UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN ] ] ] ] ] ] ] ] ] ] ] ] ]

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1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN JASON R. FULLER N7151 Sunset Drive Gresham, WI 54128, vs. PATRICIA HEINTZ/CANDEE 4671 Hamilton Avenue Sparta, WI 54656, Plaintiff, Defendant. Case No: Complaint NOW COMES the Plaintiff, Jason R. Fuller, by his attorney, Michael T. Hopkins, and as and for a cause of action against the Defendant, Patricia Heintz/Candee, alleges and shows to the Court as follows: Jurisdiction and Venue 1. The Court has subject matter jurisdiction in this action pursuant to 28 U.S.C and 1338, as this action arises under the Federal Trademark Act, 15 U.S.C. 1051, et seq. 2. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b)(1) and (2), and 28 U.S.C. 1391(c), as the Defendant resides and has her principal place of business within this District. Parties 3. The Plaintiff, Jason R. Fuller, is an adult individual residing at N7151 Sunset Drive, Gresham, Wisconsin, who is self employed, doing business as Renee s Wonderful World of Teddy Bear Puppies.

2 4. The Defendant, Patty Heintz/Candee, is an adult individual residing at 4671 Hamilton Avenue, Sparta, Wisconsin, who is self employed, doing business as Dirty Paws Teddy Bears. Facts 5. Fuller has been self employed since 1994, breeding puppies which are a cross between a bichon frise and shitzu, which he has marketed and sold in interstate commerce since that time under the trademark Teddy Bear Puppies. 6. On December 26, 2006 the United States Patent and Trademark Office registered the Teddy Bear Puppies mark (registration no: ) on its Principal Register in favor of Fuller as owner of the mark, for use in the sale of live puppy dogs which are a cross between a bichon frise and shitzu in International Class Since at least July 2002, Heintz has been marketing and selling puppies in interstate commerce using the trademarks Dirty Paws Teddy Bears and Teddy Bear Puppies. 8. In July 2002 Heintz registered the internet domain name dirtypawsteddybears.com which she has used since that time to host a web site for the marketing and sale of puppies in interstate commerce using the trademarks Dirty Paws Teddy Bears and Teddy Bear Puppies. 9. Heintz use of the Dirty Paws Teddy Bears and Teddy Bear Puppies. trademarks in the marketing and sale of puppies is likely to cause confusion concerning the origin of said puppies with the consuming public. 10. Heintz use of the Dirty Paws Teddy Bears and Teddy Bear Puppies. trademarks in the marketing and sale of puppies is likely to cause confusion, mistake 2

3 and/or deception with the consuming public as to Fuller s affiliation, connection, association, sponsorship, and/or approval of Heintz puppies. 11. Heintz has used the dirtypawsteddybears.com domain name as a trademark identifying a type and mix of puppy breed to divert consumer interest and sales to her web site and business, and away from Fuller s web site and business. First Cause of Action Trademark Infringement Use of Teddy Bear Puppies Mark 12. Fuller realleges and incorporates, as if fully set forth herein, paragraphs In using the Dirty Paws Teddy Bears and Teddy Bear Puppies. trademarks in the marketing and sale of puppies, Heintz has infringed the registered Teddy Bear Puppies mark owned by Fuller in violation of 32(1)(a) of the Lanham Act; 15 U.S.C. 1114(1)(a). 14. Pursuant to 35 of the Lanham Act, 15 U.S.C. 1117, Fuller is entitled, as damages, to his lost profits and Heintz sales, trebled, together with an award of his actual costs and disbursements herein, including actual attorney s fees. Second Cause of Action Trademark Infringement Use of dirtypawsteddybears.com Domain Name 15. Fuller realleges and incorporates, as if fully set forth herein, paragraphs In using the dirtypawsteddybears.com domain name to divert customers and sales as alleged above, Heintz has infringed the registered Teddy Bear Puppies trademark owned by Fuller, in violation of 32(1)(a) of the Lanham Act; 15 U.S.C. 1114(1)(a). 3

4 17. Pursuant to 35 of the Lanham Act, 15 U.S.C. 1117, Fuller is entitled, as damages, to his lost profits and Heintz sales, trebled, together with an award of his actual costs and disbursements herein, including actual attorney s fees. Third Cause of Action False Designation of Origin, Connection, Association, Approval or Sponsorship, and Unfair Competition, All in Violation of 43(a) of The Lanham Act; 15 U.S.C. 1125(a) 18. Fuller realleges and incorporates, as if fully set forth herein, paragraphs Heintz use of the Dirty Paws Teddy Bears and Teddy Bear Puppies. trademarks, as described above, constitutes false designation of origin, sponsorship and/or affiliation, and unfair competition in violation of 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 20. Heintz has used the Dirty Paws Teddy Bears and Teddy Bear Puppies. trademarks, as described above, with the intention of creating a false designation of origin, sponsorship and/or affiliation, and unfair competition in violation of 43(a) of the Lanham Act, 15 U.S.C. 1125(a), thereby entitling Fuller to treble damages and actual attorney s fees pursuant to 15 U.S.C. 1117(a). 21. As a direct result of Hintz conduct in violation of 43(a) of the Lanham Act, as described above, Fuller has been damaged and Heintz has been unjustly enriched, entitling Fuller to compensatory damages in an amount to be determined at trial, together with his actual costs and attorney s fees. 4

5 Fourth Cause of Action Injunctive Relief 22. Fuller realleges and incorporates, as if fully set forth herein, paragraphs As a further direct result of Heintz conduct in violation of 43(a) of the Lanham Act, as described above, Fuller has suffered, and will continue to suffer irreparable injury and damage to his reputation and the goodwill associated with his trademark, and said trademark will lose its source-identifying distinctiveness in the marketplace; that Fuller has no adequate remedy at law to redress said injuries and damage, thereby entitling him to injunctive relief, enjoining Heintz from further unlawful conduct. Fifth Cause of Action Cybersquatting 24. Fuller realleges and incorporates, as if fully set forth herein, paragraphs In using the dirtypawsteddybears.com domain name to divert customers and sales as alleged above, Heintz has manifested a bad faith intent to profit from Fuller s Teddy Bear Puppies trademark, in violation of 43(d) of the Lanham Act, 15 U.S.C. 1125(d). 26. Pursuant to 43(d)(1)(C) of the Lanham act, 15 U.S.C. 1125(d)(1)(C), Fuller is entitled to have the ownership of the dirtypawsteddybears.com domain name transferred to him. WHEREFORE, the Plaintiff, Jason R. Fuller, hereby demands that judgment be entered in his favor and against the Defendant, Patricia Heintz/Candee, as follows: 5

6 1. That Defendant be adjudged to have infringed Plaintiff s United States Trademark Registration No , in violation of 15 U.S.C. 1114; 2. That Defendant be adjudged to have violated the provisions of 15 U.S.C. 1125(a) in competing unfairly with Plaintiff; 3. That Defendant, her officers, directors, owners, partners, employees, servants, and agents, and all those persons in active concert and participation with Defendant, be enjoined and restrained, during the pendency of this action, and permanently thereafter, from violating Plaintiff s rights or continuing to commit the wrongful acts alleged in this Complaint including, without limitation: a. Using the Dirty Paws Teddy Bears and Teddy Bear Puppies trademarks or any confusingly similar marks, for or in connection with advertising, marketing, promoting, selling, and/or distributing puppies or related goods or services; b. Using any name, mark or designation, for or in connection with advertising, marketing, promoting, selling and/or distributing puppies which is likely to cause confusion, mistake, or deception of the public with regard to Plaintiff s names, marks or designations; c. Passing her goods as Plaintiff s; d. Engaging in unfair competition, unfair or deceptive trade practices, and false designation of origin against Plaintiff; e. Practicing any conduct aimed at or likely to result in diverting business intended for Plaintiff or injuring Plaintiff s goodwill and business reputation; 6

7 f. from using a domain name which is the same or confusingly similar to the Teddy Bear Puppies trademark for the sale, promotion or marketing of puppies. 4. For money damages suffered by Plaintiff as previously alleged, including, without limitation, for corrective advertising, lost profits, unjust enrichment, reasonable royalty, and injury to reputation and other damages, in an amount to be ascertained at trial; 5. For treble damages pursuant to 15 U.S.C. 1117(b); 6. Ordering Defendant to transfer ownership of the dirtypawsteddybears.com domain name to Plaintiff; 7. For the full costs of this action, including actual attorneys fees; 8. For an assessment of prejudgment and post-judgment interest at the maximum rate allowed by law; 9. For all such other relief as the Court deems just and proper. PLAINTIFF HEREBY DEMANDS A JURY TRIAL PURSUANT TO FRCP 38(b) Dated this 4th day of June, Michael T. Hopkins attorney for Plaintiff (WI SBN: ) I P Special Counsel, Ltd N. Prospect Avenue P.O. Box Milwaukee, WI mhopkins@ipspecialcounsel.com Tel: Fax: