Writing Sample: Fourever Chocolate Complaint. The following is a complaint drafted for my Litigating an IP Case class during spring semester

Transcription

1 Writing Sample: Fourever Chocolate Complaint The following is a complaint drafted for my Litigating an IP Case class during spring semester Our assignment was to draft a complaint on behalf of a small business suing a major corporation for trademark infringement. This writing sample is in its original format with no editing and is the product of a prior revision with my professor s notes.

2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x FOUREVER CHOCOLATE, LLC : JURY TRIAL DEMANDED Plaintiffs, : Case No. 02 Civ. v. : COMPLAINT Richly CORP., Defendants. : x Plaintiff Fourever Chocolate, LLC by its attorney Jose Landivar alleges as follows: NATURE OF THE ACTION 1. This is an action for trademark infringement under the Lanham Act, 15 U.S.C et seq. This action arises under the Defendant s infringement of Plaintiff s registered mark Fourever. Defendant, Richly Corp., is a multinational corporation that is responsible for numerous gum products available at major drug chains and innumerable candy kiosks nationwide. Plaintiff is the maker of a specialized premium chocolate bar and has built its name without flashy ad campaigns, instead relying primarily on word-of-mouth and the enthusiasm of its highly selective customers. Its products are sold online and at specialty shops in major metropolitan areas around the country. In October 2014, Plaintiff through its CEO and founder William S. Berg, discovered that Richly Corp. had brought Forever Premium Chewing Gum to the market and had started selling it with a major marketing campaign targeted at a similar 1

3 audience as Fourever and in some of the same trade channels as the Plaintiff. Plaintiff alleges injury as a result of Defendant s conduct. THE PARTIES 2. Plaintiff is a New York corporation with its principal place of business in this district. Its primarily line of business is the production of a high-quality, artisanal bar of chocolate sold through various retailers and vendors nationwide. 3. On information and belief, Defendant Richly Corp., is a New York corporation with its principal place of business in this District. JURISDICTION AND VENUE 4. This action arises under the Lanham Act, 15 U.S.C 1051 et seq. 5. This Court has jurisdiction over the subject matter of this Complaint pursuant to at least 28 U.S.C. 1331, 1338(a) and (b), and This Court has personal jurisdiction over Defendant by virtue of, among other things, it transacting, doing, and soliciting business in this District and because the harm caused by the Defendant s actions occurred in this District. 7. Venue is proper in this District pursuant to at least 28 U.S.C. 1391(b)(2). THE FACTS Fourever Chocolate 8. Fourever Chocolate was founded by its current CEO, William S. Berg, in It makes a specialty line of artisanal chocolate, targeted at a discerning audience with refined tastes. 9. The brand primarily focuses its resources on producing a popular bar of chocolate that is sold through various vendors and boutique retailers including high-end food stores and specialized gift shops. 2

4 10. The bar s signature features are its distinct taxicab yellow and black striped wrapping (see Appendix A), the exquisite taste of its chocolate, and the bar s separation into four large breakaway square parts, evoking its name Fourever and the supreme experience the bar provides to the consumer. 11. The brand finds its humble origins as a passion project of sorts, conceived by Mr. Berg who was a local musician at the time. It has grown from a small table at the Brooklyn FLEA (a local flea market formerly in the Clinton Hill section of Brooklyn), to a full-fledged company with twelve full-time employees and a factory and shop located in the Gowanus. 12. The brand has developed goodwill primarily through word of mouth referrals and through consumers who may be attracted to its distinct packaging. 13. Fourever reports annual sales in the neighborhood of $5,000, Plaintiff has a valid registration in the mark Fourever in Class 30 with a registration date of May 19, It filed for registration on Dec. 20, Defendants Infringement of the Fourever Trademark 15. Upon information and belief, Richly Corp., is a multinational corporation with extensive reach of its chewing gum products at drug stores, newspaper kiosks, and supermarkets and groceries. 16. Upon information and belief, Richly Corp., is known for selling mass-market products at prices that are accessible to both the average and the more price-conscious consumer. It is presumed that it has never offered a premium line of chewing gum, nor has it ever produced a product targeted at a more discerning class of consumers. 17. Upon information and belief, Richly Corp. launched Forever in the fall of 2014 across the country and in numerous places where Fourever is sold as well. 3

5 18. Upon information and belief, Richly Corp. filed a trademark application for Forever on Jan. 1, The product packaging for Forever contains numerous attributes similar to the Plaintiff s registered mark. In addition to the obvious name similarity, the name of the product itself is set against a two-colored striped background in bold, black letter type. The packaging also prominently features the words Premium Chewing Gum in red, similar to the red line used by the Plaintiff to highlight and underline Premium Dark Chocolate Bar. 20. Accordingly, the Plaintiff has experienced numerous instances of customers and vendors reporting a presumed association with its premium chocolate brand and Richly s mass-market line of chewing gum. 21. Plaintiff has had no prior communication with the Defendant. It has not given the Defendant any agreement or license to approximate or copy its mark or any other features of its product. FIRST CLAIM FOR RELIEF (Trademark Infringement) 22. Plaintiff repeats and realleges each of the allegations contained in paragraphs Plaintiff has a valid registration in the mark Fourever. 24. Plaintiff has built up valuable goodwill in Fourever s distinctive trademarks for a highquality premium brand of dark chocolate. 25. Upon information and belief, Defendant has directly or indirectly copied Plaintiff s trademark in Fourever. 4

6 26. Defendant s actions have caused, and are likely to cause confusion, mistake or deception as to the origin or source of Forever chewing gum and deprive the Plaintiff of its right to control the use and quality of products sold under the Fourever trademark. 27. There exists an actual controversy between the parties, with respect to which the Plaintiff is entitled to a declaration that the Defendant s unauthorized use of the Fourever trademark infringes Plaintiff s rights under the Lanham Act. 28. As a result of Defendant s conduct, Plaintiff has been and will be substantially and irreparably injured. WHEREFORE, Plaintiff prays for judgment against the Defendant, as follows: 1. Preliminary and permanent injunctions enjoining Defendant from selling, marketing, or distributing Forever chewing gum under its current mark. 2. An Order declaring that Defendant s mark and trade dress infringes Plaintiff s rights in violation of the Lanham Act. 3. An Order entering judgment for Plaintiff and against the Defendant on each of the Plaintiff s claims for relief. 4. An award to Plaintiff of damages resulting from Defendant s conduct, in an amount to be determined at trial. 5. An award to Plaintiff of its costs and attorneys fees in this action. 6. Any other such relief as the court deems just and proper. 5

7 JURY DEMAND Plaintiff hereby demands a jury trial. DATED: February 16, 2015 Brooklyn Law Firm By Jose Landivar, Attorney for Plaintiff 5 Madison Avenue 23 rd Floor New York, NY (212)

8 APPENDIX A