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					                          UNITED STATES DISTRICT COURT
                      FOR THE WESTERN DISTRICT OF MISSOURI
                               ST. JOSEPH DIVISION

                                          (Electronically Filed)

PHILLIPS 66 COMPANY                                )
   A Delaware Corporation                          )
   P.O. Box 4428                                   )
   Houston, Texas 77210                            )
                                                   )
                             Plaintiff,            )
                                                   )
v.                                                 )       Civil Action No. ________________
                                                   )
GARFIELD-66, LLC                                   )
  A Missouri Limited Liability Company             )      COMPLAINT FOR INJUNCTIVE
  1029 Garfield Avenue                             )    RELIEF AND MONETARY DAMAGES
  St. Joseph, Missouri 64503                       )
                                                   )
     Serve: John Harvey                            )
            Registered Agent for Service           )
            of Process                             )
            601 N. Noyes                           )
            St. Joseph, Missouri 64506             )
                                                   )
                                                   )
                           Defendant.              )

                                       COMPLAINT
                                 (JURY TRIAL DEMANDED)

        Plaintiff, Phillips 66 Company (“Phillips 66” or “Plaintiff”), by counsel, for its Complaint

against Defendant, Garfield-66, LLC (“Garfield 66” or “Defendant”), alleges as follows:

                                          INTRODUCTION

        1.      This is an action for trademark infringement under the Lanham Act, 15 U.S.C.

§1114; unfair competition and false designation of origin under the Lanham Act, 15 U.S.C. §

1125(a); trademark dilution under the Lanham Act, 15 U.S.C. § 1125(c); trademark infringement,

unfair competition and unjust enrichment under Missouri common law; and trademark dilution




             Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 1 of 22
and unfair competition under Missouri Law (Mo. Rev. Stat. § 417.061). Plaintiff is seeking

monetary damages, attorneys’ fees, and permanent injunctive relief preventing continuing acts of

infringement, unfair competition and dilution on the part of Defendant.

                                         THE PARTIES

       2.      Phillips 66 is a corporation organized and existing under the laws of Delaware,

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

       3.      Upon information and belief, Garfield 66 is a limited liability company organized

and existing under the laws of Missouri, with its principal place of business located at 1029

Garfield Avenue, St. Joseph, Missouri 64503.

                                 JURISDICTION AND VENUE

       4.      This Court has subject matter jurisdiction by virtue of the fact that this is a civil

action under the Lanham Act, 15 U.S.C. § 1051 et seq., jurisdiction being conferred in

accordance with 15 U.S.C. §1121 and 28 U.S.C. § 1338(a) and (b); and with respect to certain

claims, supplemental jurisdiction under 28 U.S.C § 1367.

       5.      The Court also has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)

because the parties are citizens of different states and the amount in controversy exceeds

$75,000.00, exclusive of interest and costs.

       6.      Venue is proper in this Court under 28 U.S.C. §§ 1391(b) and (c), because

Defendant’s principal place of business is located within this District and a substantial part of the

events or omissions giving rise to the claims occurred within this District.




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            Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 2 of 22
                             FACTS COMMON TO ALL CLAIMS

The Plaintiff and its Famous Marks

       7.      For nearly 90 years, Phillips 66, and its predecessors in interest, have engaged

directly, and through licensees, in the world-wide manufacture, marketing, distribution and sale

of high quality petroleum products such as gasoline, diesel, jet fuel, lubricants, motor fuels and

other related products under the well-known brand PHILLIPS 66. Phillips 66 has over 13,500

employees worldwide and, as of June 30, 2013, held over $50 billion in worldwide assets.

Moreover, Phillips 66 had over $179 billion in sales and operating revenue in 2012. Phillips 66

is ranked number 4 on the Fortune 500 list.

       8.      Phillips 66 and its predecessors have developed an extensive multi-state network

of licensees and sub-licensees who manufacture, market, distribute and sell Phillips 66

authorized products and services throughout the United States in approximately 7,500 branded

stations. In addition to automotive gasoline and diesel fuel, the Phillips 66 produces aviation

fuels and markets them through independent marketers and dealers at approximately 900 Phillips

66 branded operations facilities – which is the largest branded network in the U.S. general

aviation industry. Further, Phillips 66 is one of the largest finished lubricant suppliers in the U.S.

Phillips 66 manages over 18,000 miles of crude oil, raw natural gas liquid, natural gas, and

petroleum product pipeline systems.

       9.      In 2012, Phillips 66 had over 1.1 million barrels per day in gasoline sales, 985,000

barrels per day in distillate sales, and over 2.1 million barrels per day in petroleum product

pipeline sales. Phillips 66 branded products have been recognized as “TOP TIER” by leading

automakers.




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            Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 3 of 22
       10.    Phillips 66 is the owner of all right, title and interest in and to certain trademarks

and other assets as set forth herein, including the following trademarks and/or service marks

registered with the United States Patent & Trademark Office (“USPTO”):


       MARK             REG. NO.       REG. DATE         GOODS/SERVICES                    OWNER

66                       0255508       April 23, 1929   Class 4: gasolines           Phillips 66 Company

PHILLIPS 66              0255501       April 23, 1929   Class 4: gasolines           Phillips 66 Company

PHILLIPS 66 & Design     0570821       February 17,     Class 37: services           Phillips 66 Company
                                          1953          rendered to automobiles,
                                                        trucks, and other
                                                        automotive vehicles;
                                                        namely, lubrication,
                                                        cleaning and maintaining
                                                        cooling systems,
                                                        washing, waxing,
                                                        polishing, repairing,
                                                        battery charging, tire
                                                        repairing and changing,
                                                        air cleaner maintenance
                                                        and repair
PHILLIPS 66 & Design     0711098       February 14,     Class 4: gasoline, diesel    Phillips 66 Company
                                          1961          fuel, lubricating
                                                        purposes, kerosene,
                                                        tractor fuel oil, heating
                                                        oil, dripless penetrating
                                                        oil




PHILLIPS 66 & Design     1923166      October 3, 1995   Class 1: petrochemicals      Phillips 66 Company
                                                        and specialty chemicals
                                                        derived from petroleum,
                                                        synthetic resins and
                                                        catalyst, all for
                                                        individual use;
                                                        Class 4: petroleum, fuels,
                                                        petroleum derived oils,
                                                        greases and lubricants,
                                                        all for the aviation or
                                                        industrial trade; and
                                                        automotive oils, greases
                                                        and lubricants




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          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 4 of 22
PHILLIPS 66 & Design   3129945   August 15, 2006   Class 37: maintenance        Phillips 66 Company
                                                   and fueling services for
                                                   automotive vehicles at
                                                   service stations and for
                                                   airplanes at airports




66 & Design            0627025    May 15, 1956     Class 25: wearing            Phillips 66 Company
                                                   apparel-namely, mens
                                                   shirts and trousers,
                                                   overalls or one piece
                                                   suits, coats, sweaters,
                                                   jackets and caps

66 & Design            0646273    June 4, 1957     Class 1: radiator stop       Phillips 66 Company
                                                   leak and anti-freeze,
                                                   hydraulic brake fluids,
                                                   hydrocarbons such as
                                                   methane, ethane, butane,
                                                   ethylene, mercaptans,
                                                   sulfides, natural gas, and
                                                   solvents
                       0646274    June 4, 1957     Class 1: radiator stop       Phillips 66 Company
                                                   leak and anti-freeze,
                                                   hydraulic brake fluids,
                                                   hydrocarbons such as
                                                   methane, ethane, butane,
                                                   ethylene, mercaptans,
                                                   sulfides, natural gas, and
                                                   solvents
                       0711433    February 21,     Class 4: Gasoline, Diesel    Phillips 66 Company
                                     1961          Fuel, Lubricating Motor
                                                   Oils, Grease Compounds
                                                   for Lubricating Purposes,
                                                   Kerosene, Tractor Fuel
                                                   Oil, Heating Oil,
                                                   Dripless Penetrating
                                                   Oil((, and Top Cylinder
                                                   Lubricating Oil)
PHILLIPS 66 & Design   0758459    Oct. 15, 1963    Class 25: Wearing            Phillips 66 Company
                                                   Apparel-Namely, Men's
                                                   Shirts and Trousers,
                                                   Overalls or One Piece
                                                   Suits, Coats, Jackets and
                                                   Caps




PHILLIPS 66 & Design   0758641    Oct. 22, 1963    Class 1: Radiator Stop       Phillips 66 Company



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          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 5 of 22
                                                 Leak, Brake Fluid,
                                                 Lighter Fluid,
                                                 Antifreeze, [
                                                 Insecticides, ]
                                                 Hydrocarbons, Such as
                                                 Methane, Ethane,
                                                 Butane, Ethylene, etc.,
                                                 Mercaptans, Sulfides,
                                                 Natural Gas, and
                                                 Solvents
PHILLIPS 66 & Design   2855920   June 22, 2004   Class 9: Magnetically       Phillips 66 Company
                                                 encoded cards, namely,
                                                 prepaid/prestored point
                                                 of sale purchase cards,
                                                 credit cards and debit
                                                 cards, and telephone
                                                 calling cards



PHILLIPS 66 & Design   2857872   June 29, 2004   Class 36:                   Phillips 66 Company
                                                 Prepaid/prestored point
                                                 of sale purchase card
                                                 services, credit card and
                                                 debit card services, and
                                                 telephone calling card
                                                 services




PHILLIPS 66            2857873   June 29, 2004   Class 36:                   Phillips 66 Company
                                                 Prepaid/prestored point
                                                 of sale purchase card
                                                 services, credit card and
                                                 debit card services, and
                                                 telephone calling card
                                                 services
PHILLIPS 66            2904680   Nov. 23, 2004   Class 9: Magnetically       Phillips 66 Company
                                                 encoded cards, namely,
                                                 prepaid/prestored point
                                                 of sale purchase cards,
                                                 credit cards and debit
                                                 cards, and telephone
                                                 calling cards
PHILLIPS 66            4227585   Oct. 16, 2012   Class 40: oil refining;     Phillips 66 Company
                                                 fuel refining
PHILLIPS 66            4296337   Feb. 26, 2013   Class 4: gasoline, diesel   Phillips 66 Company
                                                 fuel, kerosene, aviation
                                                 fuel




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          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 6 of 22
PHILLIPS 66               4296338      Feb. 26, 2013   Class 25: headgear,            Phillips 66 Company
                                                       namely, hates, caps,
                                                       visors, knit stocking
                                                       caps; clothing, namely, t-
                                                       shirts, polo shirts, shirts,
                                                       sweatshirts, wind
                                                       resistant jackets, parkas,
                                                       jackets, and vests
PHILLIPS 66 & Design      2982076       Aug. 2, 2005   Class 28: toys, namely,        Phillips 66 Company
                                                       non-riding transportation
                                                       toys, yo-yos




       11.     A copy of the relevant certificates of registration as issued by the USPTO, along

with relevant TESS printouts from the USPTO website, are attached hereto as collective Exhibit

A (“the PHILLIPS 66 Marks”).

       12.     All of the foregoing registered marks are valid and most have become

incontestable pursuant to 15 U.S.C. § 1065.

       13.     At all times relevant hereto, Phillips 66 has been engaged in refining and selling

gasoline, and related products and services as set forth above, under the PHILLIPS 66 Marks to

the public and licensed distributors and retailers. Phillips 66 enforces, and its predecessors

enforced, strict specifications and quality standards for gasoline and other products

manufactured, marketed, distributed and sold under the PHILLIPS 66 Marks.

       14.     Phillips 66 and its predecessors began using the name and mark “Phillips 66”

and/or “66” in connection with gasoline and related products and services (as set forth above)

since at least as early as 1927 when its first service station was opened in Wichita, Kansas. Soon

thereafter, in 1930, Phillips 66 introduced its famous “shield logo”, as depicted above. Later, in




                                      7
          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 7 of 22
1959, Phillips 66 introduced its famous shield logo in its famous red, white and black color

scheme. Phillips 66 has since continuously used the various PHILLIPS 66 Marks in connection

with gasoline, motor fuels, lubricants, and automotive related goods and services (as further set

forth above) throughout the United States, including the state of Missouri. Through and as a

result of this longtime use of the PHILLIPS 66 Marks, and by virtue of extensive and significant

advertising of the PHILLIPS 66 Marks by Phillips 66 and its predecessors, the PHILLIPS 66

Marks are well known to the public in Missouri and throughout the United States and identify

Phillips 66 as the source of high quality automotive goods and services. The PHILLIPS 66

Marks have thereby acquired substantial goodwill and value to Phillips 66. A photograph of a

service station showing present use of the PHILLIPS 66 Marks is provided herewith as Exhibit

B.

          15.   The PHILLIPS 66 Marks are well-known and recognized throughout the United

States. The PHILLIPS 66 Marks have achieved widespread public recognition and acceptance

throughout the United States in connection with Phillips 66’s goods and services (as set forth

above).

          16.   The PHILLIPS 66 Marks are inherently distinctive and/or have acquired

distinctiveness as a result of the longstanding, widespread use of the PHILLIPS 66 Marks

throughout the United States.

The Defendant and its Unlawful Actions

          17.   Defendant currently operates a gas/service station in St. Joseph, Missouri under

the name “Garfield 66”. Defendant uses the name “Garfield 66”, the number “66” and the

following logo in signs and advertising material for the station:




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            Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 8 of 22
       18.     Additional photographs and images of Defendant’s station are attached hereto as

collective Exhibit C.

       19.     On information and belief, Defendant has operated its service station for some

time and, at one time years ago, became a licensed, authorized dealer for Phillips 66 branded

products. As part of this relationship, Defendant entered into a “Dealer Agreement” with Phillips

66 distributor, Frazier Oil. The Dealer Agreement, inter alia, granted Defendant a sub-license to

use the PHILLIPS 66 Marks under strict guidelines and quality control standards.

       20.     However, Phillips 66, through Frazier Oil, terminated the Dealer Agreement with

Defendant. Nonetheless, without Phillips 66’s knowledge, Defendant continued to sell unbranded

Phillips 66 fuel, supplied through Frazier Oil, until June 2013.

       21.     In October, 2012, Phillips 66 learned that Defendant was using the name

“Garfield 66” and/or the term “66” and/or a shield logo without its permission and contacted

Defendant, through Frazier Oil representatives, and requested that Defendant cease and

discontinue all further use of the PHILLIPS 66 Marks and/or otherwise discontinue all use the

terms “66”, “Phillips 66” and/or the shield logo in any fashion.




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          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 9 of 22
       22.     In and around December, 2012, Defendant represented expressly to Frazier Oil

that it was in the process of redesigning replacement signs and/or branding and would

discontinue use of the PHILLIPS 66 Marks by April 2013.

       23.     Defendant did not discontinue using the PHILLIPS 66 Marks, and/or marks

confusingly similar thereto, by April 2013.

       24.     Due to Defendant’s lack of a response to more informal communications,

Phillips 66 sent Defendant a formal cease and desist letter on July 22, 2013 – further requesting

that Defendant immediately cease all use and remove and destroy all displays of Defendant’s

Garfield 66 shield signage located at its service station. Phillips 66 further demanded that

Defendant remove all pump decals and signage displaying the number “66”, or any other mark

owned by Phillips 66; cease all use by employees wearing “66” branded apparel at the service

station; discontinue all use of the mark “66” and/or shield with the element “66” in connection

with all promotions and marketing efforts related to the Defendant’s service station, and identify

all other properties where fuel was being sold by Defendant using the term “66” and/or a shield

logo or design and/or otherwise using any names, symbols or devices which could be considered

confusingly similar to the PHILLIPS 66 Marks. The June 22 letter further requested a response

from Defendant by August 5, 2013. A true and correct copy of the June 22, 2013 letter is attached

hereto as Exhibit D.

       25.     The Defendant did not respond to the June 22, 2013 cease and desist letter.

       26.     Still having no response to its cease and desist demands, Phillips 66, through

counsel, further contacted Defendant by sending a second cease and desist letter on August 15,

2013. Phillips 66 again demanded that Defendant cease all use of any name, symbol or device

that is likely to cause confusion with the PHILLIPS 66 marks. This letter further requested a


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         Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 10 of 22
response from Defendant by August 23, 2013. A true and correct copy of the August 15, 2013

letter is attached hereto as Exhibit E.

       27.     Defendant did not respond on or before August 23, 2013 so counsel for Phillips

66 sent a follow up letter on August 26, 2013 – requesting an immediate response to the previous

communications. A true and correct copy of the August 15, 2013 letter is attached hereto as

Exhibit F.

       28.     The Defendant did not respond to any of Phillips 66’s communications.

       29.     Notwithstanding Phillips 66’s demands, as of the filing of this Complaint,

Defendant continues to use the names “Garfield 66” and/or “66” and/or a logo/design which

incorporates the number “66” within a shield design with white lettering on a red background

surrounded by a white border (as depicted above), in connection with its gas/service station.

       30.     Defendant does not have permission or authorization from Phillips 66 to use the

PHILLIPS 66 Marks, the element “66”, a shield logo which incorporate the element “66”, or any

name, symbol, or device which is confusingly similar thereto, in connection with Defendant’s

service station and/or in connection with the sale of any goods or services.

       31.     Defendant uses the PHILLIPS 66 Marks, and/or the element “66”, and/or a shield

logo which incorporate the element “66”, and/or any name, symbol, or device which is

confusingly similar to the PHILLIPS 66 Marks, in direct competition with Phillips 66’s, and/or

authorized Phillips 66 retailers and/or distributors’, goods and services.

       32.     Defendant’s use of the Garfield 66 name and shield logo and/or the element “66”

is likely to cause confusion as to the source of the goods and services associated with the

PHILLIPS 66 Marks, is likely to suggest sponsorship of the services and/or affiliation between

Phillips 66 and Defendant and/or is likely to cause dilution of the PHILLIPS 66 Marks.


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          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 11 of 22
                                           COUNT I
                    Federal Trademark Infringement of a Registered Trademark
                                       (15 U.S.C. § 1114)

        33.     Phillips 66 repeats and realleges paragraphs 1 through 32 of this Complaint as if

set forth herein.

        34.     Defendant’s use of the trade name and mark “Garfield 66” and/or “66” and/or a

shield logo incorporating the element “66”, in interstate commerce without the consent of

Phillips 66 for the purpose of selling goods and providing services competitive with or related to

those sold by Phillips 66 under the PHILLIPS 66 Marks (including but not limited to U.S. Reg.

No.’s: 255,508; 255,501; 570,821; 711,098; 1,923,166; and 3,129,945), creates the same or

similar commercial impression with the PHILLIPS 66 Marks and is likely to cause confusion, or

to cause mistake or to deceive the public. By promoting and/or selling goods and services in

connection with the infringing designation, Defendant has infringed Phillips 66’s federally

registered PHILLIPS 66 Marks (as set forth herein) in interstate commerce in violation of Section

32(1) of the Lanham Act, 15 U.S.C. § 1114(1).

        35.     Defendant’s use of “Garfield 66” and/or “66” and/or a shield logo incorporating

the element “66” in connection with its business is without permission from Phillips 66.

        36.     By reason of Defendant’s acts alleged herein, Phillips 66 has and will suffer

damage to its business, reputation and goodwill and the loss of sales and profits Phillips 66

would have made but for Defendant’s infringing acts.

        37.     Defendant’s trademark infringement is damaging to Phillips 66’s goodwill and

reputation; creates a likelihood of injury to Phillips 66’s business and product reputation; and

otherwise unfairly competes with Phillips 66. If such actions are continued by Defendant, they




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          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 12 of 22
will cause irreparable and substantial damage to Phillips 66 and will result in Defendant being

unjustly enriched and unlawfully deriving profits and gains.

        38.       Defendant’s ongoing violations of §32 of the Lanham Act against Phillips 66 are

committed willfully, intentionally, knowingly and in bad faith.

        39.       Defendant’s aforementioned actions have caused and will continue to cause

irreparable injury to Phillips 66 if Defendant is not restrained by this Court from violations of

Phillips 66’s rights. Phillips 66 has no adequate remedy at law and therefore seeks injunctive

relief from this Court pursuant to 15 U.S.C. § 1116 and such monetary relief to which it is

entitled pursuant to 15 U.S.C. § 1117, including treble actual damages and reasonable attorneys’

fees and costs.

                                           COUNT II
                    Federal Unfair Competition and False Designation of Origin
                                      (15 U.S.C. § 1125(a))

        40.       Phillips 66 repeats and realleges paragraphs 1 through 39 of this Complaint as if

set forth herein.

        41.       The aforesaid acts of Defendant, including, but not limited to, the use of the

PHILLIPS 66 Marks and/or the name and mark “Garfield 66” and/or “66” and/or a shield logo

incorporating the element “66”, in connection with the distribution, marketing and sale of

Defendant’s goods and services, constitute the use of words, terms, names, symbols and devices

and combinations thereof; false designations of origin; and false and misleading representations

of fact that are likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,

connection or association of Defendant with Phillips 66, or as to the origin, sponsorship or

approval of Defendant’s goods and services, or other commercial activities by Phillips 66.




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          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 13 of 22
        42.       The aforesaid acts of Defendant constitute the use of words, terms, names,

symbols and devices and combinations thereof; false designations of origin; and false and

misleading representations of fact that in commercial advertising or promotion, misrepresent the

nature, characteristics or qualities of Defendant’s goods and services, or other commercial

activities.

        43.       Defendant’s use of the PHILLIPS 66 Marks and/or the name and mark “Garfield

66” and/or “66” and/or a shield logo incorporating the element “66” in connection with the

distribution, marketing and sale of Defendant’s goods and services constitutes false designation

of origin, false and misleading descriptions and representations in violation of Section 43(a) of

the Lanham Act, 15 U.S.C. § 1125(a).

        44.       The Defendant is passing off its products as having come from Phillips 66, or

having been endorsed, affiliated, sponsored by, or endorsed by Phillips 66. The Defendant is

creating a false designation of origin and is deceiving and confusing customers through the

violation of the rights of Phillips 66 as set forth herein.

        45.       The aforesaid acts of Defendant were knowing, deliberate, willful, intended to

cause mistake or to deceive, and in disregard of Phillips 66’s rights.

        46.       Defendants’ continued unauthorized use of the PHILLIPS 66 Marks and/or the

name and mark “Garfield 66” and/or “66” and/or a shield logo incorporating the element “66”, in

advertising, in interstate commerce, for a competing service station, infringes upon Phillips 66’s

goodwill, reputation, and trademark rights; creates a likelihood of injury to Phillips 66’s business

reputation; causes a likelihood of confusion as to the affiliation, connection, or association of

Defendant’s business with Phillips 66, and/or as to the origin, sponsorship, or approval of

Defendant’s goods and services, or commercial activities by Phillips 66; and otherwise unfairly


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              Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 14 of 22
competes with Phillips 66.     If such actions are continued, they will cause irreparable and

substantial damage to Phillips 66 and will result in Defendant being unjustly enriched and

unlawfully deriving profits and gains.

         47.    Defendant’s aforementioned actions have caused and will continue to cause

irreparable injury to Phillips 66 if Defendant is not restrained by this Court from violations of

Phillips 66’s rights. Phillips 66 has no adequate remedy at law and therefore seeks injunctive

relief from this Court under 15 U.S.C. § 1116 and such monetary relief to which it is entitled

pursuant to 15 U.S.C. § 1117, including treble actual damages, reasonable attorneys’ fees and

costs.

                                          COUNT III
                                  Federal Trademark Dilution
                                     (15 U.S.C. § 1125(c))

         48.    Phillips 66 repeats and realleges paragraphs 1 through 47 of this Complaint as if

set forth herein.

         49.    The PHILLIPS 66 Marks are strong and distinctive marks that have been in use

for many years and have achieved enormous and widespread public recognition.

         50.    The PHILLIPS 66 Marks are famous within the meaning of Section 43(c) of the

Lanham Act (15 U.S.C § 1125(c)).

         51.    Defendant’s use of the PHILLIPS 66 Marks and/or the name and mark “Garfield

66” and/or “66” and/or a shield logo incorporating the element “66”, without authorization from

Phillips 66, is diluting the distinctive quality of the PHILLIPS 66 Marks and decreasing the

capacity of such marks to identify and distinguish Phillips 66’s goods and services.




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           Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 15 of 22
        52.     Defendant has intentionally and willfully diluted and impaired the distinctive

quality of the PHILLIPS 66 Marks in violation of Section 43(c) of the Lanham Act (15 U.S.C. §

1125(c)).

        53.     Upon information and belief, Defendant has made and will continue to make

substantial profits and gains to which it is not otherwise entitled in law or equity.

        54.     Upon information and belief, Defendant intends to continue its infringing and

diluting acts, unless restrained by this Court.

        55.     Defendant’s acts have damaged and will continue to damage Phillips 66, and

Phillips 66 cannot be adequately compensated at law for this violation of Section 43(c) of the

Lanham Act.

                                      COUNT IV
                            Common Law Trademark Infringement

        56.     Phillips 66 repeats and realleges paragraphs 1 through 55 of this Complaint as if

set forth herein.

        57.     Phillips 66 owns all rights, title, and interest in and to the PHILLIPS 66 Marks,

including all common law rights in such marks.

        58.     Defendant, without authorization from Phillips 66, has used and is continuing to

use spurious designations that are identical to, substantially indistinguishable from, or

confusingly similar to the PHILLIPS 66 Marks.

        59.     The foregoing acts of Defendant are intended to cause, have caused, and are likely

to continue to cause confusion, mistake, and deception among consumers, the public, and the

trade as to whether Defendant’s goods and services originate from, or are affiliated with,

sponsored by, or endorsed by Phillips 66.




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            Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 16 of 22
        60.     Upon information and belief, Defendant has acted with knowledge of Phillips 66’s

ownership of the PHILLIPS 66 Marks and with deliberate intention or willful blindness to

unfairly benefit from the incalculable goodwill symbolized thereby.

        61.     Defendant’s acts constitute trademark infringement in violation of the common

law of the State of Missouri.

        62.     Upon information and belief, Defendant has made and will continue to make

substantial profits and/or gains to which it is not in law or equity entitled.

        63.     Upon information and belief, Defendant intends to continue its infringing acts,

unless restrained by this Court.

        64.     Defendant’s acts have damaged and will continue to damage Phillips 66, and

Phillips 66 has no adequate remedy at law.

                                       COUNT V
                                   Trademark Dilution
                          (Common Law and Mo. Rev. Stat. § 417.061)

        65.     Phillips 66 repeats and realleges paragraphs 1 through 64 of this Complaint as if

set forth herein.

        66.     The foregoing acts of Defendant constitute trademark dilution in violation of

Missouri common law and Mo. Rev. Stat. § 417.061.

        67.     The PHILLIPS 66 Marks are strong and distinctive marks that have been in use

for many years and have achieved enormous and widespread public recognition.

        68.     Through prominent, long, and continuous use in commerce, including commerce

within the State of Missouri, the PHILLIPS 66 Marks have become and continue to be famous

and distinctive.




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        69.     Defendant’s use of the PHILLIPS 66 Marks and/or the name and mark “Garfield

66” and/or “66” and/or a shield logo incorporating the element “66”, without authorization from

Phillips 66, is diluting the distinctive quality of the PHILLIPS 66 Marks and decreasing the

capacity of such marks to identify and distinguish Phillips 66 products and has caused a

likelihood of harm to Phillips 66’s business reputation.

        70.     Defendant has diluted the distinctive quality of the famous PHILLIPS 66 Marks.

        71.     Upon information and belief, Defendant has made and will continue to make

substantial profits and/or gains to which they are not in law or equity entitled.

        72.     Upon information and belief, Defendant intends to continue its infringing acts,

unless restrained by this Court.

        73.     Defendant’s acts have damaged and will continue to damage Phillips 66, and

Phillips 66 has no adequate remedy at law.

                                          COUNT VI
                                      Unfair Competition
                                    (Mo. Rev. Stat. § 417.061)

        74.     Phillips 66 repeats and realleges paragraphs 1 through 73 of this Complaint as if

set forth herein.

        75.     The foregoing acts of Defendant constitute unfair competition in violation of Mo.

Rev. Stat. § 417.061.

        76.     Upon information and belief, Defendant has made and will continue to make

substantial profits and/or gains to which they are not in law or equity entitled.

        77.     Upon information and belief, Defendant intends to continue its infringing acts,

unless restrained by this Court.




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          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 18 of 22
        78.     Defendant’s acts have damaged and will continue to damage Phillips 66, and

Phillips 66 has no adequate remedy at law.

                                        COUNT VII
                                Common Law Unfair Competition

        79.     Phillips 66 repeats and realleges paragraphs 1 through 78 of this Complaint as if

set forth herein.

        80.     The foregoing acts of Defendant constitute unfair competition in violation of the

common law of the State of Missouri.

        81.     Upon information and belief, Defendant has made and will continue to make

substantial profits and/or gains to which it is not in law or equity entitled.

        82.     Upon information and belief, Defendant intends to continue its acts of unfair

competition, unless restrained by this Court.

        83.     Defendant’s acts have damaged and will continue to damage Phillips 66, and

Phillips 66 has no adequate remedy at law.

                                          COUNT VIII
                                        Unjust Enrichment

        84.     Phillips 66 repeats and realleges paragraphs 1 through 83 of this Complaint as if

set forth herein.

        85.     The acts complained of above constitute unjust enrichment of Defendant at

Phillips 66’s expense, in violation of the common law of the State of Missouri.

                                      RELIEF REQUESTED

        WHEREFORE, Plaintiff, Phillips 66 Company, requests a judgment in its favor and

against Garfield-66, LLC ordering:




                                      19
          Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 19 of 22
       A.       That Judgment enter in favor of Plaintiff and against Defendant on Counts I

through VIII of the Complaint;

       B.       That Defendant, and each of its officers, directors, agents, servants, employees

and representatives, and those persons in active concert or participation with them or any of

them, be permanently enjoined and restrained from:

                (1)    Using on or in connection with the production, manufacture, advertising,

       signage, decals, employee uniforms, social media (e.g. Facebook and Yelp), online

       platforms, promotion, displaying for sale, offering for sale, sales or distribution of any

       products or services, or use as or part of any domain name, or for any commercial

       purposes whatsoever, the PHILLIPS 66 Marks or any variations thereof, including but not

       limited to the terms “Phillips” and/or “66” and/or “Garfield 66” and/or a shield

       logo/design which incorporates the element “66”, whether used as a solitary designation

       or in connection with any other designation or design, or any of Plaintiff’s trademarks or

       service marks, or any variations thereof or anything confusingly similar thereto;

                (2)    Representing by any means whatsoever, directly or indirectly, orally or

       written, or doing any other acts or things calculated or likely to cause confusion, mistake

       or to deceive consumers into believing that the Defendant’s products or services are those

       of Plaintiff, or that there is any affiliation or connection between Plaintiff or its products

       or services and Defendant or its products or services, and from otherwise unfairly

       competing with Plaintiff;

                (3)    Causing to be advertised, published or disseminated by any means any

       false or misleading statements as to the existence of any relationship between Defendant




                                        20
            Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 20 of 22
       and Plaintiff, or between any products or services of Defendant and any products or

       services of Plaintiff; and

                (5)      Committing any acts diluting the distinctive quality of the PHILLIPS 66

       Marks and decreasing the capacity of such marks to identify and distinguish Plaintiff’s

       products.

       C.       That Plaintiff recover its damages sustained as a result of Defendant’s trademark

infringement, unfair competition and false designation of origin, trademark dilution, and unjust

enrichment under federal, state and common law, together with an accounting of Defendant’s

profits arising from such activities, and that the Court exercise its discretion and enter a judgment

for such additional sums as the Court shall find to be just, according to the egregious nature of

the acts of Defendant;

       D.       That Defendant be required to recall from any and all channels of trade, any and

all advertising or promotional materials using the PHILLIPS 66 Marks, and/or the term “Phillips”

and/or “66” and/or “Garfield 66” and/or a shield logo/design which incorporates the element

“66”, or anything confusingly similar thereto, in connection with its products or services, or any

variations thereof or anything confusingly similar thereto, and to take affirmative steps to dispel

any false suggestion of a connection to Plaintiff by virtue of its activities, including, but not

limited to, all necessary and appropriate corrective advertising measures;

       E.       That Plaintiff recovers its reasonable attorneys’ fees pursuant to 15 U.S.C. §

1117(a);

       F.       That Plaintiff recovers its costs and disbursements herein;

       G.       That Plaintiff recovers prejudgment interest; and




                                        21
            Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 21 of 22
       G.     That Plaintiff be awarded such other and further relief as the Court may deem just

and proper.

PLAINTIFF HEREBY DEMANDS A TRIAL BY JURY FOR ALL ISSUES SO TRIABLE

Dated: September 25, 2013             Respectfully submitted,

                                      /s/ Bryant T. Lamer
                                      Bryant T. Lamer, MO 57355
                                      J. Loyd Gattis, MO 59699
                                      SPENCER FANE BRITT & BROWNE LLP
                                      1000 Walnut Street, Suite 1400
                                      Kansas City, Missouri 64106
                                      Phone: (816) 474-8100
                                      Fax: (816) 474-3216
                                      blamer@spencerfane.com
                                      lgattis@spencerfane.com

                                      -and-

                                      Dennis D. Murrell (to be admitted pro hac vice)
                                      Brian P. McGraw (to be admitted pro hac vice)
                                      MIDDLETON REUTLINGER
                                      401 S. 4th Street, Suite 2600
                                      Louisville, Kentucky 40202
                                      Phone: (502) 584-1135
                                      Fax: (502) 561-0442
                                      dmurrell@middletonlaw.com
                                      bmcgraw@middletonlaw.com

                                      ATTORNEYS FOR PLAINTIFF
                                      PHILLIPS 66 COMPANY




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         Case 5:13-cv-06109-BP Document 1 Filed 09/25/13 Page 22 of 22

				
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