Active Listening system, including

Here Buds wireless earbuds and a companion mobile application. The Here Active Listening

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system was named one of Time Magazines Best Inventions of 2015, alongside major technology

releases like the Tesla Model X, Google Cardboard and Apple iPad Pro, and in 2016, won both

Best of Show at South by Southwest (SXSW), the most prestigious award given at SXSW, as

well as the Cannes Lions Gold for Product Design. In 2016, Doppler Labs shipped nearly

20,000 Here Active Listening systems.

4. Building upon this success, Doppler Labs embarked on a mission to refine its

technology, and has now launched its next-generation, flagship product the highly acclaimed

Here One listening system with Here Buds wireless earbuds which has been listed as the most

anticipated tech of 2017 by C|NET, and identified by Newsweek as technology to look forward

to in 2017, alongside the Tesla Model 3. Doppler Labs has now raised over $50 million from

some of the worlds preeminent venture capitalists, to bring its innovative technology to market

and has spent years preparing for the launch of its Here One listening system with Here Buds

wireless earbuds.

5. Doppler Labs announced the Here One listening system with Here Buds wireless

earbuds a pair of wireless smart earbuds that combine Doppler Labs proprietary real-world

sound control with the ability to stream music and take phone calls in June 2016. Doppler

Labs Here Buds wireless earbuds are renowned for their ability to control the volume of

ambient sound and their ability to enhance human speech through the use of directional sound

processing and a suite of proprietary Smart Noise Filters. Unlike normal headphones, Here Buds

wireless earbuds also allow users to simultaneously stream audio and blend real world sound so

they can listen to music while interacting with a colleague, or layer live commentary over a game

while still experiencing a cheering crowd. Since its announcement, Doppler Labs has received

over 10,000 orders for the Here One listening system with Here Buds wireless earbuds and has

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established major big box retail relationships to further expand the product rollout in Q2 2017.

Doppler Labs began fulfilling and shipping orders in February 2017.

6. There can be no doubt that Doppler Labs was on Boses radar long before Bose

introduced its infringing Hearphones product. Boses Senior Manager of Idea & Portfolio

Management, Chris Miller, was one of the first backers of Doppler Labs Kickstarter

campaign, pledging $179 on June 2, 2015 the day the Kickstarter campaign went live to be

one of the first to get Doppler Labs Here Active Listening system. Now, on information and

belief, it appears that this was not an investment by Mr. Miller simply to get a new and

differentiated type of audio product than Bose could deliver, for his personal use, but rather an

attempt to gain early access to a competitors technology. Mr. Millers Here Active Listening

system purchase was shipped on February 10, 2016, at which time Mr. Miller purchased a

second Here Active Listening system days later, affording Bose a long period of time to

understand the design and features of the Here Active Listening system, wireless earbuds, and

companion mobile application.

7. Then, with the announcement of Doppler Labs Here One listening system with

Here Buds wireless earbuds in June 2016, Mr. Miller was the 35th person to place a pre-order and

placed his order within minutes of the product announcement. In fact, Mr. Miller contacted

Doppler Labs customer support department on June 28 and June 30, 2016 to explicitly confirm

that his order would be one of the first Here One listening systems with Here Buds wireless

earbuds to ship to pre-order customers. Again, on information and belief, it now appears that

Mr. Miller was doing this to gain early access to a competitors technology.

8. On June 17, 2016, knowing of Dopplers trademarks, Bose intentionally filed a

trademark application for its infringing mark Hearphones, in international class 009. In its

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trademark application, and with knowledge of Dopplers products and marks, Bose told the U.S.

Patent and Trademark Office that it intended to use the Hearphones mark in connection with the

sale of headphones and software for controlling devices that enhance or amplify ambient

sounds. On information and belief, Bose filed this trademark application knowing it intended to

sell a headphone product in competition with Doppler Labs. As of the filing of the present

complaint, the U.S. Patent and Trademark Office has refused registration of Boses Hearphones

mark.

PARTIES

9. Plaintiff Doppler Labs, Inc. is a Delaware Corporation, having its principal place

of business at 182 Shipley Street, San Francisco, CA 94107.

10. Defendant Bose, upon information and belief, is a Delaware corporation, having a

principle place of business at The Mountain, Framingham, MA 01701. Bose advertises, markets,

demonstrates, offers to sell and sells its accused Hearphones product at the Bose Showcase Store

located at the Burlington Mall, 75 Middlesex Turnpike, Burlington, MA 01803, and advertises,

markets, and demonstrates its accused Hearphones product throughout the United States,

including within the Commonwealth of Massachusetts, by way of the hearphones.bose.com

website.

JURISDICTION AND VENUE

11. The Court has jurisdiction over this action pursuant to 28 U.S.C. 1331,

1338, and 1367.

12. This Court has personal jurisdiction over Bose under Massachusetts General

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Law Chapter 223A, 3 because Bose, among other things, transacts business in, and advertises,

markets, demonstrates, offers to sell and sells headphones infringing Doppler Labs trademarks

in the Commonwealth of Massachusetts.

13. Venue is proper in this District pursuant to 28 U.S.C. 1391.

FACTUAL ALLEGATIONS

Doppler Labs Marks

14. Since at least 2015, Doppler Labs has been using the Here Buds mark in

connection with its advertising, marketing, and demonstrations of its Here Buds wireless

earbuds. The Here Buds mark is unique and recognizable, and has gained good will and

reputation as being a source of technologically advanced audio headsets.

15. Doppler Labs has invested tens of millions of dollars in the development and

promotion of the Here Active Listening system, Here One listening system, and Here Buds

wireless earbuds. As a result of Doppler Labs extensive promotion of the Here Active Listening

system, the Here One listening system, the Here Buds wireless earbuds, the Here Buds mark, its

continuous and exclusive use of the unique and distinctive Here Buds mark, and the critical

acclaim that the Here Active Listening system and Here One listening system with Here Buds

wireless earbuds have achieved in the press, the Here Buds mark has become associated with

Doppler Labs and its Here Buds wireless earbuds.

16. Doppler Labs is the owner of U.S. Trademark Application Serial Number

86649741 for the Here Buds mark, in connection with audio headsets for use with mobile phones

and tablet computers, in international class 009. The Here Buds mark was filed on June 3, 2015,

and the U.S. Patent and Trademark Office issued a notice of allowance on March 8, 2016.

Doppler Labs filed a statement of use and specimen with the U.S. Patent and Trademark Office

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on February 18, 2017, and expects the U.S. Patent and Trademark Office to register the Here

Buds mark on the Principal Register shortly.

Boses Unlawful Conduct

17. In 2016, Doppler began a campaign to seek strategic partnerships in which

Doppler Labs would offer its proprietary software technology to third party headphone

manufacturers. On and around August 9, 2016, Doppler Labs sent a letter to several headphone

companies, including Bose, to invite such a discussion. In immediate response, clearly aware of

Doppler Labs products and apparently seeing an opportunity for improper competitive

intelligence gathering, Bose responded that it was impressed with [Dopplers] leadership team

and product vision, and proposed a call to talk about how Bose and Doppler might work

together a sentiment Doppler Labs now surmises was disingenuous. Bose apparently thought

so much of Doppler Labs, it assembled its senior leadership team (Bernice Cramer, General

Manager of Wireless Headphones Business; Kathy Krisch, Director of Emerging Business;

Pelham Norville, Director of Business Development; Chris Miller, Senior Manager of Idea &

Portfolio Management; and Steve Romine, Director of Corporate Development & Chief IP

Counsel) for a discussion with Doppler Labs less than two weeks later, on August 22, 2016. In

advance of that meeting, Bose told Doppler Labs that the purpose of the conversation would be

to investigate future business opportunities between the two companies. Then, following that

August 22nd meeting, Boses Director of Corporate Development & Chief IP Counsel, Steve

Romine, asked Doppler Labs to continue those discussions and for a follow up meeting.

18. That follow-up meeting took place at an in-person meeting in New York City on

September 8, 2016. At this meeting, Doppler Labs disclosed to Bose its proprietary technology,

market approach and positioning, product capabilities, and product road map only after receiving

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an express agreement from Bose that it would not disclose or exploit such confidential

information. On information and belief, based on subsequent events, Bose attended this meeting

not to explore legitimate business, but instead to surreptitiously obtain knowledge about Doppler

Labs business plans and proprietary technology. Had Doppler Labs known of Boses true

purposes, or of Boses intention to sell the competing Hearphones product, it would not have

made these disclosures. An e-mail that Boses Director of Corporate Development & Chief IP

Counsel, Steve Romine, wrote to Mr. Kraft hours after the New York City meeting, stating that

[w]e certainly see opportunity to combine your strengths with ours to create something amazing

for customers, now appears duplicitous.

19. Taking Bose at its word, that it had interest in working with Doppler Labs, on

October 13, 2016, Doppler Labs allowed Bose to demo the not-yet-released Here One listening

system with Here Buds wireless earbuds and its companion mobile application, and debrief

several of Doppler Labs senior management team, lead engineers and product architects about

Doppler Labs proprietary technology, market approach and product road map.

20. On information and belief, Bose engaged in this dialogue with misleading

enthusiasm not backed by actual good faith intent. With this improperly gained information in

hand, Bose appears to have now modified its existing in-ear product line (QC 30 Wireless

Headphones) to include the design and function of Doppler Labs award winning Here Active

Listening system, Here One listening system, Here Buds wireless earbuds, and companion

mobile application. In doing so, on information and belief, Bose mislead Doppler Labs as to the

state of Boses own product development while absorbing Doppler Labs technology, such as,

the specific ways in which Doppler Labs implements its proprietary Real World Sound Control

technology.

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21. A side-by-side comparison between Doppler Labs Here Buds wireless earbuds

and Boses Hearphones product appears below and shows that, in addition to the similarity in

name and functionality, there is striking similarity in design of the products, particularly as

related to the concentric circle hole pattern design (which is non-functional and has even acted

as a Doppler Labs logo):

Doppler Labs 1st Generation Doppler Labs 2nd Generation Bose Hearphones
wireless earbuds wireless earbuds earbuds

22. In addition to learning Doppler Labs technology before introducing its product,

Bose rebranded its modified QC 30 Wireless Headphones under the name Hearphones, knowing

of the Doppler Labs brand. In doing so, Boses Hearphones name imitates and misappropriates

Doppler Labs unique and distinctive Here Buds mark. Doppler Labs never authorized Bose to

use the Here Buds mark, and Bose is fully aware that it has no such authorization from Doppler

Labs. Boses unauthorized use of the Here Buds mark is likely to cause confusion or deceive

consumers into believing that Boses headphones with the infringing Hearphones name are

Doppler Labs products, or are sponsored, licensed, authorized by, or affiliated, connected, or

associated in some way with Doppler Labs. Further exacerbating this problem, Boses infringing

Hearphones product copies the function, operation and aesthetic look of Doppler Labs Here

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Buds wireless earbuds and utilizes remarkably similar marketing language, which will further

cause confusion amongst consumers.

23. On information and belief, Bose had actual knowledge of Doppler Labs rights in

the Here Buds mark before it wrongfully adopted and began using that mark in connection with

its headphones bearing the infringing Hearphones name. On information and belief, Boses

unauthorized use of the Here Buds mark was intentionally designed to trade on the goodwill and

reputation for Real World Sound Control associated with Doppler Labs and Here Buds wireless

earbuds and to confuse or deceive the purchasing public.

24. Doppler Labs has suffered and, unless Boses wrongful conduct is enjoined, will

continue to suffer irreparable harm as well as monetary damage resulting from the infringement

of the Here Buds mark by Bose.

COUNT I
(Federal Unfair Competition, Trademark Infringement,
and False Designation of Origin, 15 U.S.C. 1125)

25. Doppler Labs incorporates the allegations contained in the preceding paragraphs

as if fully set forth herein.

26. Through extensive use of the Here Buds mark, Doppler Labs has developed

extensive goodwill rights in said mark, which goodwill is protected by, inter alia, Section 43(a)

of the Lanham Act, 15 U.S.C. 1125(a).

27. Boses use of the Hearphones name has caused and/or is likely to cause

confusion, deception, and mistake by creating the false and misleading impression that Boses

goods and services are associated or connected with Doppler Labs, or have the sponsorship,

endorsement, or approval of Doppler Labs.

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28. Bose has made false representations, false descriptions, and false designations of

origin of their goods and services in violation of 15 U.S.C. 1125(a), and Boses activities have

caused and, unless enjoined by this court, will continue to cause a likelihood of confusion and

deception of members of the public and, additionally, injury to Doppler Labs goodwill and

reputation as embodied in the Here Buds mark, for which Doppler Labs has no adequate remedy

at law.

29. Boses actions demonstrate an intentional, willful, and malicious intent to trade on

the goodwill associated with the Hearphones mark to the great and irreparable injury to Doppler

Labs.

30. Boses conduct has caused, and is likely to continue causing, substantial injury to

the public and to Doppler Labs, and Doppler Labs is entitled to injunctive relief and to recover

Boses profits, actual damages, enhanced profits and damages, costs, and reasonable attorneys

fees pursuant to 15 U.S.C. 1114, 1116 and 1117.

COUNT II
(Common Law Unfair Competition and Trademark Infringement)

31. Doppler Labs incorporates the allegations contained in the preceding paragraphs

as if fully set forth herein.

32. Doppler Labs has made exclusive use of the Here Buds mark in connection with

audio headsets for use with mobile phones and tablet computers.

33. The Here Buds mark is unique and distinctive.

34. Both Doppler Labs and Bose are engaged in trade and commerce throughout the

United States, and in the Commonwealth of Massachusetts.

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35. Boses use of the Hearphones name has caused and is likely to cause confusion,

deception, and mistake by creating the false and misleading impression that Boses goods and

services have the sponsorship, endorsement, or approval of Doppler Labs.

36. Bose, by virtue of its acts as alleged above, has willfully, knowingly, maliciously

and intentionally engaged in acts of unfair competition under the common law of the

Commonwealth of Massachusetts.

37. Boses conduct has caused, and if not enjoined, will continue to cause irreparable

damage to Doppler Labs in a manner that cannot be calculated or compensated in money

damages. Doppler Labs has no adequate remedy at law.

38. As a result of Boses acts, Doppler Labs has been damaged in an amount not as

yet determined or ascertainable. At a minimum, however, Doppler Labs is entitled to injunctive

relief, to an accounting of Boses profits, to damages, and to costs.

39. Boses conduct as described above has been willful, wanton, reckless, and in

violation of the rights of Doppler Labs. In light of the deliberate and malicious use of the

confusingly similar Hearphones name, and the need to deter Bose from similar conduct in the

future, Doppler Labs additionally is entitled to punitive damages.

COUNT III
(Violation of M.G.L. c. 93A)

40. Doppler Labs incorporates the allegations contained in the preceding paragraphs

as if fully set forth herein.

41. At all times relevant hereto, Bose was engaged in trade or commerce within the

meaning of M.G.L. c. 93A, 2, 9.

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42. Boses conduct, as described above, including its improper access to Doppler

Labs proprietary information, constitutes unfair and deceptive acts or practices within the

meaning of M.G.L. c. 93A, 2, 9.

43. Bose committed its unfair and deceptive acts and practices knowingly and

willfully.

44. Boses unfair and deceptive conduct occurred primarily and substantially within

the Commonwealth of Massachusetts.

45. As a result of Boses unfair and deceptive conduct, Doppler Labs has suffered,

and continue to suffer, injury.

REQUEST FOR RELIEF

WHEREFORE, Doppler Labs respectfully requests that the Court enter a judgment:

A. Bose, by its adoption and usage of the Hearphones name, has infringed

Doppler Labs trademark rights in the Here Buds mark and intentionally and

willfully committed unfair competition in violation of 15 U.S.C. 1125(a).

B. Bose, by its adoption and usage of the Hearphones name, has infringed

Doppler Labs common law rights to the Here Buds mark and has committed

common law trademark infringement.

C. Bose, by reason of its actual knowledge of Doppler Labs prior intent to

use, actual use of, and appropriation of the Here Buds mark, violated Doppler

Labs trademark rights knowingly and willfully.

D. Bose, by its activities that have occurred primarily and substantially in

Massachusetts, has engaged in unfair and deceptive acts and practices knowingly

and willfully in violation of M.G.L. ch. 93A.

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E. Bose, its officers, agents, servants, employees, attorneys, parents,

subsidiaries, affiliates and related companies and all persons acting for, with, by,

through or under them, and each of them, be temporarily enjoined from, and

preliminarily and thereafter permanently enjoined and restrained from:

(i) using in any manner the mark Hearphones, or any other trade

name, trademark, trade dress or service mark that is confusingly similar to

the Here Buds mark, in connection with the sale, offering for sale,

distribution, marketing, advertising or promotion of goods or services;

(ii) using any trademark, trade dress, service mark, name, logo, design

or source designation of any kind on or in connection with Boses sale,

offering for sale, distribution, marketing, advertising or promotion of

goods or services that is likely to cause confusion, mistake, deception, or

public misunderstanding that such goods or services are sponsored or

authorized by Doppler Labs, or are in any way connected or related to

Doppler Labs; and

(iii) engaging in any other activity constituting an infringement of

Doppler Labs trademark rights or otherwise unfairly competing with

Doppler Labs in any way.

F. Bose be directed to send and make public, within 30 days of the granting

of this Order, curative statements approved in advance by Doppler Labs,

including a formal retraction by means of a national e-mail campaign and a direct

mailing to all of Boses customers, and a full-page advertisement in the

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appropriate publications, or other corrective action approved by Doppler Labs, to

ensure that consumers are not further mislead by Boses claims.

G. Bose be directed to file with the Court and serve upon Doppler Labs

counsel within thirty (30) days after entry of Judgment a report in writing under

oath setting forth in detail the manner and form in which Bose complied with the

requirements of the Injunction and Order.

H. Bose be required to account for and pay over to Doppler Labs all profits

realized by Bose by reason of its unlawful acts alleged herein, in an amount to be

proven at trial.

I. Doppler Labs be awarded all damages caused by the acts forming the basis

of this Complaint.

J. Based on Boses knowing and intentional use of the confusingly similar

Hearphones name, the damages award be trebled and the award of Bose s profits

be enhanced as provided for by 15 U.S.C. 1117(a).

K. Bose be required to pay to Doppler Labs all of its costs, disbursements,

and reasonable attorneys fees that Doppler Labs have incurred and will incur in

this action pursuant to 15 U.S.C. 1117(a).

L. Doppler Labs be awarded damages in an amount sufficient to cover the

damages caused to it by Bose s unlawful conduct, and that those damages be

trebled pursuant to M.G.L. ch. 93A.

M. Based on Boses willful and deliberate infringement of the Here Buds

mark, and to deter such conduct in the future, Doppler Labs be awarded punitive

damages.

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N. Doppler Labs be awarded such other and further relief as the Court may

deem appropriate to prevent the infringement, disparagement, or dilution of the

Here Buds mark, and to prevent further and/or additional acts of unfair

competition by Bose.

O. Doppler Labs be awarded prejudgment interest.

P. Doppler Labs be awarded attorneys fees and costs.

Q. Doppler Labs be awarded such other relief as the court deems proper.

JURY DEMAND

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

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Dated: March 1, 2017 Respectfully submitted,

PROSKAUER ROSE LLP

s/ Steven M. Bauer
Steven M. Bauer (BBO No. 542531)
John M. Kitchura, Jr. (BBO No. 681542)
PROSKAUER ROSE LLP
One International Place
Boston, Massachusetts 02110-2600
(617) 526-9600 telephone
(617) 526-9899 facsimile
sbauer@proskauer.com
jkitchura@proskauer.com

Adam Siegartel*
PROSKAUER ROSE LLP
Eleven Times Square
New York, NY 10036-8299
(212) 969-3000 telephone
(212) 969-2900 facsimile
asiegartel@proskauer.com

Attorneys for Doppler Labs, Inc.

* Motion for admission pro hac vice forthcoming

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