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					      Case 4:13-cv-02044 Document 1 Filed in TXSD on 07/12/13 Page 1 of 17



                       IN THE UNITED STATES DISTRICT COURT
                       FOR THE SOUTHERN DISTRICT OF TEXAS
                                 HOUSTON DIVISION

GABBANELLI ACCORDIONS &                        §
IMPORTS, L.L.C.,                               §
                                               §
               Plaintiff,                      §             Civil Action No. 4:13-cv-2044
                                               §
vs.                                            §
                                               §
HERMES INTERNATIONAL, INC. and                 §             JURY
HERMES TRADING CO., INC.                       §
                                               §
               Defendants.                     §

                            PLAINTIFF’S ORIGINAL COMPLAINT

       Gabbanelli Accordions & Imports, L.L.C. (“Gabbanelli” or “Plaintiff”) files this Original

Complaint against Hermes International, Inc. and Hermes Trading Co., Inc. (collectively

“Defendants”) and respectfully shows the Court as follows:

                                             I.
                                          PARTIES

       1.      Plaintiff Gabbanelli Accordions & Imports, L.L.C. is a Texas limited liability

company with its principal place of business in Houston, Texas.

       2.      On information and belief, Defendant Hermes International, Inc., is a corporation

organized under the laws of the State of Texas, having a principal place of business located at

830 N. Cage Blvd., Pharr, Texas 78577, and doing business in this Judicial District under the

name Hermes Music located at 9941 North Freeway, Houston, Texas. Service may be affected

upon Defendant Hermes International, Inc. through service of its registered agent A. C. Nelson,

3505 Boca Chica Blvd., Ste. 434, Brownsville, Texas 78521.

       3.      On information and belief, Defendant Hermes Trading Co., Inc., is a corporation

organized under the laws of the State of Texas, having a principal place of business located at


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830 N. Cage Blvd., Pharr, Texas 78577, and doing business in this Judicial District under the

name Hermes Music located at 9941 North Freeway, Houston, Texas. Service may be affected

upon Defendant Hermes Trading Co., Inc. through service of its registered agent A. C. Nelson,

3505 Boca Chica Blvd., Ste. 434, Brownsville, Texas 78521.

                                             II.
                                  JURISDICTION AND VENUE

        4.      The United States District Court for the Southern District of Texas has

jurisdiction over this action pursuant to the provisions of 28 U.S.C. §§ 1331, 1338(a) in that this

matter is a civil action arising under the Constitution, laws, or treaties of the United States,

namely, under the trademark laws of the United States, 15 U.S.C. § 1051, et seq. This action

involves federal trademark rights, federal Lanham Act violations, and other federal causes of

action. This Court has supplemental jurisdiction over Plaintiff’s state law claims under 28

U.S.C. § 1367(a).

        5.      Venue is proper in this Judicial District pursuant to 28 U.S.C. § 1391(b) in that

Defendants are corporations that reside and do business in this Judicial District, a substantial part

of the events or omissions giving rise to the claims occurred in this Judicial District, or a

substantial part of property that is subject of the action is situated in this Judicial District.

                                             III.
                                    FACTUAL BACKGROUND

Gabbanelli’s Trademarks

        6.      Gabbanelli owns U.S. Trademark Registration No. 1,996,735, issued August 27,

1996, for the mark GABBANELLI® for accordions and accordion accessories, namely,

accordion carrying cases and accordion shoulder straps.            A true and correct copy of U.S.

Trademark Registration No. 1,996,735 is attached hereto as Exhibit A and is incorporated herein

in its entirety. U.S. Trademark Registration No. 1,996,735 is valid, subsisting, and in full force

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and effect.    Accordions originating from Gabbanelli and bearing the mark GABBANELLI® are

referred to herein as “Authentic GABBANELLI® Branded Accordions.”

       7.       The mark GABBANELLI® is associated exclusively with Gabbanelli for use

with accordions. As a result of Gabbanelli’s long and widespread marketing of its products and

extensive advertising and other business generation efforts to promote the mark

GABBANELLI®, the mark GABBANELLI® has become well-known in the State of Texas and

throughout the United States as identifying Gabbanelli’s products and business. For example,

over the years Gabbanelli has extensively advertised its accordions bearing the mark

GABBANELLI® on the internet, through trade magazines, in music magazines, at trade shows,

and through retail outlets, including its store located in Houston, Texas. Customers and potential

customers in the United States and Texas have come to identify accordions bearing the mark

GABBANELLI® as originating with Gabbanelli.            Consequently, Gabbanelli has developed

substantial recognition and association of the mark GABBANELLI® with Gabbanelli by the

consuming public for accordions and Gabbanelli has acquired and enjoys a valuable reputation

and significant goodwill associated with the mark GABBANELLI® and accordions sold under

the mark GABBANELLI®.

       8.       Accordions bearing the mark GABBANELLI® are made in Italy to the

specifications and designs of Gabbanelli. Gabbanelli has promoted, advertised, offered for sale,

and sold to the public Authentic GABBANELLI® Branded Accordions for decades. Over the

years, Gabbanelli has maintained control over the quality of the Authentic GABBANELLI®

Branded Accordions by working closely with Italian manufacturers and craftsmen located in and

around the town of Castelfidardo, Italy. As a result of Gabbanelli’s quality control efforts and

other requirements it places on its manufacturers and craftsman so it can meet the production



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demands of its customers, at least 7 different manufacturers since 1973 have been terminated by

Gabbanelli because the quality and craftsmanship was unacceptable to Gabbanelli as failing to

meet Gabbanelli’s high standards, and/or failing to meet Gabbanelli’s other requirements for the

manufacture and delivery of the Authentic GABBANELLI® Branded Accordions.                    From

approximately    2001-2010,    Gabbanelli    obtained   Authentic    GABBANELLI®          Branded

Accordions from International Music Company S.r.L. which is partially owned by Michael

Gabbanelli, the current owner, President, and CEO of Plaintiff. International Music Company

S.r.L., however, was terminated as a vendor of Gabbanelli in 2010 due to quality control issues

and reliability issues. In July 2011, International Music Company S.r.L.’s shareholders voted to

dissolve International Music Company S.r.L. Accordingly, International Music Company S.r.L.

is currently in dissolution and does not conduct any operations or manufacture any accordions.

       9.       Prior to and during the dissolution of International Music Company S.r.L., a new

company, Industria Musicale Castelfidardo S.r.L, was formed in Italy by some of the same

people involved with the operations of International Music Company S.r.L. Industria Musicale

Castelfidardo S.r.L is not related to, associated with, sponsored by, approved by, affiliated with,

or otherwise connected to Gabbanelli.       Indeed, the individuals assembling accordions for

Industria Musicale Castelfidardo S.r.L were expressly repudiated by Gabbanelli due to their

failure to meet Gabbanelli’s high standards and Gabbanelli’s other requirements when they

worked for International Music Company S.r.L.

Defendants’ Trademark Infringement

       10.      Gabbanelli has learned that Defendants are currently obtaining accordions from a

third party that are manufactured in Italy and exported into the U.S. by Industria Musicale

Castelfidardo S.r.L. In promoting these accordions, Defendants, through their employees, advise



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customers and potential customers that these accordions are “the new Gabbanellis” made by the

“original Gabbanelli manufacturer.”

       11.     Moreover, on information and belief, prior to representing that the accordions

made by Industria Musicale Castelfidardo, S.r.L. were “the new Gabbanellis” made by the

“original Gabbanelli manufacturer,” Defendants and its employees were expressly advised that

they should not use the mark GABBANELLI® in this way to promote the accordions

manufactured and exported into the United States by Industria Musicale Castelfidardo S.r.L.

Thus, Defendants’ infringement is willful.

Defendants’ Trademark Dilution

       12.     Gabbanelli’s federal registration of its mark GABBANELLI® is prima facie

evidence of the distinctiveness of Gabbanelli’s mark GABBANELLI®.                    In addition,

Gabbanelli’s federal registration of Gabbanelli’s mark GABBANELLI® is incontestable under

the Lanham Act. Further, the long, continuous, and extensive use and promotion by Gabbanelli

of its mark GABBANELLI® in Texas and throughout the United States is evidence that the

consuming public has come to recognize the source of accordions bearing or displaying the mark

GABBANELLI® or promoted or advertised in connection with term “GABBANELLI” as being

associated with, sponsored by, affiliated with, or connected to Gabbanelli.               Indeed,

GABBANELLI® branded accordions have been featured in numerous other publications,

including newspaper articles and magazine articles, and in instruction videos and manuals

regarding how to play an accordion. Thus, Gabbanelli’s mark GABBANELLI® is a highly

distinctive mark.

       13.     Defendants’ use of the term “Gabbanelli” on or in connection with the promotion,

advertisement, sale, or offer for sale of the accordions manufactured and exported into the United



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States by Industria Musicale Castelfidardo, S.r.L lessens the distinctiveness of Gabbanelli’s mark

GABBANELLI®. In particular, Defendants use the term “Gabbanelli” in their promotions of the

accordions from Industria Musicale Castelfidardo, S.r.L. In so doing, Defendants are blurring

the distinction between the accordions of Gabbanelli and accordions of unauthorized,

unapproved, and unrelated third parties.     As a result, customers no longer know whether

accordions are Authentic GABBANELLI® Branded Accordions.                 Further, the ability of

Gabbanelli’s mark GABBANELLI® to immediately and positively connect its accordions with

the true Gabbanelli, as opposed to some other “Gabbanelli” located somewhere else in the world,

causes a lessening of the distinctiveness of its mark GABBANELLI®.

       14.     Thus, Defendants’ sales of the accordions made by Industria Musicale

Castelfidardo, S.r.L using the mark GABBANELLI® without Gabbanelli’s permission are

diluting the value of Gabbanelli’s mark GABBANELLI® and damaging the goodwill and high

quality reputation of Gabbanelli’s products branded with Gabbanelli’s mark GABBANELLI®.

       15.     Moreover, on information and belief, prior to representing that the accordions

from Industria Musicale Castelfidardo, S.r.L. were “the new Gabbanellis” made by the “original

Gabbanelli manufacturer,” Defendants and its employees were expressly advised that they

should not use the mark GABBANELLI® in this way to promote the accordions manufactured

and exported into the United States by Industria Musicale Castelfidardo, S.r.L.             Thus,

Defendants’ dilution of Gabbanelli’s mark GABBANELLI® is willful.

Defendants’ False Advertising and False Designation of Origin

       16.     In addition to infringing and diluting Gabbanelli’s mark GABBANELLI® as part

of their promotion of the accordions made by Industria Musicale Castelfidardo, S.r.L.,

Defendants’ statements to potential customers regarding the accordions are impliedly or



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expressly false.       Gabbanelli, not Industria Musicale Castelfidardo, S.r.L., is the “original

Gabbanelli manufacturer.” In addition, there are no “new Gabbanellis” being made by Industria

Musicale Castelfidardo, S.r.L. All Authentic GABBANELLI® Branded Accordions originate

with, and are approved by, Gabbanelli and no one else. Thus, through their use of the mark

GABBANELLI® as part of their promotion of the accordions from Industria Musicale

Castelfidardo, S.r.L., Defendants have engaged in false advertising and false designation of

origin.

          17.      Moreover, on information and belief, prior to representing that the accordions

from Industria Musicale Castelfidardo, S.r.L. were “the new Gabbanellis” made by the “original

Gabbanelli manufacturer,” Defendants and its employees were expressly advised that they

should not use the mark GABBANELLI® in this way to promote the accordions manufactured

and exported into the United States by Industria Musicale Castelfidardo, S.r.L.               Thus,

Defendants’ false advertising and false designation of origin of the accordions made by Industria

Musicale Castelfidardo S.r.L. are willful.

          18.      By including or using the mark GABBANELLI® in connection with the

promotion of accordions from Industria Musicale Castelfidardo, S.r.L., Defendants have violated

Gabbanelli’s trademark rights and engaged in unfair competition.             Moreover, Defendants’

infringing and competing products diminish the distinctiveness and value of Gabbanelli’s

federally       registered   mark   GABBANELLI®,        thereby   diluting     Gabbanelli’s     mark

GABBANELLI® in violation of the Lanham Act and the Texas Anti-Dilution Act.

          19.      In addition, by making false and misleading statements regarding the source of

the accordions, Defendants are engaging in false advertising and false designation of origin.




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       20.     Defendants have been, and currently are, aware of the valuable trademark rights

of Gabbanelli, as evidenced by Defendants’ promotion of the accordions from Industria Musicale

Castelfidardo, S.r.L. in a manner that expressly and impliedly associates the accordions with

Gabbanelli, and the fact that Defendants previously have been competitors of Gabbanelli for

many years. Further, on information and belief, Defendants were expressly advised not to use

the mark GABBANELLI® in the manner in which they have done. Therefore, on information

and belief, the above-described activities have been willful.

       21.     On information and belief, Defendants will continue to undertake such activities

which infringe and dilute the mark GABBANELLI® and engage in false advertising and false

designation of origin unless enjoined by the Court.

       22.     As a consequence of these activities and the impairment to Gabbanelli’s goodwill,

reputation, and customer base, Gabbanelli has been irreparably harmed to an extent not yet

determined and will continue to be irreparably harmed by such acts in the future unless

Defendants are immediately and, after trial, permanently enjoined by this Court from continuing

their unlawful activity.

                                            IV.
                                     CAUSES OF ACTION

                COUNT I - TRADEMARK INFRINGEMENT AND UNFAIR
                    COMPETITION UNDER THE LANHAM ACT

       23.     Gabbanelli repeats and realleges the allegations set forth in paragraphs 1-22.

       24.     Defendant’ improper use of the mark GABBANELLI® and sale of products by

using the mark GABBANELLI® is confusing to consumers and constitutes infringement of

Gabbanelli’s trademark rights in violation of the Lanham Trademark Act (“Lanham Act”).

Defendants’ unauthorized use of the mark GABBANELLI® violates Section 43 of the Lanham

Act which prohibits the use of a trademark in such a manner as is likely to cause confusion as to

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the source of the goods bearing the trademark. See 15 U.S.C. § 1125. Defendants’ use of the

mark GABBANELLI® also violates Section 32 of the Lanham Act prohibiting the unauthorized

use of a trademark which is likely to cause confusion. See 15 U.S.C. § 1114.

       25.     As set forth above, Defendants are selling, offering for sale, and promoting

accordions in connection with the mark GABBANELLI® and will continue to do so unless

enjoined from doing so by this Court.

       26.     Defendants’ infringement of the mark GABBANELLI® was done with the willful

intent to trade on Gabbanelli’s reputation and/or to cause infringement of the mark

GABBANELLI®.

       27.     Defendants’ unauthorized use of the mark GABBANELLI® in connection with

the accordions made by Industria Musicale Castelfidardo, S.r.L. was done with notice and full

knowledge that such use was not authorized or licensed by Gabbanelli and with notice and full

knowledge of Gabbanelli’s rights in the mark GABBANELLI®.

       28.     If Defendants are allowed to continue to engage in such infringing conduct, the

distinctiveness of the mark GABBANELLI® will be diminished or destroyed. Gabbanelli will

also lose its goodwill created by the mark GABBANELLI®. The continuing acts of Defendants

are jeopardizing the goodwill of Gabbanelli and its valuable mark GABBANELLI®, and such

acts have caused and are causing irreparable injury to Gabbanelli and to the consuming public.

Unless the acts of the Defendants complained of herein are enjoined by this Court, they will

continue to cause irreparable injury to Gabbanelli and to the public, for which there is no

adequate remedy at law.      Accordingly, Gabbanelli seeks injunctive relief prohibiting the

infringing acts by Defendants complained of herein.




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       29.     Additionally, or in the alternative, Gabbanelli seeks an accounting of Defendants’

profits and Gabbanelli’s actual and consequential damages and/or statutory damages resulting

from Defendants’ infringing acts.       Moreover, Gabbanelli seeks punitive, additional, and

enhanced damages from Defendants.

       30.     Gabbanelli also seeks a finding that Defendants are jointly and severally liable for

all damages, costs, and attorneys’ fees awarded to Gabbanelli as a result of Defendants’ violation

of Gabbanelli’s rights.

                      COUNT II - FALSE DESIGNATION OF ORIGIN

       31.     Gabbanelli repeats and realleges the allegations set forth in paragraphs 1-30.

       32.     In violation of 15 U.S.C. § 1125(a), Defendants use false and misleading

designations of origin in connection with the sale of the accordions made by Industria Musicale

Castelfidardo, S.r.L. by using the mark GABBANELLI® to pass-off these accordions as being

affiliated with, sponsored by, associated with, or connected to Gabbanelli.          For example,

Defendants use the mark GABBANELLI® when promoting the accordions from Industria

Musicale Castelfidardo, S.r.L. to customers and potential customers. None of these accordions,

however, originate from any source that is any way affiliated with, sponsored by, associated

with, or connected to Gabbanelli.

       33.     Gabbanelli has been, and is currently being, damaged by the false designations of

origin and passing-off by Defendants and has no adequate remedy at law. Defendants’ unlawful

conduct is willful and will continue to damage Gabbanelli unless enjoined by this Court.

       34.     Additionally, or in the alternative, Gabbanelli seeks an accounting of Defendants’

profits and Gabbanelli’s actual and consequential damages and/or statutory damages resulting

from Defendants’ acts. Moreover, Gabbanelli seeks punitive, additional, and enhanced damages

from Defendants, and that Defendants be found jointly and severally liable.

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       35.     Gabbanelli also seeks a finding that Defendants are jointly and severally liable for

all damages, costs, and attorneys’ fees awarded to Gabbanelli as a result of Defendants’ violation

of Gabbanelli’s rights.

                            COUNT III - FALSE ADVERTISING

       36.     Gabbanelli repeats and realleges the allegations set forth in paragraphs 1-35.

       37.     The representations made by Defendants set forth above, including but not limited

to the representations that the accordions from Industria Musicale Castelfidardo, S.r.L. are “the

new Gabbanellis” made by the “original Gabbanelli manufacturer” and, thus, are somehow

affiliated with, connected to, sponsored by, associated with, or approved by Gabbanelli in any

manner are all false. Thus, Defendants are liable for false advertising by making material

omissions and misrepresentations regarding the source and quality of the accordions made by

Industria Musicale Castelfidardo, S.r.L. in violation of Section 43(a)(1)(B) of the Lanham Act

[15 U.S.C. § 1125(a)(1)(B)].

       38.     The foregoing acts and conduct of Defendants, and in particular Defendants’

promotion of the accordions in a way suggesting that the accordions are affiliated with,

sponsored by, associated with, connected to, or approved by Gabbanelli, have caused, are likely

to cause, and in the future will cause confusion; have caused, are likely to continue to cause, and

in the future will cause mistake; and/or have deceived, are likely to continue to deceive, and in

the future will deceive, the trade and public into believing that the activities of Defendants are

those of Gabbanelli or are sponsored by, licensed by, approved by, endorsed by, affiliated with,

connected to, or are otherwise associated with Gabbanelli, thereby resulting in the

misappropriation of Gabbanelli’s goodwill and reputation which are associated with the Mark

GABBANELLI®.



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       39.     By reason of all the foregoing, Gabbanelli is being damaged by Defendants’ acts

in the manner set forth above and will continue to be damaged unless Defendants are enjoined

from continuing to commit the aforesaid acts. Gabbanelli has been and will continue to be

irreparably injured by the continuing acts of Defendants unless Defendants are enjoined from

continuing to commit such acts. Gabbanelli has no adequate remedy at law.

       40.     Additionally, or in the alternative, Gabbanelli seeks an accounting of Defendants’

profits and Gabbanelli’s actual and consequential damages and/or statutory damages resulting

from Defendants’ acts. Moreover, Gabbanelli seeks punitive, additional, and enhanced damages

from Defendants, and that Defendants be found jointly and severally liable.

       41.     Gabbanelli also seeks a finding that Defendants are jointly and severally liable for

all damages, costs, and attorneys’ fees awarded to Gabbanelli as a result of Defendants’ violation

of Gabbanelli’s rights.

                      COUNT IV - TRADEMARK DILUTION UNDER
                        THE LANHAM ACT AND TEXAS LAW

       42.     Gabbanelli repeats and re-alleges the allegations set forth in paragraphs 1-41.

       43.     The facts set out above demonstrate that Defendants are diluting the exclusivity

and distinctiveness of Gabbanelli’s federally registered mark GABBANELLI® in violation of

the Lanham Act [15 U.S.C. § 1125(c)] and the Texas Anti-Dilution Act [TEX. BUS. & COM.

CODE § 16.103].       Defendants’ unauthorized use of Gabbanelli’s mark GABBANELLI®

constitutes a dilution of Gabbanelli’s mark GABBANELLI® and injures Gabbanelli’s business

reputation, in violation of 15 U.S.C. § 1125(c) and TEX. BUS. & COM. CODE § 16.103.

       44.     Defendants’ promotion, offer for sale, and sale of accordions from Industria

Musicale Castelfidardo, S.r.L. in commerce dilutes the distinctive quality of Gabbanelli’s mark




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GABBANELLI®, and was done with the willful intent to trade on Gabbanelli’s reputation

and/or to cause dilution of Gabbanelli’s mark GABBANELLI®.

       45.     Defendants’ unauthorized use of Gabbanelli’s mark GABBANELLI® in

connection with the accordions from Industria Musicale Castelfidardo, S.r.L. was done with

notice and full knowledge that such use was not authorized or licensed by Gabbanelli, and with

notice and full knowledge of Gabbanelli’s exclusive rights in Gabbanelli’s mark

GABBANELLI®.

       46.     As a result of the aforesaid dilution by Defendants, Gabbanelli has suffered, and

is suffering, injury and damage in an amount yet to be determined. Upon information and belief,

the acts of dilution by Defendants have resulted in and are currently resulting in substantial

unjust profits and unjust enrichment on the part of Defendants in an amount yet to be

determined. Gabbanelli seeks injunctive relief to prevent this type of injury from continuing.

Additionally, or in the alternative, Gabbanelli seeks an accounting of Defendants’ profits and

Gabbanelli’s actual and consequential damages and/or statutory damages resulting from

Defendants’ acts. Moreover, Gabbanelli seeks punitive, additional, and enhanced damages from

Defendants.

       47.     Gabbanelli also seeks a finding that Defendants are jointly and severally liable for

all damages, costs, and attorneys’ fees awarded to Gabbanelli as a result of Defendants’ violation

of Gabbanelli’s rights.

                     COUNT V - COMMON LAW TRADEMARK AND
                          TRADE NAME INFRINGEMENT

       48.     Gabbanelli repeats and re-alleges the allegations set forth in paragraphs 1-47.

       49.     Gabbanelli has built up valuable goodwill in the mark GABBANELLI® and its

trade name Gabbanelli.


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       50.     With full knowledge of the fame of the mark GABBANELLI® and Gabbanelli’s

trade name, Defendants have traded, and continue to trade, on the goodwill associated with the

mark GABBANELLI® and Gabbanelli’s trade name, and have misled the public into assuming

that there is a connection between the Gabbanelli and the accordions from Industria Musicale

Castelfidardo, S.r.L.

       51.     Defendants’ acts of trademark and trade name infringement cause confusion,

mislead, and deceive the pubic as to the source of the accordions from Industria Musicale

Castelfidardo, S.r.L., permit Defendants to pass-off these accordions as Gabbanelli’s products,

and falsely suggest a connection between these accordions and Gabbanelli and, unless restrained

by this Court, will continue to do so, in violation of the common law of the State of Texas, and to

the detriment of Gabbanelli and the unjust enrichment of Defendants.

       52.     Defendants’ acts of trademark and trade name infringement have been done

willfully and with the intent to cause confusion among customers.

       53.     Defendants’ acts of trademark and trade name infringement have caused and will

continue to cause Gabbanelli’s irreparable harm unless restrained by this Court.

       54.     Gabbanelli is without an adequate remedy at law.

       55.     The continuing acts of Defendants are jeopardizing the goodwill of Gabbanelli

and its valuable mark GABBANELLI®, and such acts have caused and will continue to cause

irreparable injury to Gabbanelli and to the consuming public. Unless the acts of the Defendants

complained of herein are enjoined by this Court, they will continue to cause irreparable injury to

Gabbanelli and to the public, for which there is no adequate remedy at law. Additionally, or in

the alternative, Gabbanelli seeks an accounting of Defendants’ profits and Gabbanelli’s actual

and consequential and/or statutory damages as a result of Defendants’ infringing acts which have



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resulted in confusion among the public. Moreover, Gabbanelli seeks punitive and enhanced

damages for Defendants’ willful conduct and that Defendants be found jointly and severally

liable for all damages, costs, and attorneys’ fees awarded to Gabbanelli as a result of Defendants’

violation of Gabbanelli’s rights.

                   COUNT VI - REQUEST FOR MONETARY RELIEF,
                   TREBLE DAMAGES AND ATTORNEYS’ FEES AND
                        COSTS AGAINST ALL DEFENDANTS

       56.     Gabbanelli repeats and realleges the allegations set forth in paragraphs 1-55.

       57.     The acts of Defendants complained of above have resulted in trademark

infringement and unfair competition. Accordingly, pursuant to 15 U.S.C. § 1117(a), Gabbanelli

is entitled to recover 1) Defendants’ profits; 2) any damages sustained as a result of Defendants’

infringing acts; and 3) the costs associated with these causes of action. In addition, or in the

alternative, Gabbanelli is entitled to recover statutory damages pursuant to 15 U.S.C. § 1117(c).

       58.     Moreover, Gabbanelli is entitled to an award of treble damages, as well as an

award of punitive damages, pursuant to 15 U.S.C. § 1117(b) as a result of the extenuating

circumstances of this case, Defendants’ intentional use of the mark GABBANELLI®, and

Defendants’ gross, wanton, and/or willful conduct.

       59.     Furthermore, as a result of Defendants’ actions, Gabbanelli has been required to

retain the services of counsel to represent it in this matter, and it has been forced to incur and is

presently incurring attorneys’ fees in order to enforce its trademark and trade name rights. These

fees and expenses are necessary and reasonable in order to prosecute this matter. Accordingly,

Gabbanelli requests that it be granted an award of attorneys’ fees and costs as a result of

Defendants’ actions, and that Defendants be found jointly and severally liable for all such

damages, fees, and costs.



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                                DEMAND FOR JURY TRIAL

       60.     Gabbanelli demands a trial by jury on all claims and issues.



                                CONCLUSION AND PRAYER

       WHEREFORE, Gabbanelli Accordions & Imports, L.L.C. prays for entry of judgment:

       a.      finding that Defendants Hermes International, Inc. and Hermes Trading Co., Inc.
               have willfully infringed U.S. Trademark Registration No. 1,996,735 and
               Gabbanelli Accordions & Imports, L.L.C.’s common law trademark rights in the
               mark GABBANELLI®;

       b.      finding that Defendants have willfully engaged in false advertising and false
               designation of origin by falsely and intentionally misleading consumers by
               directly or indirectly representing that infringing products are endorsed by,
               sponsored by, affiliated with, associated with, or connected to Gabbanelli
               Accordions & Imports, L.L.C.;

       c.      finding that Defendants have willfully diluted the goodwill associated with the
               mark GABBANELLI®;

       d.      finding that Defendants have engaged in unfair competition;

       e.      enjoining Defendants, their officers, directors, agents, employees, representatives,
               successors, assigns, if any, and those in privity or concert with them from further
               acts that would amount to: (i) infringement of U.S. Trademark Registration No.
               1,996,735; (ii) infringement of Gabbanelli Accordions & Imports, L.L.C.’s
               common law trademark rights in the mark GABBANELLI®; (iii) false
               advertising; (iv) false designation of origin; (v) dilution of Gabbanelli Accordions
               & Imports, L.L.C.’s goodwill associated with the mark GABBANELLI®; and/or
               (vi) unfair competition;

       f.      awarding Gabbanelli Accordions & Imports, L.L.C. all damages caused by the
               acts of Defendants and all profits of Defendants from acts complained of, and/or
               all costs to Gabbanelli Accordions & Imports, L.L.C. caused by Defendants’
               activities complained of herein, and finding Defendants jointly and severally
               liable for all such damages;

       g.      trebling the damages and profits awarded to Gabbanelli Accordions & Imports,
               L.L.C. as authorized by 15 U.S.C. § 1117;

       h.      granting Gabbanelli Accordions & Imports, L.L.C. pre-judgment and post-
               judgment interest on the damages caused to Gabbanelli Accordions & Imports,


HOU407859669                                    16
     Case 4:13-cv-02044 Document 1 Filed in TXSD on 07/12/13 Page 17 of 17



               L.L.C. by reasons of Defendants’ activities complained of herein at the highest
               rates allowed by law;

       i.      finding that this is an exceptional case and awarding Gabbanelli Accordions &
               Imports, L.L.C. its reasonable and necessary attorneys’ fees in accordance with 15
               U.S.C. § 1117;

       j.      awarding costs to Gabbanelli Accordions & Imports, L.L.C.;

       k.      finding Defendants jointly and severally liable for all damages, costs, and fees
               awarded herein; and

       l.      awarding Gabbanelli Accordions & Imports, L.L.C. such other and further relief,
               at law or in equity, as the Court may deem just and proper under the
               circumstances.

                                                    Respectfully submitted,

                                                    GREENBERG TRAURIG LLP

                                                    By: /Anthony F. Matheny/
                                                       Anthony Matheny
                                                       Attorney-In-Charge
                                                       Texas State Bar No. 24002543
                                                       S.D. Texas Admission No. 303157
                                                       1000 Louisiana, Suite 1700
                                                       Houston, Texas 77002
                                                       (713) 374-3583 (Telephone)
                                                       (713) 754-7583 (Fax)
Of Counsel:

Mark Chretien
Texas State Bar No. 24036364
S.D. Texas Admission No. 36313
Ben D. Tobor
Texas State Bar No. 20050900
S.D. Texas Admission No. 5254
GREENBERG TRAURIG LLP
1000 Louisiana, Suite 1700
Houston, Texas 77002
(713) 374-3528 (Telephone)
(713) 754-7528 (Fax)

                                                    ATTORNEYS FOR PLAINTIFF
                                                    GABBANELLI ACCORDIONS &
                                                    IMPORTS, L.L.C.


HOU407859669                                   17

				
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