Alleging that Icon has allowed retailers to continue to sell its product called Crossbow in violation of a June 2004 preliminary court injunction against it, Nautilus has asked the court to hold Icon in contempt of court.
In response, Icon filed a proposed court order on Dec. 28 requesting the motion to be heard Jan. 7 be changed to Jan. 21 to allow it more time to prepare its opposition. The U.S. District Court, Western District of Washington, Seattle, has not yet issued an order on the request for contempt or the hearing date as a part of the ongoing patent and trademark infringement cases filed in December 2002.
According to court documents filed Dec. 16, Nautilus claims "Icon is in contempt because it continued to use the trademark Crossbow in violation of the court's injunction against such use by, among other things, offering for sale resilient rod exercise machines prominently displaying the name 'Crossbow.'"
Also on Dec. 16 as backup for its contempt motion, Nautilus filed four statements from employees or legal staff summarizing visits to various retailers in different parts of the country where they found for sale the Crossbow product or were told more was available. For example, one visit was in October to various stores in Victorville, Pasadena and Costa Mesa, Calif., by an employee of the law firm that represents Nautilus. He declared he saw machines on the floor, was told there were more available in stock, or -- apparently upon expressing interest in a "Crossbow" when he saw none -- was told although there was not one on the floor that the store could get some from an off-site warehouse.
The preliminary injunction issued by the court six months ago meant that Icon Fitness had to immediately stop using the trademark "Crossbow." In addition, Icon and its retailers were barred from marketing, advertising or selling any equipment with that name. The order will remain in effect until the conclusion of the case, which began in December 2002, or of the trial. The injunction was issued by the U.S. Court of Appeals for the Federal Circuit Court, which was responding to an appeal filed in July 2003 by Nautilus when it initially lost its injunction. Preliminary injunctions are often issued by courts when there seems to be some likelihood of success of a claim, in this case trademark infringement of Nautilus' Bowflex name. The company has claimed the Crossbow name is too similar to the Bowflex name and will confuse consumers. The Bowflex patent expired April 27, 2004.
As a part of its request to hold Icon in contempt of court, Nautilus said in its court filings that it seeks sanctions, including "an accounting and disgorgement of Icon's profits associated with its violation of the preliminary injunction, along with Nautilus' attorneys' fees and costs for bringing this motion."
A pre-trial Markman hearing was held in September 2004, but the judge has not yet issued a ruling. The court has set a jury trial date for April 2005.