UATP v. Kangaroo - Brief ISO PI

Case 4:21-cv-02478 Document 67 Filed on 06/09/22 in TXSD Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UATP IP, LLC, a Texas Limited Liability

§
Company, and UATP MANAGEMENT, §
LLC, a Texas Limited Liability Company,
§
§
Plaintiffs, §
§
vs. § CIVIL ACTION NO. 4:21-cv-02478
§
KANGAROO, LLC, a Texas Limited §
Liability Company, AIR §
ENTERTAINMENT GROUP, LLC, §
MINH TANG, HAI CHANH QUACH, §
DAN TRINH, RAYMOND HUNG, §
and EDGAR ALEJANDRO GUERRERO, §
Jointly and Severally, §
§
Defendants. §
VERIFIED MEMORANDUM OF LAW IN SUPPORT OF

PLAINTIFFS’ REQUEST FOR PRELIMINARY INJUNCTION
TO THE HONORABLE LYNN N. HUGHES:
Plaintiffs UATP IP, LLC and UATP Management, LLC seek a preliminary injunction
against Defendants Air Entertainment Group, LLC (“Franchisee”) and Kangaroo, LLC to
prevent further damage to their goodwill, loss of reputation, and consumer confusion caused
by Defendants’ infringement of Plaintiffs’ intellectual property and Trade Dress.
BACKGROUND FACTS
UATP IP owns and manages certain intellectual property used in an indoor trampoline
and adventure park franchise business, Urban Air. All intellectual property owned by UATP
IP is exclusively licensed to UATP Management, its parent company, to be used for the benefit
VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 1 OF 22

REQUEST FOR PRELIMINARY INJUNCTION
of Urban Air Adventure Parks owned or franchised by UATP Management under written
franchise agreements.
In May 2016, Franchisee, which is owned by Defendants Dan Trinh, Hai Chanh
Quach, and Raymond Hung and managed by Defendant Alan Trinh, executed a franchise
agreement with UATP Management (“Franchise Agreement”). Under the Franchise
Agreement, UATP issued to Franchisee a non-transferable license to use UATP’s intellectual
property, including patents, copyrights, trademarks, and Trade Dress. Franchisee’s Urban Air
franchise was located at 6310 McPherson Road, Laredo, Texas (“McPherson Property”),
which Defendant Golden Star Group, Ltd. (“GSG”) 1 owned. 2 Franchisee subsequently
abandoned the lease premises and defaulted under the Lease.
On January 20, 2021, UATP Management terminated the Franchise Agreement thereby
terminating and revoking any license or right to use UATP’s intellectual property and
confidential and proprietary information. UATP Management also reminded Franchisee of its
obligation to debrand. Yet, the indoor trampoline and adventure park owned and operated by
Luu, Kangaroo, and Tang is virtually identical to its predecessor, Urban Air, formerly operated
by Franchisee, which has caused actual customer confusion. Ex. 2. 3 Rather than make any
meaningful interior changes to differentiate itself from Urban Air, Kangaroo simply covered
up – with glue and staples – all Urban Air branding. The look, feel, and experience of
Kangaroo is indistinguishable from Urban Air. To this day, Luu, Kangaroo, and/or Tang
continue to operate an indoor trampoline and adventure park that (1) infringes on Plaintiffs’
1 GSG and Franchise share common ownership – Defendants Dan, Hung, and Quach are owners of both.
2 GSG, as lessor, and Franchisee, as lessee, entered into a lease agreement for a five-year term, commencing on November
15, 2018 and expiring on November 15, 2023 (“Lease”).
3 This is also Exhibit F-2 to Plaintiffs’ Second Amended Complaint.

(i) registered patent and trademark; (ii) unregistered Trade Dress; and (iii) common law
copyrights and (2) unlawfully utilizes Plaintiffs’ proprietary and confidential information
obtained by improper means.
ARGUMENT
This Court should issue a preliminary injunction if Plaintiffs show:
(1) a substantial likelihood of success on the merits, (2) a substantial threat

of irreparable injury if the injunction is not issued, (3) that the threatened
injury if the injunction is denied outweighs any harm that will result if the
injunction is granted, and (4) that the grant of an injunction will not disserve
the public interest.
Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006); see also Paulsson Geophysical Servs. v. Sigmar,
529 F.3d 303, 309 (5th Cir. 2008). Evidence in the record and testimonial evidence to be
offered at the hearing on Plaintiffs’ request for preliminary injunction satisfies each of these
requirements. The Court should therefore issue the preliminary injunction enjoining AEG and
Kangaroo as detailed herein.
I. There is a substantial likelihood that Plaintiffs will succeed on the merits of

their claims.
Plaintiffs have asserted ten claims against Defendants, three of which are relevant to
their request for a preliminary injunction – (1) Trade Dress Infringement; (2) Patent
Infringement; and (3) Copyright Infringement. “The court need only consider whether one of
[plaintiff’s] claims ... has a substantial likelihood of success.” TGI Friday’s, Inc. v. Great Nw.
Rests., Inc., 652 F. Supp. 2d 763, 767 (N.D. Tex. 2009) (explaining that a likelihood of success
on a single claim that warrants injunctive relief is sufficient to support a preliminary
injunction). Thus, if Plaintiffs establish a substantial likelihood of success on the merits for
any of their claims, the Court should issue a preliminary injunction.

Trade Dress Infringement
To prevail on a trade dress infringement claim under the Lanham Act, Plaintiffs must
prove three elements: (1) the trade dress is inherently distinctive or has acquired a secondary
meaning; (2) their trade dress is primarily nonfunctional and therefore protectable; and (3)
there is a likelihood that Defendants’ trade dress will lead to customer confusion. Fantastic
Sams Franchise Corp. v. Mosley, 2016 LEXIS 177941, at *20 (S.D. Tex. 2016) (Miller, J.) (citing
Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 536 (5th Cir. 1998)).
“Trade dress refers to the total image and overall appearance of a product and may
include features such as the size, shape, color, color combinations, textures, graphics, and
design.” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764–65 n. 1 (1992); Sparrow Bars &
Events, 2019 LEXIS 61515 (E.D. Tex. Apr. 10, 2019) (quoting Amazing Spaces, Inc. v. Metro Mini
Storage, 608 F.3d 225, 251 (5th Cir. 2010)). It encompasses the design and appearance of the
product together with all the elements making up the overall image that serves to identify the
product presented to the consumer. Two Pesos, 505 U.S. at 763. The existence of non-distinctive
elements does not eliminate the possibility of inherent distinctiveness in the trade dress as a
whole. Id. The purpose of trade dress protection is to secure the goodwill of the subject
business and to protect the ability of consumers in the relevant market to distinguish among
competing products. Id.

Plaintiffs’ trade dress includes the neon orange, yellow, Urban Air Lime Green, and
Cosmic Dust Blue color scheme prevalent throughout Urban Air franchises, 4 Attractions 5 and
equipment and the layout and placement of the same, signage (content, lettering, and coloring),
white ball pit, redundancy trampolines, no hold netting, configuration of the safety harnesses
and attachment of same to the equipment, and one way directional tracking of the zip coaster
(“Trade Dress”). Because Plaintiffs’ Trade Dress is inherently distinctive (or has otherwise
acquired secondary meaning) and nonfunctional and actual customer confusion exists,
Plaintiffs can show a likelihood of success on the merits of their trade dress infringement
claim.
a. Plaintiffs’ trade dress is inherently distinctive.
While Plaintiffs do not possess a federal registration for their Trade Dress, it still
warrants protection. Unregistered trade dress is protected under the Lanham Act if the trade
dress is distinctive and nonfunctional. Test Masters Educ. Servs., Inc. v. State Farm Lloyds, 791 F.3d
561, 565 (5th Cir. 2015). Showing distinctiveness may be achieved by proving that the intrinsic
nature of the trade dress serves to identify a particular source, meaning the trade dress is
inherently distinctive, or by demonstrating that the mark has acquired secondary meaning,
meaning that the primary source of the trade dress to the relevant consuming public is to
identify the source of the product. 15 U.S.C. §§ 1052, 1127; AMID, Inc. v. Medic Alert Found.
4 See Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 703 (5th Cir. Unit A 1981) (protecting a
"combination of particular hues of [plaintiff's] colors, arranged in certain geometric designs, presented in conjunction with
a particular style of printing . . . would leave innumerable other combinations of the same colors . . ."), cert. denied, 457 U.S.
1126, 102 S. Ct. 2947, 73 L. Ed. 2d 1342 (1982).
5 These attractions include Adventure Hub, Apex Trampolines, the ball pi and the use of white balls therein, redundancy
trampolinest, Battle Beam, Dodgeball Arena, Drop Zone, Kids Zone, Pro Zone, Runway/Tumble Track, Sky Rider,
Stairway to Heaven, Warrior Course, climbing walls designed by Urban Air’s founder (fireman wall, tetris wall, American
Ninja warrior-type wall, traditional wall) (collectively the “Attractions”).

U.S., Inc., 241 F. Supp. 3d 788, 801-02 (S.D. Tex. 2017) (Rosenthal, J.) (“Marks whose intrinsic
nature serves to identify their particular source are inherently distinctive.”). With trade dress,
the question is “whether the combination of features creates a distinctive visual impression,
identifying the source of the product.” Pebble Beach Co. v. Tour 18 I, 155 F.3d 526, 536 (5th Cir.
1998) (citation omitted).
The unique combination of Plaintiffs’ (protectable) Trade Dress creates the look, feel,
and experience consumers associate with Urban Air. While certain individual elements of
Plaintiffs’ Trade Dress standing alone may not be inherently distinctive, the combination of
those elements, taken together, create a distinctive visual impression worthy of protection. See
Taco Cabana Int’l. v. Two Pesos, Inc., 932 F.2d 1113, 1118 (5th Cir. 1991) (“The instructions
properly cautioned the jury not to focus on isolated components in determining the
protectability of Taco Cabana’s trade dress, but rather to consider the overall combination of
elements.”), aff’d, 505 U.S. 763 (1992); Assoc. of Co-operative Members, Inc. v. Farmland Indus., Inc.,
684 F.2d 1134, 1140 (5th Cir. 1982), cert. denied, 460 U.S. 1038, 103 S. Ct. 1428, 75 L. Ed. 2d
788 (1983) (“The whole, in trademark law, is often greater than the sum of its parts.”).
Kangaroo Fun Zone is a carbon copy of its predecessor, Urban Air. Other than Kangaroo’s
minimal efforts to cover up all Urban Air branding, Kangaroo has done nothing to
differentiate itself from Urban Air. See Ex. 8. The color scheme, equipment, Attractions,
activities, layout, look, feel, and experience remain the same. While it may be permissible for
Kangaroo to enter the adventure park market, it cannot copy Urban Air’s distinctive
combination of layout, design features, and entertainment. Taco Cabana Int’l., 932 F.2d at 1118,

1120 (“Again, competitors may use individual elements in Taco Cabana’s trade dress, but the
law protects the distinctive totality.”).
b. Plaintiffs’ Trade Dress has acquired secondary meaning.
Even if the Court determines Plaintiffs’ Trade Dress is not inherently distinctive,
Plaintiffs can show secondary meaning. “To develop secondary meaning, a mark must denote
to the consumer a single thing coming from a single source.” Nola Spice Designs, L.L.C. v. Haydel
Enters., Inc., 783 F.3d 527, 543 (5th Cir. 2015) (internal quotations omitted). Secondary
meaning occurs when, in the minds of the public, the primary significance of a mark is to
identify the source of the product rather than the product itself. Test Masters Educ. Servs., Inc.
v. Robin Singh Educ. Servs., Inc., 799 F.3d 437, 445 (5th Cir. 2015) (citation omitted). A mark has
acquired secondary meaning when it has come through use to be uniquely associated with a
specific source. Id. A court uses the following seven-factor test to determine whether a mark
has acquired secondary meaning:
(1) length and manner of use of the mark or trade dress; (2) volume of sales;
(3) amount and manner of advertising; (4) nature of use of the mark or trade
dress in newspapers and magazines; (5) consumer-survey evidence; (6) direct
consumer testimony; and (7) the defendant’s intent in copying the mark.
Id. These factors in combination may show that consumers consider a mark to be an indicator
of source even if each factor alone would not prove secondary meaning. Id.
An analysis of these factors shows that Plaintiffs’ Trade Dress has acquired secondary
meaning. First, Plaintiffs began using their Trade Dress in 2011, long before Kangaroo was
even incorporated. Plaintiffs have been requiring franchisees to use these specific layouts and
placement of equipment and Attractions as well as other features of their Trade Dress since

the first Urban Air franchise opened in 2011. Plaintiffs use of their Trade Dress has continued
uninterrupted since Urban Air’s inception.
Second, there are more than 290 Urban Air parks currently open or under development
in 35 states and two countries. The average park sales volume is $2.8 million annually. Plaintiffs
focus significant efforts and spend millions of dollars annually on marketing their Urban Air
franchise online, through social media (Facebook, Twitter, Instagram, and others), via email,
and through various other digital channels. Urban Air’s marketing efforts include pictures of,
for example, the neon orange, yellow, Urban Air Lime Green, and Cosmic Dust Blue color
scheme, their banners, mascot, equipment, proprietary lighting, and Attractions including the
patented attractions, café, and birthday party rooms. 6 Consumers associate these features with
Urban Air franchises. See Ex. 2. Factors 1 through 4 therefore weigh in Plaintiffs’ favor. See
Terex S.D. v. Sinoboom N. Am., 2021 LEXIS 191168 (S.D. Tex. 2021) (Hittner, J.) (finding that
the following weighed in favor of a finding of secondary meaning: long-term use of the mark
and incorporation of the mark online and in various video and magazine advertisements).
Third, given the stark similarities in Kangaroo Fun Zone and its predecessor,
consumers were confused when Kangaroo opened an indoor trampoline park identical to the
Urban Air that operated in the same location since April 13, 2019 with little to no alterations.
See Ex. 2. In other words, consumers associate the combination of Plaintiffs’ Trade Dress
identified herein with Urban Air franchises.
6Urban Air (and by association Plaintiffs’ Trade Dress) have been featured on television programs such as Entrepreneur
TV.

Fourth, Kangaroo was clearly aware that an Urban Air franchise was operated at the
McPherson Property shortly before its occupation – all Urban Air equipment remained
unaltered inside the facility. In fact, the entire facility remained in the same condition as when
Franchisee abandoned the premises. Rather than customize the space or make any effort to
differentiate itself from its predecessor, Kangaroo chose to unlawfully use Plaintiffs’ Trade
Dress and, in doing so, benefit from the look, feel, and experience Urban Air spent substantial
time developing and perfecting. Because factors 1, 2, 3, 4, 6, and 7 weigh in Plaintiffs’ favor,
there is a substantial likelihood that Plaintiffs can establish secondary meaning.
c. Plaintiffs’ Trade Dress is nonfunctional.
Two tests for functionality exist – the traditional test and competitive necessity test.
Under the “traditional” definition of functionality, “a product feature is functional, and cannot
serve as a trademark, ‘if it is essential to the use or purpose of the article or if it affects the cost
or quality of an article,’” such that “if a product feature is ‘the reason the device works,’ then
the feature is functional.” Academy Ltd. v. CWGS Grp., LLC, 2019 LEXIS 189507, *6 (S.D.
Tex. Oct. 31, 2019) (Werlein, J.) (citing Eppendorf-Netheler-Hinz GMBH v. Ritter GMBH, 289
F.3d 351, 355 (5th Cir. 2002) (quoting TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23,
34 (2001)). Under the “competitive necessity” test, “a functional feature is one the ‘exclusive
use of which would put competitors at a significant non-reputation-related disadvantage.’”
Id. Although functional features cannot be protected as trade dress, “a particular arbitrary
combination of functional features, the combination of which is not itself functional, properly
enjoys protection.” Taco Cabana Int’l., 932 F.2d at 1119. In other words, “in order to receive
trade dress protection for the overall combination of functional features, those features must

be configured in an arbitrary, fanciful, or distinctive way.” Sparrow Bars & Events v. Ruth Farm,
Inc., 2019 LEXIS 61515, *18 (E.D. Tex. 2019). Therefore, the question is not whether some
component of a product’s trade dress is functional but whether the entirety of a product’s
trade dress is functional. Id. (citing Two Pesos, 932 F.2d at 1119). Because Plaintiffs Trade Dress
consists of arbitrary and fanciful design elements that serve no function, Plaintiffs can establish
a likelihood of success on the merits regarding functionality.
The features comprising Plaintiffs’ trade dress are not functional because none enable
Plaintiffs to operate as an indoor trampoline park. See Sparrow, 2019 LEXIS 61515 at *19
(“These features [referring to Plaintiff’s claimed trade dress] are not functional because none
enable the White Sparrow to operate as a wedding venue.”).
For example, Plaintiffs’ use of neon orange, yellow, Urban Air Lime Green, and
Cosmic Dust Blue serves no utilitarian or functional purpose. Plaintiffs could have selected
any color scheme and still be able to operate an indoor trampoline park. Plaintiffs’ use of ball
pits with white balls and the theme of their three climbing walls are for design and stylistic
purposes only. Plaintiffs could operate an indoor trampoline park with different color balls
and climbing walls with different themes or could operate without balls, a ball pit, or climbing
walls. Plaintiffs could also operate an indoor trampoline park without redundancy trampolines,
no hold netting, and their other Attractions.
Even if one considers the features of Plaintiffs’ Trade Dress to be functional, the
aggregate of functional features are combined in an arbitrary and fanciful way to create a
distinct indoor trampoline park that warrants protection. Sparrow, 2019 LEXIS 61515 at *19.
Moreover, the exclusive use of the combination of the features of Plaintiffs’ Trade Dress do

not place competitors, including Kangaroo Fun Zone, at a non-reputation related disadvantage
if Defendants were prohibited from copying Plaintiffs’ Trade Dress. Defendants can utilize
many different combinations of color schemes, layouts, Attractions, and equipment features
without infringing on Plaintiffs’ Trade Dress. See id.; Academy, 2019 LEXIS 189507 at *8; Two
Pesos, 932 F.2d at 1119 (“Taco Cabana’s particular integration of elements leaves a multitude
of alternatives to the upscale Mexican fast-food industry that would not prove confusingly
similar to Taco Cabana’s trade dress.”). For these reasons, Plaintiffs are likely to succeed in
establishing their Trade Dress is nonfunctional.
d. Defendants’ infringement has caused actual customer confusion.
Courts examine the following non-exhaustive “digits of confusion” in evaluating
likelihood of confusion:
(1) the type of trademark; (2) mark similarity; (3) product similarity; (4) outlet and
purchaser identity; (5) advertising media identity; (6) defendant’s intent; (7) actual
confusion; and (8) care exercised by potential purchasers.
Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009)
(quoting Marathon Mfg. Co. v. Enerlite Products Corp., 767 F.2d 214, 218 (5th Cir. 1985)).
The digits “do not apply mechanically to every case and can serve only as guides, not as
an exact calculus.” Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 485 (5th Cir.
2004). No digit is dispositive, and the digits may weigh differently from case to case,
depending on the particular facts and circumstances involved. Xtreme Lashes, 576 F.3d at
226 (quoting Marathon Mfg. Co., 767 F.2d at 218).
i) Similarity of Marks

A side by side comparison of photographs of an Urban Air franchise and Kangaroo
Fun Zone as it existed as of April 13, 2022 reveals the stark similarities between the two parks.
Ex. 1. 7 Urban Air and Kangaroo Fun Zone look the same. They feel the same. They offer the
same activities. They service the same consumer market. The two are seemingly identical, save
and except Kangaroo’s attempt to cover up of Urban Air branding. 8 See Ex. 8. 9 One could
argue that the marks are not similar – they are the same. Thus, this factor weighs heavily in
favor of Plaintiffs. TWTB, Inc. v. Rampick, 152 F. Supp.3d 549, 574 (E.D. La. 2016) (“The
Court has also reviewed the photographs showing the interior and exterior of the restaurant
before and after the termination of the License Agreement and also finds that the two are
almost indistinguishable. Looking specifically to the items that LRSBR contends constitute its
trade dress, the surfboards and surfer-related decorative items, the vast majority of these items
have remained following the termination of the License Agreement. Therefore, the Court finds
that the similarity of the trade dress weighs strongly in favor of a likelihood of confusion.”).
ii) Similarity of Services
“‘The greater the similarity between the products and services, the greater the
likelihood of confusion.’” All. for Good Gov’t v. Coal. for Better Gov’t, 901 F.3d 498, 512 (5th Cir.
2018) (quoting Exxon Corp. v. Tex. Motor Exch. of Houston, Inc., 628 F.2d 500, 505 (5th Cir.
1980)). Kangaroo and Urban Air offer the exact same services – both are indoor trampoline
parks. Kangaroo and Urban Air target the same market and customer base – families. The

8 Kangaroo’s cover up of Urban Air branding is insufficient to differentiate itself from Urban Air. See Two Pesos, 932 F.2d
at 1122 (“The issue is not whether consumers can read signs and menus that identify different restaurants, but whether
consumers assume some affiliation between Taco Cabana and Two Pesos.”).

services offered by Kangaroo and Urban Air could not be more similar. Thus, this factor also
weighs in Plaintiffs’ favor.
iii) Similarity in Retail Outlets, Purchaser Identity, and Advertising Media
Both Kangaroo and Urban Air use social media and the internet to advertise. In fact,
Kangaroo even uses photographs of Plaintiffs’ intellectual property and Trade Dress in
advertisements on its website and social media pages. Ex. 3. This is especially concerning and
confusing in today’s world where technology is king and social media and the internet play an
unprecedented role in influencing consumer choices. Because Kangaroo uses photographs of
Urban Air’s Trade Dress in its marketing efforts consumers are likely to think some affiliation
with Urban Air exists. These factors all weigh in Plaintiffs’ favor.
iv) Actual Confusion
There exists in the record evidence of actual customer confusion. Ex. 2. 10 The
overwhelming similarities between Kangaroo Fun Zone and its predecessor deceive
consumers into mistakenly believing that Defendants are licensees, franchisees, affiliates of
UATP Management, or that Defendants, their activities, and their products are authorized,
endorsed, sponsored, or approved by UATP Management. As one customer put it “its
[Kangaroo Fun Zone] littery (sic) urben (sic) air.” Id.
v) Defendants’ Intent
As noted above, Kangaroo was clearly aware that an Urban Air franchise was operated
at the McPherson Property shortly before it occupied the premises – all Urban Air equipment
remained unaltered inside the facility. In fact, the entire facility remained in the same condition

as when Franchisee abandoned the premises. Rather than customize the space or make any
effort to differentiate itself from its predecessor (other than trying to hide explicit Urban Air
branding), 11 Kangaroo chose to use Plaintiffs’ Trade Dress and benefit from the look, feel,
and experience Urban Air spent substantial time developing and perfecting. Further, an
employee at Kangaroo Fun Zone told a person visiting the park that “the same three families
that owned Urban Air own the Kangaroo Fun Zone.” Therefore, Franchisee and Kangaroo
knew about the protected status of Plaintiff’s Attractions and Trade Dress and continued to
unlawfully use it anyway. This factor also weighs heavily in Plaintiffs’ favor.
Patent Infringement
By way of assignment, UATP IP is the current exclusive owner of all right, title, and
interest in and to U.S. Patent 10,702,729 B2 (the “Patent”) duly and legally issued by the United
States Patent and Trademark Office on July 7, 2020. A copy of the patent is attached as Exhibit
6 12 and the assignment as Exhibit 7. 13 UATP IP licenses the Patent to UATP Management
exclusively, and UATP Management sublicenses the Patent exclusively to Urban Air Park
franchisees. The Patent is presumed to be valid. Ralston Purina Co. v. Far-Mar-Co., Inc., 772 F.2d
1570, 1573 (Fed. Cir. 1985) (An issued patent is presumed valid, and “the burden of persuasion
to the contrary is and remains on the party asserting invalidity.”); Impax Labs., Inc. v. Aventis
Pharm., Inc., 468 F.3d 1366, 1378 (Fed. Cir. 2006); 35 U.S.C. § 282 (“A patent shall be presumed
valid.”); Titan Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1377 (Fed. Cir. 2009) (A patent
11
See Ex. 8.
12 This is also Exhibit A to Plaintiffs’ Second Amended Complaint.
13 This is also Exhibit E to Plaintiffs’ Second Amended Complaint.

enjoys the same presumption of validity during preliminary injunction proceedings as at other
stages of litigation). Plaintiffs’ Patent generally includes:
A play apparatus has plural types of elevated equipment, namely a ropes course
and a zip coaster. Both types of elevated equipment have respective user safety
supports that extend along the respective equipment and receive a safety harness
worn by a user. The user need not change safety harnesses to use the different
types of equipment. The entry and exit locations for the elevated equipment are in
a common area elevated above the ground. A third type of equipment, namely an
obstacle course, is located under and above the common area.
Ex. 6, Abstract. Without authority, and by stepping into Franchisee’s shoes to operate
Kangaroo Fun Zone with minimal to no significant alterations, Defendants have used
the claimed invention thereby infringing the Patent. Plaintiffs have thus established a
likelihood of success on the merits for their patent infringement claim.
Copyright Infringement
A claim of copyright infringement has two elements: (1) ownership of a valid copyright;
and (2) copying constituent elements of the work that are copyrightable. Geophysical Serv. v.
TGS-NOPEC Geophysical Co., 850 F.3d 785, 791 (5th Cir. 2017). A copy is legally actionable if
the alleged infringer used the copyrighted material to create his own work, and substantial
similarity exists between the two works. Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d 772,
790 (5th Cir. 1999).
UATP IP is the undisputed owner of registered copyright Registration Number 2-096-
749, a copy of which is attached at Exhibit 4. 14 UATP IP’s copyright pertains to a drawing
referred to as the “Slam Dunk”. See Ex. 5. UATP IP licenses the use of the copyrighted
drawing to UATP Management to use for the benefit of Urban Air.
14 This is also Exhibit B to Plaintiffs’ Second Amended Complaint.

Defendants are using the Slam Drunk drawing or a similarly confusing version of the
drawing at Kangaroo Fun Zone. A side-by-side comparison of Urban Air’s Slam Dunk and
Kangaroo’s minimally altered version of the same makes this abundantly clear. See Ex. 5; Gen.
Uni. Sys., Inc. v. Lee, 379 F.3d 131, 142 (5th Cir. 2004) (“A side-by-side comparison must be
made between the original and the copy to determine whether a layman would view the two
works as substantially similar.”); Stutts v. Texas Saltwater Fishing Magazine, Inc., 2014 LEXIS
53839, at *3 (S.D. Tex. Apr. 18, 2014) (Costa, J.) (infringement exists if an “ordinary observer,
unless he set out to detect the disparities, would be disposed to overlook them, and regard
their aesthetic appeal as the same.”). Other than changing the backboard of the basketball
hoop, Kangaroo Fun Zone’s basketball hoop is identical to the Slam Dunk attraction that
existed when the space was operated as an Urban Air. Therefore, there is a substantial
likelihood that Plaintiffs will succeed on the merits of their copyright infringement claim.
II. Plaintiffs will suffer irreparable injury if no injunction issues.
If the Court does not issue an injunction, there is a substantial threat that Plaintiffs will
suffer irreparable harm. The Fifth Circuit has recognized the unique nature of the harm caused
by trademark infringement, and has held that where there is a likelihood of confusion, there is
usually irreparable injury. Abraham v. Alpha Chi Omega, 708 F.3d 614, 627 (5th Cir. 2013)
(finding irreparable injury and noting that McCarthy’ s leading trademark law “treatise states,
‘[T]here seems little doubt that money damages are ‘ inadequate’ to compensate [owner] for
continuing acts of [infringer].”” The Southern District provides further instructive analysis of
this element:
T-Mobile has established a likelihood of confusion .... Whether Aio offers

lowergrade, equivalent, or superior products and services, T-Mobile has shown a

substantial likelihood of an irreparable injury. In addition to T-Mobile’s inability to

control the quality or nature of Aio’s products and services, T-Mobile’s time,
effort, and expense exerted to create and define its brand has been unfairly
exploited. Monetary damages could not remedy T-Mobile’s loss of future goodwill
or customer loyalty.
T-Mobile US, Inc. v. Aio Wireless LLC, 991 F. Supp. 2d 888, 928-29 (S.D. Tex. 2014) (Rosenthal,
J.).
While Plaintiffs spent years developing their intellectual property and Trade Dress and
cultivating goodwill, it takes far less time to harm that goodwill. If a consumer is dissatisfied
with the service or experience Kangaroo Fun Zone provides, because Kangaroo Fun Zone is
confusingly similar to Urban Air franchises, Urban Air may lose that customer forever. Even
if the infringing activities of Defendants stop, Urban Air may never regain the trust and
confidence of consumers who were confused by Defendants’ unauthorized use of Plaintiffs’
intellectual property and Trade Dress. See Ramada Franchise Sys. v. Jacobcart, Inc., 2001 LEXIS
6650, at *3 (N.D. Tex. May 17, 2001) (“[a] bad experience at one location of what is supposed
to be a relatively uniform chain may influence the customer to view the entire franchise
poorly.”).
When a likelihood of confusion exists, the plaintiff’s lack of control over the quality of
the defendant’s goods or services constitutes an immediate and irreparable injury, regardless
of the actual quality of those goods or services. TGI Friday’s, Inc., 652 F. Supp.2d at 772;
Quantum Fitness Corp. v. Quantum LifeStyle Ctrs., L.L.C., 83 F.Supp.2d 810, 831 (S.D. Tex. 1999)
(Rosenthal, J.). Because Plaintiffs cannot control Defendants’ use of Plaintiffs’ Trade Dress,
they are powerless to control Urban Air’s reputation and place in the market without an
injunction. ADT, LLC v. Capital Connect, Inc., 145 F. Supp. 3d 671, 696 (N.D. Tex. 2015)

(considering the loss of control of reputation and place in the market irreparable harm). Given
the pervasive similarities between Kangaroo Fun Zone and its predecessor, evidence of actual
confusion and Kangaroo’s blatant infringement, Plaintiffs have inevitably lost control over
their goodwill, and however that loss may manifest itself, it constitutes a substantial threat of
irreparable harm. Id. (the injury to Plaintiffs’ “control of their trade dress, customer goodwill,
reputation, and potential loss of customers and vendors is difficult to quantify and likely
cannot be fully compensated with monetary remedies”); see Sparrow, 2019 LEXIS 61515 at *13.
III. The balance of harms strongly favors Plaintiffs.
The threatened injury to Plaintiffs outweighs any damage the injunction might cause
Franchisee and/or Kangaroo. Courts usually hold that when defendants improperly use a
plaintiff’s trademark, the threatened harm to the plaintiff outweighs the threatened harm to
the defendants.” Ramada, 2001 U.S. Dist. LEXIS 6650 at *3. If a preliminary injunction is not
granted, Franchisee and Kangaroo will continue to benefit from Plaintiffs’ goodwill and
exploit their unlawful use of Plaintiffs’ intellectual property and Trade Dress, which Plaintiffs
spent years developing and perfecting. 15
IV. A preliminary injunction serves the public interest.
“‘The public interest is always served by requiring compliance with Congressional
statutes such as the Lanham Act and by enjoining the use of infringing marks.’“ T-Mobile, 991
15Even if Kangaroo is forced to shut down and strip the facility of Plaintiffs’ intellectual property and Trade Dress, any
harm suffered by Kangaroo for closing the facility is calculable and compensable through money damages. TGI Friday’s,
Inc., 652 F. Supp.2d at 772-73 (citing Petro Franchise Sys., 607 F.Supp.2d at 796-97 (explaining that value of franchise can
be calculated in several ways, and holding that, because terminated franchisees' threatened harm is compensable, the
threatened harm to franchisor is greater)).

F. Supp. 2d at 929 (quoting Quantum Fitness Corp., 83 F. Supp. 2d at 832). Because intellectual
property and trade dress are entitled to protection and Plaintiffs have established a substantial
likelihood of success on their infringement claims, a preliminary injunction serves the public
interest. TWTB, Inc. v. Rampick, 152 F. Supp. 3d 549, 578 (E.D. La. 2016) (finding that since
there is a substantial likelihood of success on intervenor’s trademark infringement claims, “a
preliminary injunction will serve the public interest as intervenor has demonstrated that its
marks are entitled to protection and an injunction will reduce confusion and foster
competition”); Sparrow, 2019 LEXIS 61515 at *27 (“When a plaintiff demonstrates a
substantial likelihood of success on a trade dress infringement claim, a preliminary injunction
serves the public interest as the trade dress is entitled to protection.”).
Further, trademark law aims to “protect the public from deceit” and to protect
“investment from its misappropriation by pirates and cheats.” Two Pesos, 505 U.S. at 782 n. 15
(1992) (Steven, J. concurring). Certainly, the public has an interest in not being deceived. See
TGI Friday’s, Inc., 652 F. Supp.2d at 773 (stating that the public also has an interest in not being
deceived into believing that it is dining at a TGI Friday’s restaurant that is no longer affiliated
with TGIF and that is using TGIF’s marks without authorization). Issuing a preliminary
injunction in this case would therefore serve the public interest.
CONCLUSION
For the reasons set forth above, Plaintiffs respectfully ask the Court to issue a
preliminary injunction against Defendants Air Entertainment Group, LLC and Kangaroo,
LLC as follows:

- Cease and desist from using, copying, or otherwise infringing on Plaintiffs’ U.S.
Patent 10,702,729 B2;
- Cease and desist from using, copying, or otherwise infringing on Plaintiffs’ Slam
Dunk Drawing with the properly registered copyright Registration Number VA 2-
096-749;
- Cease and desist from using Plaintiffs’ operations and attractions manuals, or any
other written directives issued to Franchisee by Plaintiffs;
- Rebrand the Kangaroo color scheme by removing and replacing any use of neon
orange, yellow, Urban Air Lime Green, and Cosmic Dust Blue color scheme within
the facility or on social media, waivers, and any advertisements
- Remove the following attractions from Kangaroo:

o Adventure Hub
o Apex Trampolines
o Ball Pit
o Battle Beam
o Climbing Walls
o Dodgeball Arena
o Drop Zone
o Kids Zone
o Pro Zone
o Ropes Course
o Runway (Tumble Track)
o Sky Rider
o Slam Dunk Zone
o Stairway to Heaven
o Warrior Course
- Remove any warning, hazard, and/or instruction signs presently in the Kangaroo
facility;
- Remove of any photos from any current or former Urban Air facility on Kangaroo
social media or advertisement;
- Cease and desist from using any of Urban Air’s confidential information including its
vendors;

- Place signs throughout the Kangaroo facility, on social media, waivers, and any
advertisements that reads:
Kangaroo is not affiliated, associated, authorized, endorsed, sponsored,
approved by, or in any way connected with Urban Air Adventure &
Trampoline Park
Respectfully submitted,
BOYARMILLER
By:/s/ Chris Hanslik

Chris Hanslik
[email protected]
Federal ID No. 19249
State Bar of Texas No. 00793895
2925 Richmond Avenue, 14th Floor
Houston, Texas 77098
Telephone: (713) 850-7766
Facsimile: (713) 552-1758
ATTORNEY-IN-CHARGE FOR
UATP IP, LLC a Texas Limited Liability
Company, and UATP MANAGEMENT,
LLC, a Texas Limited Liability Company
OF COUNSEL:
Andrew Pearce
[email protected]
State Bar No. 24060400
Molly Hust
[email protected]
Alexandra Wolf
[email protected]
BOYARMILLER
2925 Richmond Avenue, 14th Floor
Houston, Texas 77098
Telephone: (713) 850-7766
Facsimile: (713) 552-1758

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was delivered to all counsel
via the Court’s electronic filing system on June 9, 2022.
/s/ Chris Hanslik

Chris Hanslik

Case 4:21-cv-02478 Document 67-1 Filed on 06/09/22 in TXSD Page 1 of 21
EXHIBIT 1
Urban Air: Kangaroo:
:
Urban Air:
Kangaroo:
Urban Air:
Kangaroo:

Urban Air:
Kangaroo:
Urban Air:
Kangaroo:




Urban Air:
Kangaroo:
Urban Air:
Kangaroo:
Urban Air:
Kangaroo:

Urban Air:
Kangaroo:
Urban Air:
Kangaroo:
Urban Air:
Kangaroo:
Urban Air:
Kangaroo:
Urban Air:
Kangaroo:

EXHIBIT 2
Social Media – references to Urban Air on Kangaroo Fun Zone Facebook page:
No. 1
Page 3 of 6
007926\00002\3077328.1 - 2/7/2022 2:55:10 PM

No. 2
Page 4 of 6
007926\00002\3077328.1 - 2/7/2022 2:55:10 PM

No. 3
Page 5 of 6
007926\00002\3077328.1 - 2/7/2022 2:55:10 PM

No. 4
Page 6 of 6
007926\00002\3077328.1 - 2/7/2022 2:55:10 PM

EXHIBIT 3
478 Document 67-3 Filed on 06/09/22 in TX
EXHIBIT 4
EXHIBIT 5
Copyright Infringement
EXHIBIT 6
EXHIBIT 7
EXHIBIT 8

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Case 4:21-cv-02478 Document 67 Filed on 06/09/22 in TXSD Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE

UATP IP, LLC, a Texas Limited Liability

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF

TO THE HONORABLE LYNN N. HUGHES:

by Defendants’ infringement of Plaintiffs’ intellectual property and Trade Dress.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 1 OF 22

agreement with UATP Management (“Franchise Agreement”). Under the Franchise

Agreement, UATP issued to Franchisee a non-transferable license to use UATP’s intellectual

abandoned the lease premises and defaulted under the Lease.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 2 OF 22

obtained by improper means.

This Court should issue a preliminary injunction if Plaintiffs show:

(1) a substantial likelihood of success on the merits, (2) a substantial threat

Kangaroo as detailed herein.

I. There is a substantial likelihood that Plaintiffs will succeed on the merits of

on a single claim that warrants injunctive relief is sufficient to support a preliminary

any of their claims, the Court should issue a preliminary injunction.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 3 OF 22

Trade Dress Infringement

competing products. Id.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 4 OF 22

a. Plaintiffs’ trade dress is inherently distinctive.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 5 OF 22

1998) (citation omitted).

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 6 OF 22

law protects the distinctive totality.”).

b. Plaintiffs’ Trade Dress has acquired secondary meaning.

has acquired secondary meaning:

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 7 OF 22

uninterrupted since Urban Air’s inception.

identified herein with Urban Air franchises.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 8 OF 22

there is a substantial likelihood that Plaintiffs can establish secondary meaning.

c. Plaintiffs’ Trade Dress is nonfunctional.

use of which would put competitors at a significant non-reputation-related disadvantage.’”

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 9 OF 22

a likelihood of success on the merits regarding functionality.

enable the White Sparrow to operate as a wedding venue.”).

no hold netting, and their other Attractions.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 10 OF 22

establishing their Trade Dress is nonfunctional.

d. Defendants’ infringement has caused actual customer confusion.

Courts examine the following non-exhaustive “digits of confusion” in evaluating

226 (quoting Marathon Mfg. Co., 767 F.2d at 218).

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 11 OF 22

A side by side comparison of photographs of an Urban Air franchise and Kangaroo

ii) Similarity of Services

7 This is also Exhibit F-1 to Plaintiffs’ Second Amended Complaint.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 12 OF 22

weighs in Plaintiffs’ favor.

iii) Similarity in Retail Outlets, Purchaser Identity, and Advertising Media

unprecedented role in influencing consumer choices. Because Kangaroo uses photographs of

iv) Actual Confusion

endorsed, sponsored, or approved by UATP Management. As one customer put it “its

[Kangaroo Fun Zone] littery (sic) urben (sic) air.” Id.

10 This is also Exhibit F-3 to Plaintiffs’ Second Amended Complaint.

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 13 OF 22

VERIFIED MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ PAGE 14 OF 22