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heinie sniffn v heineken

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					          Case 2:13-cv-00319-SPL Document 1 Filed 02/13/13 Page 1 of 4


 1   Firm E-Mail: courtdocs@dickinsonwright.com

 2   David G. Bray (#014346)
     dbray@dickinsonwright.com
 3   DICKINSON WRIGHT/MARISCAL WEEKS
     2901 North Central Avenue, Suite 200
 4   Phoenix, Arizona 85012-2705
     Phone: (602) 285-5000
     Fax: (602) 285-5100
 5
     Attorneys for VIP Products, LLC
 6

 7                       IN THE UNITED STATES DISTRICT COURT
 8                                     DISTRICT OF ARIZONA

 9   VIP Products, LLC, an Arizona limited                   No.
     liability company,
10
                                                             COMPLAINT
11
                   Plaintiff,
                                                             (Declaratory Judgment)
12          v.

13   Heineken USA Incorporated , a New York
     corporation, Heineken Brouwerijen B.V. a
14   Netherlands corporation,
15
                   Defendants.
16

17

18          Plaintiff, VIP Products, LLC (“Plaintiff”) for its complaint against defendant Heineken

19   USA Incorporated and Heineken Brouwerijen B.V. (collectively, “Defendants”), by and

20   through its undersigned counsel, Dickinson Wright/Mariscal Weeks, hereby alleges and states

21   as follows:

22                                                      I.

23                                              THE PARTIES

24          1.     Plaintiff is an Arizona limited liability company corporation with its principal

25   place of business at 16515 S. 40th Street, Suite 121, Phoenix, Arizona 85048.

26



                                                    1
           Case 2:13-cv-00319-SPL Document 1 Filed 02/13/13 Page 2 of 4


 1          2.      Upon information and belief, defendant Heineken USA Incorporated is a New

 2   York corporation with its principal place of business at 360 Hamilton Ave. Ste. 1103, White

 3   Plains, New York 10601-1841.

 4          3.      Upon information and belief, defendant Heineken Brouwerijen B.V. is a

 5   Netherlands corporation with its principal place of business in Amsterdam, The Netherlands.

 6          4.      Defendants are citizens of a state other than Arizona, within the meaning of 28

 7   U.S.C. § 1332(c)(1). Defendants have caused events to occur in Maricopa County, Arizona

 8   out of which this complaint derives.

 9                                                     II.

10                                            JURISDICTION

11          5.      This Court has subject matter jurisdiction over this claim for declaratory

12   judgment pursuant to 28 U.S.C. § 2201 and Rule 57, Fed. R. Civ. P., as this is a case of actual

13   controversy within the Court’s jurisdiction. The Court has subject matter jurisdiction over the

14   underlying claim pursuant to (a) 28 U.S.C § 1331, as it involves the right to use a trademark

15   and threatened claims under the Lanham Act.

16                                                    III.

17                                                 VENUE

18          6.      Venue is proper in this district under 28 U.S.C. § 1391(a) and (c), as Defendants

19   are subject to personal jurisdiction in this state.

20                                                    IV.

21                                            JURY DEMAND

22          7.      Plaintiff demands a trial by jury on all claims so triable.

23                                                     V.

24                                FACTS COMMON TO ALL CLAIMS

25          8.      Plaintiff is engaged primarily in the business of designing, manufacturing, and

26   marketing chew toys for dogs.



                                                       2
              Case 2:13-cv-00319-SPL Document 1 Filed 02/13/13 Page 3 of 4


 1             9.    Plaintiff sells several lines of dog chew toys, including the “Tuffy’s” line

 2   (durable sewn/soft toys), the “Mighty” line (durable toys made of a different material than the

 3   Tuffy’s line), and the “Silly Squeakers” (durable rubber squeaky novelty dog toys).

 4             10.   In approximately September of 2007 VIP introduced its “HeinieSniff’n” durable

 5   rubber squeaky novelty dog toy.

 6             11.   Plaintiff is the owner of all rights in its HeinieSniff’n trademark and trade dress

 7   for its durable rubber squeaky novelty dog toy.

 8             12.   Upon information and belief, defendant Heineken USA Incorporated is the

 9   United States licensee of several trademarks for beer owned by defendant Heineken

10   Brouwerijen B.V., including the mark “HEINEKEN”, United States Trademark Reg. No.

11   956,608.

12             13.   VIP designed the HeinieSniff’n label to incorporate a few elements of the

13   Heineken trade dress; for example VIP included a red star on its label. On the other hand,

14   VIP included drastic differences from the Heineken marks and trade dress in the

15   HeinieSniff’n label to make it clear that it was a parody. For example, VIP selected the words

16   “HeinieSniff’n” because they are clearly not “Heineken”, included the humorous phrase

17   “Premium Sniffer” on the toy in two locations, and placed two large cartoon dogs on the front

18   label.

19             14.   On information and belief, on or about January 30, 2013, an attorney for

20   Defendants contacted MainMerch of New York, an online retail customer of Plaintiff, and

21   contended that Plaintiff’s HeineSniff’n’s parody dog toy infringes Defendants’ trademarks

22   and requested that MainMerch remove all pictures of Plaintiff’s parody dog toys from their

23   website.

24

25

26



                                                       3
           Case 2:13-cv-00319-SPL Document 1 Filed 02/13/13 Page 4 of 4


 1                                                   VI.

 2                                        CLAIM FOR RELIEF

 3                                       (Declaratory Judgment)

 4          15.     Plaintiff incorporates and realleges herein by this reference Paragraphs 1

 5   through 14, inclusive, as though set forth in full herein.

 6          16.     There is an actual and justiciable controversy between Plaintiff and Defendants

 7   regarding Plaintiff’s use of its HeinieSniff’n trademark and trade dress for its novelty dog toy.

 8          17.     As a matter of law, Plaintiff’s use of its HeinieSniff’n name and mark does not

 9   infringe or dilute any claimed trademark rights and/or trade dress rights that Defendants may

10   claim in trademark and/or trade dress for their Heineken beer.

11          WHEREFORE Plaintiff respectfully requests that the Court:

12          A.      Issue a judgment declaring that Plaintiff’s use of its HeinieSniff’n name and

13   mark for its novelty dog toy does not infringe or dilute any trademark rights claimed by one or

14   both Defendants in the name and mark “HEINEKEN.”

15          B.      Issue a judgment declaring that Plaintiff’s use of its HeinieSniff’n trade dress

16   for its novelty dog toy does not infringe or dilute any rights claimed by one or both

17   Defendants in the trade dress for Heineken beer.

18          C.      Grant such additional or other relief as the Court deems just and proper.

19                RESPECTFULLY SUBMITTED this 13th day of February, 2013.

20
                                               DICKINSON WRIGHT/MARISCAL WEEKS
21

22                                             By: _s/David G. Bray______________
23                                                  David G. Bray
                                                    2901 North Central Avenue
24                                                  Suite 200
                                                    Phoenix, Arizona 85012-2705
25                                                  Attorneys for VIP Products, LLC
     PHOENIX 53913-1 33635v1
26



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