–Ben Kwan, Attorney

This week, Under Armour, the Baltimore-based athletic apparel behemoth gave us a new take on the well-pleaded complaint.  Under Armour sued Florida-based I A Nutrition, Inc., for trademark infringement in the U.S. District Court for the District of Maryland.  The complaint alleges infringement based on I A Nutrition’s use of the “Inner Armour” mark for the sale and promotion of dietary supplements for athletes.  The complaint is filled with full color images like this:

An image filed with the Under Armour lawsuit shows Inner Armour marketing where a model wears not only an Inner Armour Sports Bra, but an Under Armour bottom, of all things.
Show, Don’t Tell — Complaint Drafting Edition. Under Armour’s complaint against the company behind “Inner Armour” sport drinks and apparel includes lots of images like this.

Part of the suit alleges that, over time, Inner Armour has encroached on Under Armour’s space by moving into apparel. “Making matters worse,” the lawyers allege, “Inner Armour has featured in its advertising athletes wearing both INNER ARMOUR and UNDER ARMOUR-branded clothing.”  Oops.

To walk into court and adequately state a claim for relief, a party’s complaint has got to allege facts that are “plausible on [their] face” under the Supreme Court’s somewhat recent reconsideration of the half-century-old standard for bringing a lawsuit. For non-lawyers, things were getting a little willy-nilly, so the Court wanted to raise the bar on what it should take to sue.

Since the two Supreme Court cases raising that bar came down (see a Wiki on pleading discussing Twombly and Iqbal), lawyers have been very diligent about beefing up their complaints. And apparently we’re getting creative with where we look for facts that meet the new “plausibility” standard.

While the folks behind Inner Armour likely made a marketing blunder with that photo shoot themselves, the Inner Armour people likely had nothing to do with something else the Under Armour lawyers uncovered for their complaint — a screen grab from Tumblr.

The complaint explains:

“Reflecting the public’s recognition of Under Armour’s innovative and expansive product line, Under Armour has regularly received and continues to receive unsolicited beverage-development proposals—some of which even suggest ‘ARMOUR’ marks, such as the proposal for INNER ARMOUR beverages shown below. Another unsolicited proposal was posted on the Tumblr website on March 5, 2012, suggesting that Under Armour develop nutritional supplements under the mark ‘INNER ARMOUR’.”

Here’s a screen grab of the Tumblr user’s post that was included in the complaint:

A screen grab of the Tumblr post by an Under Armour fan that Under Armour’s lawyers put in their complaint against the people behind “Inner Armour”

How’s that for a fact showing likelihood of confusion? When Under Armour’s customers are posting suggestions on a social media site like Tumblr that Under Armour market itself as “Inner Armour” for products that are a natural progression from its athletic apparel, I wonder what else a lawyer could mine out there to support a claim, let alone some other filing?

I’m dying to tell my own story about a great social media find recently — but the case is ongoing, and it wasn’t a huge “get,” just something that would have made the other side look bad.  Alas — maybe the story will be good for a CLE presentation someday.

In any event — the Under Armour complaint made a great use of charts, tables, full color images, and, as you saw above, a great little bit from social media.  Check out the full complaint here.