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					                   IN THE UNITED STATES DISTRICT COURT
                 FOR THE EASTERN DISTRICT OF TENNESSEE
                           KNOXVILLE DIVISION

VENTURE TECH, INC.,              )
                                 )
             Plaintiff,          )
                                 )            Case No. 3:13-cv-687
v.                               )
                                 )
THE HARTZ MOUNTAIN               )            JURY DEMANDED
CORPORATION,                     )
                                 )
             Defendant.          )


       COMPLAINT FOR FEDERAL, STATE, AND COMMON LAW TRADEMARK
                INFRINGEMENT AND UNFAIR COMPETITION,
       VIOLATIONS OF THE TENNESSEE CONSUMER PROTECTION ACT, AND
           CANCELLATION OF FEDERALLY REGISTERED TRADEMARKS
	
  
       Plaintiff, Venture Tech, Inc., for its Complaint against Defendant, The Hartz

Mountain Corporation, states as follows:

                                      PARTIES

       1.    Venture Tech, Inc. is a corporation of the State of Tennessee with its

principal place of business at 10720 Lexington Drive in Knoxville, Tennessee.

       2.    Upon information and belief, The Hartz Mountain Corporation is a

corporation of the State of New Jersey with its principal place of business at 400

Plaza Drive, Secaucus New Jersey 07094.

                           JURISDICTION AND VENUE

       3.    This is an action for federal, state, and common law trademark

infringement and unfair competition, cancellation of federally registered

trademarks, and violations of the Tennessee Consumer Protection Act.



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       4.    The matter in controversy exceeds the sum or value of Seventy-Five

Thousand Dollars ($75,000.00), exclusive of costs and interest, and the citizenship

of every plaintiff is diverse from the citizenship of every defendant.

       5.    This Court has jurisdiction of the subject matter pursuant to at least

15 U.S.C. §1121, 28 U.S.C. §§1331, 1332, and 1338(a), and under this Court’s

pendent jurisdiction over substantial and related state and common law claims

conjoined therewith and arising under the same operative facts and circumstances

in accordance with 28 U.S.C. §§ 1338(b) and 1367.

       6.    Hartz is subject to the in personam jurisdiction of this Court in this

District.

       7.    Venue is proper in this district under at least 28 U.S.C. §§ 139l(a), (b)

and (c).

                                   BACKGROUND

       8.    Venture Tech, Inc. is and at all times relevant hereto has been in the

business of making and selling compositions for controlling malodors associated

with a range of sources including, for example, waste products of pets, humans, and

other animals; vomitus; rotting, decaying, and otherwise decomposing matter;

sewage; mold and mildew; animal bedding and animal habitat areas; and other

malodor-generating materials and substances. (hereinafter the “Goods").

       9.    Since at least as early as March 24, 1992, Venture Tech, through its

predecessor in interest, Nuscents, Inc., a Tennessee corporation, has substantially

continuously used and is now using the mark NODOR for the Goods in commerce in

the United States. Collective Exhibit A hereto contains examples of how Venture


                                  2
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Tech is currently using the NODOR mark for the Goods. At times, Venture Tech

has done and continues to do business using the company name Nuscents of its

predecessor entity Nuscents, Inc., having acquired substantially all the business

and other assets of Nuscents, including all trademark rights and associated

goodwill, together with all copyright and other intangible assets, in February of

2009.

        10.   Venture Tech owns all right, title and interest in and to the NODOR

mark used by Venture Tech and its predecessor Nuscents for the Goods.

        11.   The term “nodor” is an inherently distinctive mark for the Goods.

        12.   Venture Tech, through its predecessor in interest, has made open and

substantially continuous use of the NODOR mark for the Goods in commerce in the

United States for over 20 years, and the NODOR mark has come to symbolize a

valuable goodwill in association with a source of the Goods.

        13.   As used by Venture Tech in commerce for the Goods, the NODOR

mark identifies and distinguishes the Goods as emanating from a source of the

Goods in relation to the same or similar goods emanating from others.

        14.   The term “nodor” is a valid and protectable mark for the Goods.

        15.   Hartz is the largest pet products company in the United States,

employing over 1,000 people in the development, manufacture, distribution, and

sale of over 1,500 different pet products through over 40,000 US retailers under

hundreds of marks, yielding gross revenues approaching $ 1 billion in fiscal year

2012.

        16.   Hartz is relatively sophisticated in its knowledge and practices of


                                  3
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conducting trademark clearance searches for assessing the availability of marks for

use and registration in the USPTO for its products.

       17.   Hartz alleges to have commenced use of the mark NODOR for products

that fall within the scope of the Goods and/or for products having a close commercial

relationship to the Goods (hereinafter, collectively, the “Hartz Goods”) on or about

January 1, 2009. Collective Exhibit B hereto contains examples of how Hartz

and/or an affiliate or licensee of Hartz is currently using the NODOR mark for

Hartz Goods.

       18.   On information and belief, the mark NODOR was first used by Hartz

and/or by an affiliate or licensee of Hartz in commerce in the United States for

Hartz Goods long after Venture Tech, through its predecessor in interest, first used

the NODOR mark in commerce in the United States for the Goods.

       19.   Venture Tech through its predecessor Nuscents had already used and

promoted the mark NODOR for Goods distributed and/or sold in commerce

throughout the United States for many years as of the date Hartz first applied to

federally register the NODOR mark in the USPTO on August 8, 2008, for certain of

the Hartz Goods, based on Hartz’ alleged bona fide intent to use the NODOR mark

in commerce for such goods.

       20.   Venture Tech through its predecessor Nuscents had already used and

promoted the mark NODOR for Goods distributed and/or sold in commerce

throughout the United States for many years before the first actual or constructive

use of the NODOR mark by Hartz for the Hartz Goods.

       21.   Since allegedly commencing use of the NODOR mark for certain of the


                                  4
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Hartz Goods in 2009, Hartz has advertised the sale of Hartz Goods throughout the

United States under the NODOR mark, spending substantial monies in an effort to

develop consumer recognition of the NODOR mark in the marketplace, and an

association of the NODOR mark with Hartz as a source of the Hartz Goods.

       22.   Use of the NODOR mark by Hartz and/or by an affiliate or licensee of

Hartz for Hartz Goods is likely to cause and, on information and belief, has actually

caused confusion, mistake, or deception among consumers, the trade, and the public

in general as to the source of the Hartz Goods.

       23.   Use of the mark NODOR by Hartz and/or by an affiliate or licensee of

Hartz for Hartz Goods is likely to divert substantial trade, business, and goodwill

from Venture Tech.

       24.   Use of the mark NODOR by Hartz and/or by an affiliate or licensee of

Hartz for Hartz Goods has diverted substantial trade, business, and goodwill from

Venture Tech.

       25.   Use of the mark NODOR by Hartz and/or by an affiliate or licensee of

Hartz for Hartz Goods is diverting and, if allowed to continue, will continue to

divert substantial trade, business, and goodwill from Venture Tech.

       26.   Use of the mark NODOR by Hartz and/or by an affiliate or licensee of

Hartz for Hartz Goods is and has been without the license, consent or acquiescence

of Venture Tech.

       27.   Hartz knew of the prior and/or then-existing use of the NODOR mark

by Venture Tech or its predecessor for the Goods at the time Hartz and/or an

affiliate or licensee of Hartz commenced actual use of the mark NODOR for the


                                  5
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Hartz Goods.

       28.   Hartz knew of the then-existing use of the NODOR mark by Venture

Tech or its predecessor for the Goods at the time Hartz and/or an affiliate or

licensee of Hartz commenced use of the mark NODOR the Hartz Goods.

       29.   Hartz knew of the then-existing use of the NODOR mark by Venture

Tech or its predecessor for the Goods in commerce at the time Hartz first actually or

constructively used the mark NODOR in commerce for the Hartz Goods.

       30.   Hartz knew of the prior use of the NODOR mark by Venture Tech or

its predecessor for the Goods in commerce substantially throughout the United

States at the time Hartz first actually or constructively used the mark NODOR in

commerce for the Hartz Goods.

       31.   Hartz knew or should have known of the then-existing use of the

NODOR mark by Venture Tech or its predecessor for the Goods at the time Hartz

commenced actual or constructive use of the mark NODOR for the Hartz Goods.

       32.   Hartz knew or should have known of the then-existing use of the

NODOR mark by Venture Tech or its predecessor for the Goods in commerce at the

time Hartz commenced use of the mark NODOR for the Hartz Goods.

       33.   Hartz knew or should have known of the then-existing use of the

NODOR mark by Venture Tech for the Goods in commerce at the time Hartz

commenced use of the mark NODOR in commerce for the Hartz Goods.

       34.   Hartz has registered or sought to register over 800 marks in the

United States Patent and Trademark Office (“USPTO”) for a wide range of pet

products.


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       35.   Hartz is the record owner of the four below-identified federal

registrations issued to Hartz by the USPTO for marks consisting of or containing

the NODOR mark for various pet products, including the Hartz Goods, the subject

registrations hereinafter referred to, at times, as the “NODOR Registrations,”

copies of the official Certificates issued therefor by the USPTO being attached

hereto as Exhibits C1, C2, C3, and C4:


                           Issue                                                      Alleged
     Mark         Reg. No                        Class(es) & Goods
                           Date                                                      First Use
 NODOR           4006518 08/02/2011       G & S: Carpet and upholstery cleaners     03/01/2011
                                         for removing stains having incidental
                                         deodorant properties; deodorant sprays
                                         for pets; impregnated cleaning pads for
                                         the removal of dander from the coats of
                                         cats and dogs; disposable wipes
                                         impregnated with cleansing compounds
                                         for use on the coats of dogs and cats to
                                         remove dander and odor.

                                         G & S: Deodorizing sprays and powders      01/01/2009
                                         for litter boxes; disposable pads
                                         impregnated with chemicals or
                                         compounds for removal of urine odor.
 Hartz NODOR     4006522 08/02/2011      G & S: Carpet and upholstery cleaners      03/01/2011
                                         for removing stains having
 and Design                              incidental deodorant properties;
                                         deodorant sprays for pets; impregnated
                                         cleaning pads for the removal of
                                         dander from the coats of cats and dogs;
                                         disposable wipes impregnated with
                                         cleansing compounds for use on
                                         the coats of dogs and cats to remove
                                         dander and odor.

                                         G & S: Deodorizing sprays and powders      01/01/2009
                                         for litter boxes; disposable
                                         pads impregnated with chemicals or
                                         compounds for removal of urine odor.
 NODOR           4161876 06/19/2012      G & S: Animal litter pans and litter       05/01/2011
                                         liners; scoops for the disposal of pet
                                         waste.
 NODOR           4239073 11/06/2012      G & S: Animal bedding, namely, pine        06/01/2011
                                         and cedar shaving, paper pulp and
                                         corncob material; pet litter.



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         36.    In the course of filing the applications that gave rise to the four above-

identified NODOR Registrations, Hartz made the following sworn declaration

(hereinafter the “Declaration”) in support of each application:

         The undersigned, being hereby warned that willful false statements and the like so
         made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001,
         and that such willful false statements, and the like, may jeopardize the validity of
         the application or any resulting registration, declares that he/she is properly
         authorized to execute this application on behalf of the applicant; he/she believes the
         applicant to be the owner of the trademark/service mark sought to be registered, or,
         if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes
         applicant to be entitled to use such mark in commerce; to the best of his/her
         knowledge and belief no other person, firm, corporation, or association has the right
         to use the mark in commerce, either in the identical form thereof or in such near
         resemblance thereto as to be likely, when used on or in connection with the
         goods/services of such other person, to cause confusion, or to cause mistake, or to
         deceive; and that all statements made of his/her own knowledge are true; and that all
         statements made on information and belief are believed to be true.



         37.    The representations in the Declaration are an essential part of the

requirements for each of the applications of Hartz that gave rise to the NODOR

Registrations, and are material to the applications and to the ensuing NODOR

Registrations.

         38.    The NODOR marks of the parties are essentially identical and the

Goods for which the NODOR mark is used by Venture Tech and the Hartz Goods for

which the NODOR mark is registered by Hartz are the same or are sufficiently

related such that the simultaneous use of the NODOR mark by the parties for their

respective goods in commerce has created and will continue to create a likelihood of

confusion, mistake, or deception among relevant purchasers as to the source of the

goods.




                                  8
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       39.   Hartz knew of the prior use of the NODOR mark by Venture Tech or

its predecessor for the Goods as of the date Hartz filed the applications giving rise

to the NODOR Registrations.

       40.   Hartz knew of the then-existing use of the NODOR mark by Venture

Tech or its predecessor for the Goods as of the date Hartz filed the applications

giving rise to the NODOR Registrations.

       41.   Hartz knew of the then-existing use of the NODOR mark by Venture

Tech or its predecessor for the Goods in commerce as of the date Hartz filed the

applications giving rise to the NODOR Registrations.

       42.   Hartz knew of the prior use of the NODOR mark by Venture Tech or

its predecessor for the Goods in commerce as of the date Hartz filed the applications

giving rise to the NODOR Registrations.

       43.   Hartz knew or should have known of the prior use of the NODOR mark

by Venture Tech or its predecessor for the Goods in commerce as of the date Hartz

filed the applications giving rise to the NODOR Registrations.

       44.   Hartz knew or should have known of the then-existing use of the

NODOR mark by Venture Tech or its predecessor for the Goods in commerce as of

the date Hartz filed each of the applications giving rise to the NODOR

Registrations.

       45.   Hartz knew or should have known of the then-existing or prior use of

the NODOR mark by Venture Tech or its predecessor for the Goods in commerce as

of the date Hartz filed the applications giving rise to the NODOR Registrations.




                                  9
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        46.   On information and belief, Hartz, acting by and through its

 representative Mr. William P. Fornshell, serving as its Vice President, Secretary

 and General Counsel, adequately comprehended the meaning and import of the

 language in the Declaration at the time the same was executed on its behalf in

 support of the underlying applications that ultimately gave rise to the four NODOR

 Registrations.

        47.   On information and belief, Hartz, acting by and through its authorized

 agent, Mr. William P. Fornshell, serving as its Vice President, Secretary and

 General Counsel, executed the Declaration with knowledge or reason to know of the

 then-existing and/or prior use in commerce of the NODOR mark by Venture Tech or

 its predecessor for the Goods.

        48.   Hartz knew or should have known of the use of the NODOR mark by

 Venture Tech or its predecessor for the Goods in commerce as of the date Hartz

 executed the Declaration through its authorized agent or representative and,

 thereafter, filed the same in the USPTO in support of the applications giving rise to

 the NODOR Registrations.

        49.   On information and belief, Hartz applied to federally register the

 marks of the NODOR Registrations and, thereafter, commenced first use of the

 NODOR marks thereof for the Hartz Goods set forth therein with knowledge of use

 of the NODOR mark by Venture Tech or its predecessor for the Goods prior to the

 earliest filing date of the aforementioned applications, and Hartz has continued to

 use the same in commerce for Hartz Goods, all in willful or at least grossly reckless

 disregard of Venture Tech’s prior and superior exclusive rights in the NODOR mark



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 for the Goods, and of the consequent certainty that palpable confusion as to source

 would undoubtedly arise in the minds of consumers from simultaneous use of the

 NODOR marks of the parties in commerce for or in connection with their respective

 products.

        50.   Substantially concurrently with the filing of this action, Venture Tech

 gave actual notice to Hartz, by the attached correspondence of its counsel (Exhibit

 D), of Venture Tech’s claim and belief that Hartz’s use and registration of the

 NODOR mark for the Hartz Goods constitutes serious and actionable violations of

 Venture Tech’s rights under federal, state, and common laws, violations which have

 enabled and are enabling Hartz to, among other things, unjustly enrich itself by

 reason of sales of Hartz Goods under the NODOR mark, to reap where it has not

 sown, and to unfairly compete with Venture Tech to the substantial legal and

 financial detriment of Venture Tech including, but not limited to, substantial

 impairment, constraint, limitation, and impedance of Venture Tech’s reasonably

 justified expectations to grow and expand the scope, strength, and other favorable

 attributes of its NODOR brand and the associated favorable goodwill and consumer

 devotion to the perceived source of the same in relation to the Goods and in relation

 to commercially related goods, and to concomitantly continue to expand the

 channels of trade, markets, and customer base of Venture Tech for Goods sold under

 the NODOR mark, all in both domestic and international markets; that, on

 information and belief, Hartz’s unlawful and nefarious actions in regard to use and

 registration of the NODOR mark amount to willful and deliberate trespass upon

 and, in effect, theft of, valid and valuable trademark property of Venture Tech that



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 has caused, is causing, and will continue to cause significant and irreparable injury,

 damage, and harm to Venture Tech and its rights; and, for at least the above and

 other reasons, Venture Tech has, concomitantly with the filing of this action,

 demanded that Hartz immediately and unconditionally cancel, with prejudice, all of

 the NODOR Registrations and that Hartz and any/all licensees, customers, and

 affiliates immediately and unconditionally stop and otherwise cease and desist all

 use of the NODOR mark for the Hartz Goods and all manufacture, advertising,

 marketing, distribution, and sale of all Hartz Goods under any mark, name, or logo

 containing the NODOR mark or any confusingly variation thereof, but Hartz has

 thus far refused to comply with Venture Tech’s demands.

                                        COUNT I

                FEDERAL TRADEMARK INFRINGEMENT, UNFAIR
                  COMPETITION, AND RELATED VIOLATIONS

        51.   Venture Tech restates all preceding paragraphs as if fully set forth

 herein, and for its Count I states as follows:

        52.   Use of the NODOR mark as alleged herein and otherwise by Hartz for

 the Hartz Goods is likely to cause and, on information and belief, has actually

 caused, confusion, mistake, and/or deception in violation of 15 U.S.C. § 1125(a).

        53.   Use of the NODOR mark as alleged herein and otherwise by Hartz for

 the Hartz Goods falsely represents, suggests, and otherwise communicates to

 consumers and to persons in the trade and industry in general that Hartz Goods

 promoted, sold, offered for sale, and/or advertised by Hartz under the NODOR mark

 are promoted, sold, offered for sale, and/or advertised by or with the permission of




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                                    1                                          	
  
 or authorization from the same commercial source as that of Goods promoted, sold,

 offered for sale, and/or advertised by Venture Tech under the NODOR mark, or

 from a commercial source related to, affiliated with, or connected with the source of

 such Goods; and/or that the source of the Hartz Goods promoted, marketed,

 advertised, offered for sale, and/or sold under the NODOR mark is subject to quality

 standards set, established, controlled by, and/or otherwise relationally consistent

 with, those of the source of Goods promoted, sold, offered for sale, and/or advertised

 by Venture Tech under the NODOR mark, in further violation of 15 U.S.C. §

 1125(a).

        54.   Use of the NODOR mark as alleged herein and otherwise by Hartz

 constitutes false and misleading designations of origin in violation of 15 U.S.C.

 §1125(a).

        55.   Use of the NODOR mark as alleged herein and otherwise by Hartz for

 or in connection with the Hartz Goods infringes upon and will continue to infringe

 upon Venture Tech’s rights in the NODOR mark in violation of 15 U.S.C. § 1125(a).

        56.   The unlawful, illegal, unjust, and unfair use of the NODOR mark by

 Hartz for the Hartz Goods has been and is being undertaken with knowledge of or

 reason to know of the long period of prior and substantially continuous and

 exclusive use of the NODOR mark by Venture Tech and its predecessor in

 commerce in the United States for the Goods, and with the deliberate, willful, and

 purposeful intent, plan, and/or scheme to infringe upon, violate, harm, usurp, and

 otherwise injure, impair, weaken, diminish, dilute, or reduce exclusive and other

 proprietary rights of Venture Tech in regard to the NODOR mark, and to



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                                    1                                          	
  
 unlawfully, unjustly, and unfairly compete with and divert, to Hartz, trade,

 goodwill, and revenue from the source of Goods sold by Venture Tech under the

 NODOR mark, whereby Hartz has been, is being, and will continue to be unjustly

 enriched with, among other things, substantial revenue, profits, and other monetary

 benefits arising from Hartz’s deliberately illegal, unlawful, unjust, and unfair use of

 a virtually identical copy or colorable imitation of the NODOR mark previously used

 in commerce by Venture Tech for the Goods, and unlawful accretion to Hartz of

 intellectual property rights, product goodwill, exclusivity, and brand equity

 belonging to Venture Tech and embodied in or represented by its NODOR mark.

        57.   Use of the NODOR mark as alleged herein and otherwise by Hartz for

 the Hartz Goods is likely to cause reverse confusion, mistake, and/or deception in

 violation of 15 U.S.C. § 1125(a) including, in particular, the false or mistaken belief

 that Venture Tech, or the source of its Goods, is and/or has been, by reason of its use

 of the NODOR mark for the Goods, related to, affiliated or connected with, or

 otherwise associated with Hartz and/or the source of the Hartz Goods sold under

 the NODOR mark.

        58.   Use of the NODOR mark as alleged herein and otherwise by Hartz for

 the Hartz Goods is likely to cause reverse confusion, mistake, and/or deception in

 violation of 15 U.S.C. § 1125(a) including, in particular, the false or mistaken and

 damaging belief that Venture Tech is infringing upon or otherwise violating rights

 of Hartz in the NODOR mark with respect to the Hartz Goods due, at least in part,

 to the very substantial and pervasive marketing activities of Hartz with respect to

 Hartz Goods sold under the NODOR mark together with the enormous disparity of



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 size, economic power, marketing prowess, and apparent commercial and legal

 sophistication of Hartz compared to Venture Tech, leading to falsely directed

 confusion among consumers, the trade, and the public in general with regard to the

 source of Goods marketed and/or sold Venture Tech under the NODOR mark vis-à-

 vis Hartz Goods marketed by Hartz under the NODOR mark, thereby damaging

 and tarnishing the image of Venture Tech, being made to erroneously appear to the

 consuming public as a party that is copying and knocking off a NODOR brand

 mistakenly assumed to belong to Hartz by reason of the much larger and more

 extensive marketing and sales machinery of the Hartz corporate enterprise as

 aforesaid, notwithstanding the substantially lesser-known true facts to the effect

 that the considerably smaller Venture Tech entity is and was the original and

 genuine source of goodwill and brand equity symbolized by the NODOR mark for

 the Goods.

        59.     The acts of Hartz alleged herein have caused and will continue to

 cause substantial and irreparable harm, damage and injury to Venture Tech for

 which Venture Tech has no fully adequate remedy at law, and will continue unless

 and until enjoined and restrained by this Court.

                                        COUNT II

              VIOLATION OF TENNESSE CONSUMER PROTECTION ACT

        60.     Venture Tech restates all preceding paragraphs as if fully set forth

 herein, and for its Count II states as follows:

        61.     Use of the NODOR mark as alleged herein and otherwise by Hartz for

 Hartz Goods violates the Tennessee Consumer Protection Act, T.C.A. § 47-18-101 et



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 seq. In particular, Use of the NODOR mark as alleged herein and otherwise by

 Hartz for Hartz Goods violates at least subsections (1), (2), (3), (5) and (27) of T.C.A.

 § 47-18-104(b).

        62.   As a result of the actions alleged herein, Venture Tech has suffered

 and continues to suffer substantial financial damage, injury, and irreparable harm.

        63.   Hartz committed the actions alleged herein knowingly and willfully.

        64.   Pursuant to T.C.A. 47-18-109(a)(3), Venture Tech is entitled to treble

 damages for the knowing and willful acts of Hartz alleged herein.

        65.   Pursuant to T.C.A. 47-18-1 09(e)(1), Venture Tech is entitled to its

 reasonable attorney fees and costs in bringing this action.

        66.   The acts of Hartz alleged herein have caused and will continue to

 cause substantial and irreparable harm, damage and injury to Venture Tech for

 which Venture Tech has no fully adequate remedy at law, and will continue unless

 and until enjoined and restrained by this Court.

                                       COUNT III

                   COMMON LAW TRADEMARK INFRINGEMENT
                        AND UNFAIR COMPETITION


        67.   Venture Tech restates all preceding paragraphs as if fully set forth

 herein, and for its Count III states as follows:

        68.   Use of the NODOR mark as alleged herein and otherwise by Hartz for

 and in connection with the Hartz Goods constitutes trademark infringement, unfair

 competition, passing off, and trade piracy in violation of the common law and has




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                                    1                                          	
  
 been undertaken in order to cause confusion, deception, and mistake among

 consumers of the relevant products of the parties, of the general public at large, and

 of persons in the trade and industry, and to enable Hartz to unjustly and unfairly

 benefit from and enrich itself and its principals, and employees, at the expense of

 and to the detriment of Venture Tech, by siphoning away goodwill and brand value

 and existing equity built up by Venture Tech and its predecessor over decades of use

 of and investment in advertising and promotion of the NODOR mark.

        69.   Use of the NODOR mark as alleged herein and otherwise by Hartz for

 Hartz Goods has engendered and is likely to engender a false belief in the minds of

 consumers and of the public and persons in the trade and industry in general that

 Hartz is affiliated with, sponsored by, or associated with the source of Goods first

 marketed and sold by Venture Tech through its predecessor under the NODOR

 mark; and/or that Venture Tech is affiliated with, sponsored by, or associated with

 the source of Hartz Goods marketed and sold by Hartz under the NODOR mark.

        70.   The acts of Hartz alleged herein have caused and will continue to

 cause substantial and irreparable harm, damage and injury to Venture Tech for

 which Venture Tech has no fully adequate remedy at law, and will continue unless

 and until enjoined and restrained by this Court.

                                      COUNT IV

    CANCELLATION OF FEDERAL TRADEMARK REGISTRATIONS OF HARTZ
       FOR “NODOR” MARKS OR MARKS CONTAINING “NODOR” MARK
                        FOR “HARTZ’ GOODS”


        71.   Venture Tech restates all preceding paragraphs as if fully set forth



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 herein, and for its Count IV states as follows:

         72.   The above-listed Table of Hartz’ NODOR Registrations is repeated

 below for convenience and for ready availability of pertinent information from the

 same.

                             Issue                                                       Alleged
     MARK          Reg. No                    Class(es) & Goods
                             Date                                                       First Use
 NODOR             4006518 08/02/2011 G & S: Carpet and upholstery cleaners            03/01/2011
                                            for removing stains having incidental
                                            deodorant properties; deodorant sprays
                                            for pets; impregnated cleaning pads for
                                            the removal of dander from the coats of
                                            cats and dogs; disposable wipes
                                            impregnated with cleansing compounds
                                            for use on the coats of dogs and cats to
                                            remove dander and odor.

                                            G & S: Deodorizing sprays and powders      01/01/2009
                                            for litter boxes; disposable pads
                                            impregnated with chemicals or
                                            compounds for removal of urine odor.
 Hartz NODOR       4006522 08/02/2011       G & S: Carpet and upholstery cleaners      03/01/2011
                                            for removing stains having incidental
 and Design                                 deodorant properties; deodorant sprays
                                            for pets; impregnated cleaning pads for
                                            the removal of dander from the coats of
                                            cats and dogs; disposable wipes
                                            impregnated with cleansing compounds
                                            for use on the coats of dogs and cats to
                                            remove dander and odor.

                                             G & S: Deodorizing sprays and             01/01/2009
                                            powders for litter boxes; disposable
                                            pads impregnated with chemicals or
                                            compounds for removal of urine odor.

 NODOR             4161876 06/19/2012 G & S: Animal litter pans and litter             05/01/2011
                                            liners; scoops for the disposal of pet
                                            waste.
 NODOR             4239073 11/06/2012       G & S: Animal bedding, namely, pine        06/01/2011
                                            and cedar shaving, paper pulp and
                                            corncob material; pet litter.


         73.   All four of the NODOR Registrations have been issued less than five
 years. Accordingly, they are all subject to cancellation on any ground that would
 have been sufficient to deny registration of the subject marks registration in the



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 first place. 15 U.S.C. §§ 1064 and 1071(b); see, Int’l Order of Jobs Daughters v.
 Lindeburg & Co., 727 F.2d 1087, 1091 (Fed. Cir. 1984); see also, J. Thomas
 McCarthy, 3 McCarthy on Trademarks and Unfair Competition § 20:17 (4th
 Ed.)(2007).
        74.    Under 15 U.S.C. § 1052(d), a registration subject to cancellation in the

 circumstances of § 1064 (i.e., the registration is less than 5 years old) should

 ordinarily be cancelled upon a sufficient showing, in an inter partes context, by the

 party requesting cancellation (the “Petitioner” in a TTAB Proceeding, and Venture

 Tech herein) of a proprietary interest in a mark shown to have been first used

 before the earliest actual or constructive date of first use of the mark of the

 registration to which the Registrant is entitled and that simultaneous use of the

 marks of the parties for their respective goods/services is likely to cause confusion,

 mistake, or deception as to the source of the goods/services of the parties for which

 their marks are used, or to otherwise cause cognizable damage to the Petitioner.

        75.    According to 15 U.S.C. § 1119, in any action involving a registered

 mark, this Court has plenary authority to determine a party’s right to register the

 mark in the USPTO, in the first instance, to determine if the party’s registration of

 a mark in the USPTO should be cancelled, and to order the registration cancelled

 upon a sufficient showing that the mark should not be registered, or should not be

 registered to the party. Accordingly, upon a sufficient showing by Venture Tech

 herein of grounds for doing so vis-à-vis the NODOR Registrations, including priority

 of use and likelihood of confusion under § 1052, the Court should order the

 Commissioner to effect cancellation of the same from the Principal Register of the

 USPTO.



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        76.    According to the information contained in the NODOR Registrations,

 and the evidence herein with regard to use of the NODOR marks of the parties and

 the goods for which they are/have been used, it will be evident that Venture Tech

 has used the NODOR mark for the Goods since a date almost 20 years prior to the

 earliest actual or constructive date of use of the NODOR mark provable by Hartz

 for the Hartz Goods. And there is a manifest likelihood that simultaneous use of

 the NODOR marks of the parties in commerce for their respective goods would

 cause confusion, mistake, or deception as to the source of the closely related or

 essentially identical goods for which the NODOR mark is used/registered by the

 parties.

        77.    Hence, pursuant to at least 15 U.S.C. §§ 1119, 1064, and 1052(d), the

 case for cancellation of all four of the NODOR Registrations will be made out,

 beyond genuine dispute, and this Court should therefore order the same cancelled

 forthwith according to its power under §1119.



                                       PRAYER

               WHEREFORE, Venture Tech prays to the Court for at least the

 following relief:

        1.     A preliminary and permanent injunction and such other and further

 relief as is provided for under 15 U.S.C. § 1116 in favor of Venture Tech to prohibit

 any further violation of its exclusive rights in its NODOR mark under and in

 accordance with 15 U.S.C. §1125(a), and prohibiting, enjoining, and restraining

 Hartz and all its employees, owners, managers, directors, attorneys persons in



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 control of or under the control of Hartz, and all persons/entities in privity with

 Hartz, from unfairly competing with Venture Tech through the use of spurious

 designations, marks, names, or other subject matter confusingly similar to Venture

 Tech’s previously used NODOR mark, such spurious designations, marks, names, or

 other subject matter including, but not limited to, the mark NODOR and an/all

 other or marks, names, logos, or the like containing the letter string “nodor” and

 used for any Goods, Hartz Goods, or other commercially related goods or services,

 the use of which may cause confusion as to the source of either or both parties’

 services, the foregoing including, but not limited to, any/all further use of the marks

 shown in the NODOR Registrations consisting of or containing the term “nodor” for

 any of the products listed therein or any other Goods or Hartz Goods.

        2.    Issuance by the Court of a preliminarily and permanently injunction

 enjoining and restraining Hartz and all of its employees, owners, officers, agents,

 attorneys, affiliates, all persons or entities in privity with Hartz, and all those who

 receive notice thereof, from and against any and all further use of any mark, name,

 words, symbols, designs, graphics, letters, and/or any other subject matter

 confusingly similar to the NODOR mark previously used by Venture Tech, alone or

 in combination with any other words, for or in connection with any Hartz Goods or

 any other Goods, or any goods or services related thereto; and further enjoining and

 restraining Hartz and all entities and persons directly or indirectly controlled by

 Hartz, during the pendency of this or any related action and of any appeal with

 respect thereto and thereafter, unless/until ordered otherwise by the Court, from

 and against initiating, assisting in, commencing, starting, or conducting any legal



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 or administrative proceeding or activity or filing of any kind before any court,

 tribunal, agency, or other body, including the USPTO, in any jurisdiction,

 pertaining to any of the NODOR registrations, Venture Tech, or any other party or

 subject matter involving any mark, brand, name, or other designation containing

 any form of the letters “nodor” or any registration, application, or other submission

 of any kind involving the same.

        3.    An accounting and resultant award under 15 U.S.C. § 1117(a) of all

 gross profits of Hartz from the sale or other disposition of Hartz Goods and of

 any/all other Goods or other products/services relating thereto sold or provided

 under the NODOR mark, and from commercial use of any other mark, name, brand,

 logo, or subject matter likely to cause confusion with respect to the source of Hartz

 Goods or of any other Goods sold or disposed of under or bearing the NODOR mark.

        4.    An award under 15 U.S.C. § 1117 (a) of all damages of Venture Tech

 proximately or presumptively caused by the acts of Hartz complained of herein,

 including, but not limited to, monies reasonably sufficient for corrective advertising

 to, at least in some measure, counter the adverse effects of the reverse confusion

 and other impairments arising from Hartz’ use of the NODOR mark for the Hartz

 Goods on the market potential of the Goods of Venture Tech sold under its

 previously used NODOR mark, in an amount to be determined at trial.

        5.    Trebling of the monetary award to Venture Tech of Hartz gross profits

 or of Venture Tech’s damages, whichever is greater, together with Venture Tech’s

 reasonable attorney fees and expenses, and prejudgment interest, under15 U.S.C. §

 1117(a) and/or T.C.A. § 47-18-109, in view of the deliberate, willful, and callous



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 violations, acts of infringement, unfair competition, and other nefariously injurious

 acts/omissions of Hartz with respect to Venture Tech’s rights and interests in and in

 regard to its NODOR mark.

        6.    An Order that all goods, labels, signs, prints, packages, containers,

 wrappers, documents, catalogs and other informational, promotional or advertising

 literature or material in the possession or control of Hartz bearing or referring to

 the NODOR mark or any other confusingly similar variation of the NODOR mark of

 Venture Tech to an officer of the Court for destruction pursuant to 15 U.S.C. § 1118.

        7.    An Order from the Court addressed to the Commissioner of Patents or

 other appropriate Government official of the USPTO under and in accordance with

 15 U.S.C. §1119 directing that all four of the NODOR Registrations of Hartz and

 any/all other registrations of Hartz containing the term “nodor” be immediately

 cancelled, with prejudice, from all Registers of the USPTO, and that the same be

 declared null and void and of no effect, ab initio.

        8.    To the extent not included above, an award to Venture Tech of all of its

 costs, attorney's fees, and expenses incurred as a direct or indirect result of this

 litigation and of Venture Tech’s efforts to arrest the infringements, violations, and

 other affronts to its rights and interests stemming from Hartz’ use or registration of

 the any mark or name containing the NODOR mark or any confusingly similar

 variation for any Goods or related products or services.




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        9.    Such other, further, and additional relief as this Court may deem

 reasonable and just.



        Venture Tech respectfully demands a jury to try the issues joined.



 	
  
 Dated: November 19, 2013               Respectfully submitted,

                                        VENTURE TECH, INC.



                                        BY:    s/Mark S. Graham
                                               Mark S. Graham, Esq.
                                               Tennessee Bar BPR No. 11,505
                                               The Graham Law Firm, PLLC
                                               P.O. Box 2269
                                               Knoxville, TN 37901
                                               (865) 633-0331
                                               mgraham@graham-iplaw.com

                                               Attorney for Plaintiff




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