tommy gun v al capone by martyschwimmer

VIEWS: 11 PAGES: 20

									      Case: 1:13-cv-02306 Document #: 1 Filed: 03/27/13 Page 1 of 20 PageID #:1



                              UNITED STATES DISTRICT COURT
                              NORTHERN DISTRICT OF ILLINOIS
                                    EASTERN DIVISION


SAEILO ENTERPRISES, INC.                               )
(A Delaware Corporation)                               )
                                                       )
                       Plaintiff,                      )
                                                       )       CASE NO.
                                                       )
               v.                                      )
                                                       )
ALPHONSE CAPONE ENTERPRISES, INC.                      )
(An Illinois Corporation)                              )
                                                       )
                       Defendant.                      )


                                           COMPLAINT

        For this Complaint against Defendant, Alphonse Capone Enterprises, Inc. (“Capone”),

Plaintiff, Saeilo Enterprises, Inc. (“Saeilo”), by its attorneys, hereby alleges as follows:

                                A. SUBSTANCE OF THE ACTION

       1.      This case involves infringement upon the distinctive and famous Tommy Gun

               trademarks used by Saeilo in connection with the sale and promotion of its

               products in the United States.        Defendant’s infringement arises out of the

               unauthorized use of the Tommy Gun trademarks on alcoholic beverages bearing

               reproductions of the famous Tommy Gun marks (“infringing items”).

       2.      Defendant’s use of the Tommy Gun marks on the infringing items violates

               Saeilo’s rights under federal trademark law, common law and Illinois state law.

               Saeilo asserts claims for federal trademark infringement, federal trademark

               dilution, false designation of origin or sponsorship, and trade dress infringement

               pursuant to the Lanham Act, as well as common law trademark infringement and
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       unfair competition.     Furthermore, Saeilo brings claims under the Illinois

       Trademark Registration and Protection Act and the Illinois Deceptive Trade

       Practices Act. Saeilo seeks a permanent injunction preventing Defendant from

       using the distinctive Tommy Gun trademarks, along with an award of damages,

       treble damages, profits, attorney’s fees and costs.

                                 B. THE PARTIES

 3.    Saeilo is a business organized and existing under the laws of the state of Delaware

       with its principal office in Pearl River, New York.

 4.    Defendant Capone is a corporation organized and existing under the laws of

       Illinois. Defendant may be served through its registered agent, John Hoscheit,

       1001 East Main Street, Suite G, St Charles, IL 60174.

                        C. JURISDICTION AND VENUE

 5.    Count I herein arises under the laws of the United States prohibiting infringement

       of federally registered trademarks, specifically the Lanham Act, 15 U.S.C. §

       1114. Count II is for dilution in violation of the federal Lanham Act, 15 U.S. C. §

       1125(c). Count III is for false designation of origin in violation of Section 43(a)

       of the Lanham Act, 15 U.S.C. § 1125(a). Count IV is for trade dress infringement

       under 15 U.S.C § 1125(a).

 6.    Count V arises under the common law of Illinois prohibiting trademark

       infringement and Count VI arises under the common law of Illinois prohibiting

       unfair competition. Counts VII and VIII arise out of violations of Illinois state

       law.

 7.    Counts IX and X seek cancellation of Defendant’s trademark registrations under




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       15 U.S.C. § 1064.

 8.    This Court has original jurisdiction over Counts I, II, III, IV, IX and X of this

       Complaint pursuant to 15 U.S.C. § 1121, 28 U.S.C. §§ 1331 and 1338(a).

 9.    This Court has original jurisdiction over Counts V and VI of this Complaint

       pursuant to 28 U.S.C. § 1338(b).

 10.   This Court has supplemental jurisdiction over Counts VII and VIII of this

       Complaint pursuant to 28 U.S.C. § 1367(a) since they are so related to Counts I

       through VI as to be part of the same case or controversy.

 11.   Defendant has submitted to this Court’s jurisdiction as it is domiciled in this

       district and is doing business in the state of Illinois.

 12.   The exercise of personal jurisdiction over Defendant by this Court is consistent

       with the federal Due Process Clause.

 13.   Venue is proper in this district pursuant to 28 U.S.C. § 1391 as Defendant is

       domiciled in this district and has committed the acts of infringement, deceptive

       trade practices, and unfair competition complained of in this district.

                           D. GENERAL ALLEGATIONS

                      1. Saeilo’s Intellectual Property Rights

 14.   Saeilo is a diversified manufacturing company consisting of three divisions,

       including Kahr Arms (“Kahr”), a leading designer and manufacturer of quality

       firearms.

 15.   Relative to its firearms business, Saeilo is the exclusive owner of a wide variety

       of intellectual property rights. Included within these rights are federal and state

       registered trademarks, trade dress, copyrights and patents for Kahr’s well-known




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       weapon designation marks and weapon designs.

 16.   Relevant to this Complaint, Saeilo owns common law trade dress rights in the

       design of the Thompson submachine gun, popularly known as the “Tommy Gun”.

       Furthermore, Saeilo is the owner of, among others, United States trademark

       registration number 2,885,628 for the word mark “Tommy Gun” and Illinois state

       registration number 100887, for the Tommy Gun design. These registrations are

       active and unrevoked, and constitute prima facie evidence of Saeilo’s ownership

       of the marks. [See attached, Exhibits A and B] Pursuant to 15 U.S.C. §§ 1065

       and 1115(b), Saeilo’s U.S. registration number 2,885,628 is also incontestable and

       serves as conclusive evidence of the validity of the trademark and of Saeilo’s

       exclusive rights to use the mark in connection with the goods covered by the

       registration. Hereinafter, the Tommy Gun trade dress and trademarks will be

       collectively referred to as “the Tommy Gun marks”.

 17.   The Tommy Gun marks are distinctive and famous and non-functional.

 18.   Saeilo is engaged in the sale and/or licensing of promotional merchandise, bearing

       the Tommy Gun marks in Illinois and throughout the United States.

 19.   Saeilo maintains strict control over the quality and nature of its products and

       items bearing the Tommy Gun marks.

 20.   Saeilo has invested considerable time and money in advertising the Tommy Gun

       marks throughout Illinois and elsewhere in the United States. As a result of

       extensive worldwide advertising, the Tommy Gun marks are immediately

       recognizable as originating from Saeilo.

 21.   Saeilo has acquired substantial goodwill among consumers in the United States.




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 22.   As a result of such goodwill and immediate recognition, and as a result of

       extensive advertising, the Tommy Gun marks have become highly valuable.

          2. Defendant’s Infringement of Saeilo’s Trademark Rights

 23.   Subsequent to Saeilo’s use and registration of the Tommy Gun marks, Defendant

       began using the Tommy Gun marks or confusingly similar variations of the

       marks.

 24.   Defendant has manufactured, produced, advertised and/or sold alcoholic

       beverages bearing the Tommy Gun marks. [See attached, Exhibit C]

 25.   Defendant has not received permission from Saeilo, or anyone acting on Saeilo’s

       behalf, to manufacture, produce, advertise or sell any item bearing the Tommy

       Gun marks.

 26.   By manufacturing, producing, advertising and/or selling items bearing the

       Tommy Gun marks without permission, Defendant has attempted to profit from

       and capitalize on the trademark rights and substantial goodwill developed by

       Saeilo.

 27.   Defendant has willfully and intentionally manufactured, produced, advertised

       and/or sold products bearing the Tommy Gun marks with knowledge that the

       Tommy Gun marks are owned by Saeilo.

 28.   Defendant manufactured, produced, advertised and/or sold items bearing the

       Tommy Gun marks with knowledge that Defendant’s use of the Tommy Gun

       marks was unauthorized.

 29.   The manufacture, production, advertisement, and/or sale of items bearing the

       Tommy Gun marks created a likelihood of consumer confusion.




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 30.   Defendant used the Tommy Gun marks with the intent to confuse and/or deceive

       consumers.

                           E. PLAINTIFF’S CLAIMS

                            COUNT I
       FEDERAL TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 1114

 31.   Saeilo incorporates herein by reference the allegations contained in all previous

       paragraphs of this Complaint.

 32.   Defendant has used in commerce, and in connection with the sale of goods, a

       reproduction, counterfeit, copy or colorable imitation of the Tommy Gun marks.

 33.   Defendant has reproduced, counterfeited, copied or imitated the Tommy Gun

       marks and applied the marks to labels, signs, prints, packages, receptacles or

       advertisements intended to be used in commerce.

 34.   Defendant’s unauthorized use of the Tommy Gun marks creates a likelihood of

       confusion, mistake and/or deception among consumers.

 35.   Defendant’s unauthorized use of the Tommy Gun marks is, on information and

       belief, willful and has been done with the intention of trading upon the valuable

       goodwill built up by Saeilo in its long-used and trusted Tommy Gun marks.

       Defendant intended to confuse, cause mistake or deceive consumers.

 36.   Defendant used the reproductions of the Tommy Gun marks with knowledge that

       the marks were copies and/or counterfeits.

 37.   On information and belief, consumers were initially interested and lured to the

       infringing items by the similarity to the Tommy Gun marks.

 38.   Defendant’s infringement and unauthorized use of the Tommy Gun marks

       jeopardizes the goodwill symbolized by the Tommy Gun marks causing serious




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       and irreparable injury to Saeilo, for which it has no adequate remedy at law.

       Unless Defendant is permanently enjoined from further infringement, Saeilo will

       continue to suffer irreparable harm.

 39.   A permanent injunction is necessary to prevent Defendant from further

       interference with Saeilo’s trademark rights.

 40.   As a result of Defendant’s infringement under 15 U.S.C. § 1114, Saeilo has been

       injured and is entitled to damages, including but not limited to, Defendant’s

       profits from the sale of all infringing items, actual damages, treble damages, and

       costs of suit. Since Defendant’s infringement is willful, this should be deemed an

       exceptional case entitling Saeilo to attorney’s fees under 15 U.S.C. § 1117(a).

                             COUNT II
              TRADEMARK DILUTION UNDER 15 U.S.C. § 1125(c)

 41.   Saeilo incorporates by reference the allegations contained in all previous

       paragraphs of this Complaint.

 42.   The Tommy Gun marks are the product of creativity and imagination.

 43.   Through long use and substantial advertising and promotion, the Tommy Gun

       marks have become distinctive and famous, and are widely recognized by the

       general consuming public of the United States as a designation of source of the

       goods and/or services of Saeilo.

 44.   Defendant adopted and used the Tommy Gun marks after the marks became

       famous.

 45.   Defendant’s unauthorized use in commerce of the Tommy Gun marks has caused

       or is likely to cause dilution of the distinctive quality of Saeilo’s famous marks in

       violation of 15 U.S.C. § 1125(c).




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 46.   Defendant’s use of the Tommy Gun marks is commercial in nature.

 47.   Defendant’s use of the Tommy Gun marks has weakened the unique association

       of the marks with Saeilo, as owner of the marks.

 48.   As a result of Defendant’s dilution under 15 U.S.C. § 1125(c), Saeilo has suffered

       irreparable harm to valuable Tommy Gun trademarks.             Unless Defendant is

       permanently enjoined from further dilution, Saeilo will continue to suffer

       irreparable harm for which it has no adequate remedy at law.

 49.   A permanent injunction is necessary to prevent Defendant from further

       interference with Saeilo’s trademark rights.

 50.   As a result of Defendant’s dilution of the famous Tommy Gun marks, Saeilo has

       been injured and is entitled to damages, including, but not limited to, Defendant’s

       profits from the sale of all infringing items, actual damages, treble damages, and

       costs of suit. Since Defendant’s dilution is willful, this should be deemed an

       exceptional case entitling Saeilo to attorney’s fees under 15 U.S.C. § 1117(a).

                             COUNT III
             FALSE DESIGNATION OF ORIGIN OR SPONSORSHIP
                        UNDER 15 U.S.C. § 1125(a)

 51.   Saeilo incorporates by reference the allegations contained in all previous

       paragraphs of this Complaint.

 52.   Defendant used the Tommy Gun marks in commerce and in connection with the

       sale of goods or services.

 53.   Defendant’s unauthorized use of the Tommy Gun marks is likely to cause

       confusion or mistake and/or is likely to deceive consumers as to the affiliation,

       connection or association of Defendant with Saeilo; or as to the origin,




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       sponsorship, or approval of Defendant’s goods by Saeilo.

 54.   Defendant’s conduct constitutes false or misleading descriptions, and false

       designations of the origin and/or sponsorship of Defendant’s goods in violation of

       § 43(a) of the Lanham Act, as amended, 15 U.S.C. § 1125(a).

 55.   As a result of Defendant’s conduct, Saeilo has suffered irreparable harm to

       valuable Tommy Gun trademarks. Unless Defendant is permanently enjoined

       from further false designations, Saeilo will continue to suffer irreparable harm for

       which it has no adequate remedy at law.

 56.   A permanent injunction is necessary to prevent Defendant from further

       interference with Saeilo’s trademark rights.

 57.   As a result of Defendant’s violation of 15 U.S.C. §1125(a), Saeilo has been

       injured and is entitled to damages, including, but not limited to, Defendant’s

       profits from the sale of all infringing items, actual damages, treble damages, and

       costs of suit. Since Defendant’s infringement is willful, this should be deemed an

       exceptional case entitling Saeilo to attorney’s fees under 15 U.S.C. § 1117(a).

                             COUNT IV
          TRADE DRESS INFRINGEMENT UNDER 15 U.S.C. § 1125(a)

 58.   Saeilo incorporates by reference the allegations contained in all previous

       paragraphs of this Complaint.

 59.   Saeilo owns trade dress rights and protectable interests in the design of the

       Thompson submachine gun or the “Tommy Gun.” [See attached Exhibit D].

 60.   The Tommy Gun trade dress is non-functional.

 61.   Through long use and substantial advertising and promotion, the Tommy Gun

       trade dress has acquired secondary meaning.




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  62.   Defendant’s unauthorized use of the Tommy Gun trade dress is likely to cause

        confusion or mistake and/or is likely to deceive consumers as to the affiliation,

        connection or association of Defendant with Saeilo; or as to the origin,

        sponsorship, or approval of Defendant’s goods by Saeilo.

  63.   Defendant’s conduct constitutes trade dress infringement in violation of § 43(a) of

        the Lanham Act, as amended, 15 U.S.C. § 1125(a).

  64.   As a result of Defendant’s conduct, Saeilo has suffered irreparable harm to

        valuable Tommy Gun trademarks. Unless Defendant is permanently enjoined

        from further trade dress infringement, Saeilo will continue to suffer irreparable

        harm for which it has no adequate remedy at law.

  65.   A permanent injunction is necessary to prevent Defendant from further

        interference with Saeilo’s trademark rights.

  66.   As a result of Defendant’s violation of 15 U.S.C. §1125(a), Saeilo has been

        injured and is entitled to damages, including, but not limited to, Defendant’s

        profits from the sale of all infringing items, actual damages, treble damages, and

        costs of suit. Since Defendant’s infringement is willful, this should be deemed an

        exceptional case entitling Saeilo to attorney’s fees under 15 U.S.C. § 1117(a)

                              COUNT V
                 COMMON LAW TRADEMARK INFRINGEMENT

  67.   Saeilo incorporates by reference the allegations contained in all previous

        paragraphs of this Complaint.

  68.   Saeilo has the exclusive right to use the Tommy Gun marks or any marks similar

        thereto in association with the sale of firearms, non-firing guns and related

        products. As a result of the continued sale of these items by Saeilo, the Tommy




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          Gun marks have become immediately recognizable and Saeilo has become

          identified in the public mind as the manufacturer and/or licensor of the products

          and services to which the Tommy Gun marks are applied.

  69.     Saeilo has acquired a reputation among consumers for quality and excellence, and

          the Tommy Gun marks have come to symbolize that reputation.

  70.     Defendant, with knowledge of and with intentional disregard for the rights of

          Saeilo, manufactured, produced, advertised and/or sold items using the Tommy

          Gun marks or confusingly similar imitations thereof.

  71.     Defendant’s use of the Tommy Gun marks has created the likelihood of confusion

          among consumers.

  72.     Defendant’s acts constitute trademark infringement and willful infringement in

          violation of the common law of Illinois.

  73.     As a result of Defendant’s conduct, Saeilo has suffered irreparable harm to

          valuable Tommy Gun trademarks. Unless Defendant is permanently enjoined

          from further infringement, Saeilo will continue to suffer irreparable harm.

  74.     A permanent injunction is necessary to prevent Defendant from further

          interference with Saeilo’s trademark rights.

  75.     As a result of Defendant’s infringement, Saeilo has suffered damages, including,

          but not limited to, Defendant’s profits from the sale of all infringing items, actual

          damages, costs of suit and attorney’s fees.

                                COUNT VI
        UNFAIR COMPETITION IN VIOLATION OF ILLINOIS COMMON LAW

  76.     Saeilo incorporates by reference the allegations contained in all previous

          paragraphs of this Complaint.




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  77.   Defendant’s unlawful and unauthorized use of the Tommy Gun marks in

        connection with the sale of goods or services constitutes unfair competition in

        violation of the common law of Illinois because it is likely to cause confusion or

        misunderstanding as to the affiliation, connection, or association of Defendant’s

        goods by or with Saeilo. Defendant has otherwise engaged in unfair competition

        by representing that Defendant has a sponsorship, approval, status, affiliation, or

        connection with Saeilo that it does not have.

  78.   Defendant’s conduct creates consumer confusion as to the source and/or origin of

        the infringing items.

  79.   Defendant’s use of the Tommy Gun marks is an attempt to trade on Saeilo’s

        goodwill in those marks.

  80.   Defendant has willfully engaged in these acts of unfair competition.

  81.   As a result of Defendant’s conduct, Saeilo has suffered irreparable harm to

        valuable Tommy Gun marks. Unless Defendant is permanently enjoined from

        further unfair competition, Saeilo will continue to suffer irreparable harm for

        which it has no adequate remedy at law.

  82.   A permanent injunction is necessary to prevent Defendant from further

        interference with Saeilo’s rights.

  83.   Defendant’s unfair competition has caused Saeilo to incur damages, including but

        not limited to, Defendant’s profits from the sale of the infringing items, actual

        damages, costs of suit and attorney’s fees.




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                          COUNT VII
    INFRINGEMENT UNDER THE ILLINOIS TRADEMARK REGISTRATION
             AND PROTECTION ACT, 765 ILCS 1036/1, et seq.

  84.   Saeilo incorporates herein by reference the allegations contained in all previous

        paragraphs of this Complaint.

  85.   Defendant has used, without the consent of Saeilo, reproductions, counterfeits,

        copies or colorable imitations of the Tommy Gun marks.

  86.   Defendant’s use of the Tommy Gun marks in connection with the sale, offering

        for sale, or advertising of goods is likely to cause confusion or mistake or to

        deceive as to the source or origin of such goods.

  87.   Defendant has reproduced, counterfeited, copied or colorably imitated the Tommy

        Gun marks and applied the marks to labels, signs, prints, packages, receptacles or

        advertisements intended to be used upon or in conjunction with the sale or

        distribution in the State of Illinois of such goods.

  88.   Defendant’s use of the Tommy Gun marks creates the likelihood of confusion,

        mistake and/or deception among consumers.

  89.   Defendant’s acts were committed with the knowledge that such reproductions,

        counterfeits, copies or colorable imitations were intended to be used to cause

        confusion, or to cause mistake, or to deceive consumers.

  90.   As a result of Defendant’s infringement, Saeilo has suffered irreparable harm to

        valuable Tommy Gun marks. Unless Defendant is permanently enjoined from

        further infringement, Saeilo will continue to suffer irreparable harm.

  91.   A permanent injunction is necessary to prevent Defendant from further

        interference with Saeilo’s trademark rights.




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  92.    As a result of Defendant’s infringement under § 60 of the Illinois Trademark

         Registration and Protection Act, Saeilo has been injured and is entitled to

         damages, including but not limited to, Defendant’s profits from the sale of all

         infringing items, actual damages, treble damages, costs of suit and attorney’s fees.

                               COUNT VIII
         VIOLATION OF ILLINOIS DECEPTIVE TRADE PRACTICES ACT,
                           815 ILCS 510/1 et seq.

  93.    Saeilo incorporates herein by reference the allegations contained in all previous

         paragraphs of this Complaint.

  94.    Defendant has passed off goods as those of Saeilo.

  95.    Defendant has caused likelihood of confusion or of misunderstanding as to the

         source, sponsorship, approval or certification by Saeilo of the infringing items.

  96.    Defendant has caused likelihood of confusion or of misunderstanding as to

         affiliation, connection, or association with or certification by Saeilo of the

         infringing items.

  97.    Defendant has disparaged the business of Saeilo by false or misleading

         representations of fact.

  98.    Upon information and belief, Defendant has willfully engaged in the deceptive

         trade practices pleaded hereinabove.

  99.    Defendant’s deceptive trade practices have caused, and if not restrained by this

         Court, will continue to cause Saeilo irreparable injury for which Saeilo has no

         adequate remedy at law. Unless Defendant is permanently enjoined from further

         deceptive trade practices, Saeilo will continue to suffer irreparable harm.

  100.   Because Defendant has willfully engaged in deceptive trade practices, costs of




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          suit and attorney’s fees should be assessed against Defendant.

                               COUNT IX
                    PETITION FOR CANCELLATION OF
         FEDERAL TRADEMARK REGISTRATIONS UNDER 15 U.S.C. § 1064
                                FRAUD

  101.    Saeilo incorporates herein by reference the allegations contained in all previous

          paragraphs of this Complaint.

  102.    Defendant has applied for and obtained the following federal trademark

          registrations for identical and/or virtually identical representations of the Tommy

          Gun marks: Registration Nos. 2,849,028; 2,696,412; 2,955,440; and 3,402,327

          (“infringing marks”). Printouts of United States Patent and Trademark Office

          (“USPTO”) database records for these registrations are attached to this Complaint

          as Exhibit E.

  103.    Upon information and belief, Defendant fraudulently obtained registration of the

          infringing marks in that Defendant knew at the time of filing of the applications

          and the post-registration maintenance documents for the infringing marks that

          Saeilo had been using the Tommy Gun marks, and that Saeilo was entitled to all

          statutory and common law rights in the use of those marks.

  104.    Upon information and belief, Defendant, through its President, William Brooks,

          knew, at the time of filing the trademark applications for the infringing marks that

          the statements made in the declarations to the USPTO, inter alia, that the

          Defendant was entitled to use the marks in commerce, were false.

  105.    Upon information and belief, Defendant knowingly made such false statements in

          order to induce the USPTO to issue, renew and declare incontestable the

          infringing marks.




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  106.    Upon information and belief, the USPTO relied on Defendant’s claim of

          exclusive ownership over the infringing marks and would not have issued federal

          registrations for the infringing marks had it known of the falsity of the statements

          contained in Defendant’s applications.

  107.    By reason of the foregoing, this Court should direct the USPTO to cancel the

          infringing marks, or alternatively, order Defendant to transfer said marks to

          Saeilo, pursuant to Section 37 of the Lanham Act, 15 U.S.C. § 1119.

                               COUNT X
                    PETITION FOR CANCELLATION OF
         FEDERAL TRADEMARK REGISTRATIONS UNDER 15 U.S.C. § 1064
                            ABANDONMENT

  108.    Saeilo incorporates herein by reference the allegations contained in all previous

          paragraphs of this Complaint.

  109.    Upon information and belief, Defendant is no longer using the infringing marks in

          commerce.

  110.    Upon information and belief, Defendant has no intent to resume use of the

          infringing marks in commerce.

  111.    By reason of the foregoing, this Court should direct the USPTO to cancel the

          infringing marks, or alternatively, order Defendant to transfer said marks to

          Saeilo, pursuant to Section 37 of the Lanham Act, 15 U.S.C. § 1119.




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                              F. PRAYER FOR RELIEF

  WHEREFORE, Saeilo prays for relief against the Defendant as follows:

  a.     That Defendant, its officers, partners, agents, servants, affiliates, employees,

         attorneys, and representatives, and all those in privity or acting in consent or

         participation with Defendant, and each and all of them, be permanently enjoined

         from:

         (i)     Imitating, copying, reproducing, or using, in any manner, the Tommy Gun

                 marks, or any other mark confusingly similar to the Tommy Gun marks;

         (ii)    Committing any act that dilutes or is likely to dilute the distinctiveness of

                 the Tommy Gun marks;

         (iii)   Committing any act that is likely to create the impression that Defendant’s

                 business or products are in any way sponsored by, approved by or

                 otherwise affiliated or connected with Saeilo;

         (iv)    Importing, manufacturing, producing, distributing, circulating, selling,

                 offering for sale, advertising, promoting or displaying any product or

                 service using any simulation, reproduction, counterfeit, copy or imitation

                 of any Tommy Gun trademark or trade dress or anything confusingly

                 similar thereto; and

         (v)     instructing, assisting, aiding, or abetting any other person or business

                 entity in engaging in or performing any of the activities referred to in

                 subparagraphs (i) through (iv) above.

  b.     That Defendant be required to:

         (i)     Deliver to Saeilo for destruction all goods and materials bearing the




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                Tommy Gun marks or anything confusingly similar thereto which

                Defendant has in its possession or control, including, but not limited to,

                products,   packaging    materials,    advertising   materials,   promotional

                materials, brochures, price lists, or any other materials bearing or

                containing the Tommy Gun marks or anything confusingly similar thereto,

                pursuant to 15 U.S.C. § 1118;

        (ii)    Recall and deliver to Saeilo for destruction all goods and materials bearing

                the Tommy Gun marks or anything confusingly similar thereto that have

                been previously distributed or sold;

        (iii)   Pay compensatory damages to Saeilo in an amount to be determined at

                trial for the injuries Saeilo has sustained as a consequence of the acts

                complained of, pursuant to 15 U.S.C. § 1117;

        (iv)    Pay over to Saeilo all gains, profits and advantages realized by Defendant

                as a consequence of the acts complained of, pursuant to 15 U.S.C. § 1117;

        (v)     Pay over to Saeilo treble damages, or alternatively, Defendant’s profits

                trebled, whichever is greater, pursuant to 15 U.S.C. § 1117;

        (vi)    Pay all of Saeilo’s litigation expenses, including reasonable attorneys’ fees

                and costs of this action, pursuant to 15 U.S.C. § 1117;

        (vii)   Pay interest to Saeilo, including pre-judgment interest on the foregoing

                sums; and

        (viii) File with this Court and serve on Saeilo an affidavit setting forth in detail

                the manner and form of Defendant’s compliance with the terms of this

                Court’s orders.




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  c.    That Defendant’s federal registration nos. 2,849,028; 2,696,412; 2,955,440; and

        3,402,327 be either cancelled, or transferred to Saeilo, pursuant to 15 U.S.C. §

        1119.

  d.    That Saeilo be awarded such other and further relief as the Court may deem just

        and proper.




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    Case: 1:13-cv-02306 Document #: 1 Filed: 03/27/13 Page 20 of 20 PageID #:20



                               DEMAND FOR TRIAL BY JURY

       Saeilo hereby respectfully requests a trial by jury in this cause, and for all other relief just

and proper in the premises.



                                              Respectfully submitted,


                                              /s/ Boris Umansky
                                              Dennemeyer & Associates, LLC
                                              Boris Umansky (#6279470)
                                              Counsel for Plaintiff

                                              120 S. LaSalle Street, #1400
                                              Chicago, IL 60603
                                              (312) 380-6497
                                              (312) 419-9440 – fax

                                              Darlene R. Seymour
                                              Counsel for Plaintiff (to be admitted pro hac vice)
                                              General Counsel
                                              Continental Enterprises
                                              1292 E. 91st Street
                                              Indianapolis, IN 46240
                                              317-818-0523
                                              317-566-2453 – fax




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