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					            Case 2:13-cv-00182-BCW Document 2 Filed 03/12/13 Page 1 of 6




Brian C. Kunzler (Utah State Bar No. 6912)
KUNZLER LAW GROUP
8 East Broadway, Suite 600
Salt Lake City, UT 84111
Telephone: (801) 994-4646
Fax: (801) 531-1929
Email: bkunzler@kunzlerlaw.com
Attorney for Plaintiff

                      IN THE UNITED STATES DISTRICT COURT
                       DISTRICT OF UTAH, CENTRAL DIVISION

                                                   )
 MOTHERS LOUNGE, LLC,                              )
                                                   )
                                      Plaintiff,   )
                                                   )   Civil Action No. 2:13-cv-00182-BCW
                     vs.                           )
                                                   )
 MOMMY GEAR, LTD.,                                 )
                                                   )   Magistrate Judge: Brooke C. Wells
                                   Defendant.      )
                                                   )
                                                   )
                                                   )
                                                   )


                 COMPLAINT FOR DECLARATORY JUDGMENT OF
            NON-INFRINGEMENT OF TRADEMARK RIGHTS AND FAIR USE

                                           The Parties

       1.      Plaintiff Mothers Lounge, LLC (“Mothers Lounge”) is a corporation organized

and existing under the laws of the State of Utah having an address at 363 West Industrial Drive,

Pleasant Grove, UT 84062.
            Case 2:13-cv-00182-BCW Document 2 Filed 03/12/13 Page 2 of 6




       2.      Defendant Mommy Gear, Ltd. (“Mommy Gear”) is a corporation organized and

existing under the laws of the State of Pennsylvania having a place of business at 1303 McCully

Road, Pittsburgh, PA 15234-1934.

                                     Jurisdiction and Venue

       3.      This is an action for declaratory judgment of non-infringement of trademark

rights and fair use. This Court has subject matter jurisdiction under 28 U.S.C. §§ 2201-2202, 15

U.S.C. §§ 1115(b)(4), 1121(a), and 35 U.S.C. 1338(a)-(b).

       4.      Personal jurisdiction in this district is proper inasmuch as Defendant Mommy

Gear has solicited and conducted business within the State of Utah via its commercial website

and online ordering system, thereby purposely availing itself of the benefits and protections of

Utah laws. Likewise, personal jurisdiction is proper under Utah’s long-arm statute, Utah Code

Ann. § 78B-3-201(3) because Defendant regularly solicits or does business in the State of Utah.

       5.      Venue is proper in this district in accordance with 28 U.S.C. § 1391(b)(2).

                      Count I — Non-infringement of Trademark Rights

       6.      Plaintiff Mothers Lounge has made and sold baby and maternity products since

2005, including baby car seat covers, baby slings, nursing covers, nursing bracelets, and nursing

pillows. Plaintiff’s products are sold in thousands of retail locations across the country,

including Motherhood Maternity.

       7.      Mothers Lounge has launched websites promoting the sale of its line of baby and

maternity products, including www.motherslounge.com, www.uddercovers.com,

www.sevenslings.com, www.carseatcanopy.com, www.milkbands.com,


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            Case 2:13-cv-00182-BCW Document 2 Filed 03/12/13 Page 3 of 6




www.nursingpillow.com and www.hotslings.com. In 2012, Mothers Lounge registered the

domain name “freemommygear.com” and created a corresponding Facebook page for

“freemommygear.com” to promote its products by giving promotional codes good at its various

websites above to interested consumers. Both the website and Facebook page for

“freemommygear.com” include the following logo:




Mothers Lounge currently markets its products on its www.freemommygear.com website.

       8.      Defendant Mommy Gear is the owner of the registered trademark “MOMMY

GEAR” (Trademark Registration No. 2,814,822). It operates a commercial website at

www.mommygear.com selling, amongst other things, maternity products and children’s clothing.

According to Defendant’s website and Pennsylvania state records, the founder and President of

Mommy Gear is Dawn LaMuth-Higgins.

       9.      On or around January 26, 2013, an individual named Chris Higgins contacted

Plaintiff through Facebook, stating that “Mommy Gear is OUR LICENSED

TRADEMARK!!!!!” and accusing Mothers Lounge to be “in violation of our trade mark.”

Higgins ordered Mothers Lounge to “Cease and Desist IMMEDIATELY!!!” Upon information

and belief, Chris Higgins is married to Dawn LaMuth-Higgins and, in his correspondence with

Mothers Lounge, was acting on behalf of and at the direction of the Defendant.




                                               3
          Case 2:13-cv-00182-BCW Document 2 Filed 03/12/13 Page 4 of 6




        10.     A few weeks later, on or around February 13, 2013, Higgins threatened to “sue

[Plaintiff] for all accounts, payments and revenues” and once again ordered Plaintiff to “[c]ease

and desist immediately!”

        11.     In response to Higgin’s threat to sue, Plaintiff stated its belief that its creation of

the “freemommygear.com” Facebook page did not infringe on Defendant’s trademark. In

response, Higgins accused Plaintiff of being “in violation of FTC, FCC Laws as well as civil

laws of trading on behalf of [Defendant’s] trademark without license and without authorization.”

In addition, Higgins threatened to “file a credit lien against [Plaintiff] with all three credit

reporting agencies and notify them that [Plaintiff] are engaging in fraudulent business activities.”

Furthermore, Higgins also threatened Plaintiff with criminal prosecution.

        12.     There is no reasonable likelihood of confusion between Plaintiff’s

“freemommygear.com” mark and Defendant’s “MOMMY GEAR” mark. “MOMMY GEAR”

and “freemommygear.com” are distinct in appearance, sound, and meaning. Although the words

“mommy gear” appear within “freemommygear.com,” the elements “free” and “.com” in

“freemommygear.com” make Plaintiff’s mark distinct in sight, sound, and connotation to

ordinary observers.

        13.     Defendants have no reasonable basis for asserting that Plaintiff’s

“freemommygear.com” mark infringes on Defendant’s mark. On information and belief,

Defendants have not asserted that other marks such as “Mommy Gearist” or “Mommy Gearest,”

infringe Defendant’s mark, despite being easily found in an internet search and being much more

similar to Defendant’s mark than “freemommygear.com.”


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            Case 2:13-cv-00182-BCW Document 2 Filed 03/12/13 Page 5 of 6




       14.     Plaintiff is entitled to a judgment that its “freemommygear.com” mark is not

confusingly similar to, and thus does not infringe, Defendant’s “MOMMY GEAR” mark.

                                      Count II — Fair Use

       15.     Plaintiff re-alleges and incorporates by reference paragraphs 1-14.

       16.     Plaintiff’s use of “mommy gear” within its “freemommygear.com” mark is a fair

use of Defendant’s mark. Mothers Lounge is not using the words “mommy gear” within

“freemommygear.com” as a trademark or service mark to cause confusion with consumers

regarding the source of its goods. Rather, Mothers Lounge—in good faith—is using “mommy

gear” as a way of describing its own line of baby and maternity products.

       17.     Plaintiff is entitled to a judgment that its inclusion of “mommy gear” in its

“freemommygear.com” mark is a fair use of the Defendant’s “MOMMY GEAR” mark.

                                        Prayer For Relief

       In light of the foregoing, Mothers Lounge respectfully request the following relief:

       A.      A judgment that Mothers Lounge’s “freemommygear.com” mark does not

infringe Defendant’s “MOMMY GEAR” mark;

       B.      A judgment that the inclusion of the terms “mommy gear” in Mothers Lounge’s

“freemommygear.com” mark constitutes fair use of Defendant’s “MOMMY GEAR” mark under

15 U.S.C. 1115(b)(4);

       C.      An award of reasonable attorneys’ fees, costs, and expenses incurred by Mothers

Lounge in this action; and

       D.      Any further relief that this Court deems just and proper.


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       Case 2:13-cv-00182-BCW Document 2 Filed 03/12/13 Page 6 of 6




                                      Jury Demand

     Mothers Lounge hereby demands a trial by jury on all issues and claims so triable.




DATED: March 13, 2013                            __/s/Brian C. Kunzler__________
                                                 Brian C. Kunzler (Utah State Bar No. 6912)
                                                 KUNZLER LAW GROUP
                                                 8 East Broadway, Suite 600
                                                 Salt Lake City, UT 84111
                                                 Telephone: (801) 994-4646
                                                 Fax: (801) 531-1929
                                                 Email: bkunzler@kunzlerlaw.com
                                                 Attorney for Plaintiff




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