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					        Case 2:13-cv-02593-JAR-DJW Document 1 Filed 11/20/13 Page 1 of 19




                          IN THE UNITED STATES DISTRICT COURT
                                   DISTRICT OF KANSAS


POP-A-SHOT, INC.,                                   )
a Kansas corporation,                               )
                            Plaintiff,              )
                                                    )
   v.                                               )           Case No. 2:13-cv-2593
                                                    )
TRIUMPH SPORTS USA, INC.,                           )
a Wisconsin corporation,                            )
                                                    )
                            Defendant.              )
                                                    )



                                            COMPLAINT

                1.      This is an action at law and in equity to remedy acts of trademark

infringement and contributory trademark infringement under 15 U.S.C. §1114; unfair

competition under 15 U.S.C. §1125(a); dilution under 15 U.S.C. §1125(c); trademark

infringement, unfair competition, and dilution under the Revised Kansas Trademark Act, K.S.A.

81-201 et seq. and the common law of the State of Kansas; all caused by Defendant’s

unauthorized use of Plaintiff’s  distinctive  trademark  and  trade  name.


                                           THE PARTIES

                2.      Plaintiff Pop-A-Shot,  Inc.  (“Pop-A-Shot” or  “Plaintiff”) is a corporation

organized and existing under the laws of the State of Kansas with its principal place of business

at 200 North Third, Salina, Kansas 67402-1073, and is in the business of selling arcade-type

basketball games under a federally registered trademark.

                3.      On information and belief, Defendant Triumph Sports USA, Inc.

(“Triumph” or  “Defendant”) is a Wisconsin corporation with its principal place of business at
        Case 2:13-cv-02593-JAR-DJW Document 1 Filed 11/20/13 Page 2 of 19




11327 West Lincoln Avenue, West Allis, Wisconsin 53227, and is in the business of selling

arcade-type basketball games and various other products in the sporting goods industry.


                                      JURISDICTION AND VENUE

                  4.       This Court has jurisdiction of the action under 15 U.S.C. § 1121 and 28

U.S.C. §§ 1331, 1338(a) and (b), and 1367.

                  5.       Defendant is doing business and committing acts of infringement in this

judicial district and thus is subject to personal jurisdiction in this judicial district.

                  6.       Venue is proper in this judicial district pursuant to 28 U.S.C. §1391.


                                               BACKGROUND

                  7.       Plaintiff repeats and incorporates the allegations contained in the

preceding paragraphs.

                  8.       On August 13, 1985, United States Trademark Registration No. 1,354,415

was duly and legally issued to Pop-A-Shot for use of the mark POP-A-SHOT® in association

with equipment sold as a unit for playing an arcade-type basketball game. A copy of the U. S.

registration certificate is attached hereto as Exhibit A.

                  9.       Registration No. 1,354,415 is valid and subsisting, has not been canceled,

and constitutes prima facie evidence of the validity of the registered mark, of the registration of

said  mark,  of  Plaintiff’s  ownership  of  said  mark,  and  of  Plaintiff’s  exclusive  right  to  use  the  mark  

in commerce. Moreover, the mark has become incontestable pursuant to 15 U.S.C. § 1065.

                  10.      This action stems not only from Triumph’s  disregard  for  trademark  rights  

in the well-known POP-A-SHOT® trademark, but also Triumph’s blatant attempt to exploit the

goodwill that the mark has acquired over the last 30 years. Triumph has intentionally used “Pop  

Shot” to mislead consumers into believing that its product is affiliated with Pop-A-Shot.


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                11.     Pop-A-Shot is owned by Ken Cochran who created the POP-A-SHOT®

trademark and invented the original arcade-type basketball game. Mr. Cochran is a successful

former collegiate basketball coach who developed the POP-A-SHOT® game to allow all

individuals, even those lacking athletic ability, to enjoy the game of basketball.

                12.     Pop-A-Shot first started manufacturing and selling arcade-type basketball

games under the POP-A-SHOT® mark in 1982. The company continues to develop and sell

products under the POP-A-SHOT® mark to this day. Plaintiff has marketed arcade-type

basketball games under the POP-A-SHOT® mark online and through various other means since

1982.

                13.     POP-A-SHOT® products have gained worldwide recognition and have

been featured on television shows such as Good Morning America, The Price is Right, and

The Rosie O'Donnell Show.

                14.     Numerous articles have been written and published about POP-A-SHOT®

and its arcade-type basketball game. Such articles have been featured in publications such as

Forbes Magazine, Sports Illustrated, The Kansas City Star, and The Wichita Eagle.

                15.     Many well-known celebrities and athletes, such as Marcus Allen, Wilt

Chamberlin, Clyde Drexler, Charles Barkley, Kobe Bryant, LeBron James, Carmelo Anthony,

Steve  Harvey,  President  Bill  Clinton,  Kelly  Ripa,  Rosie  O’Donnell,  and  Kim  Kardashian,  have  

used POP-A-SHOT® games or taken part in POP-A-SHOT® sponsored competitions.

                16.     Popular events such as the POP-A-SHOT® World Championship have

been sponsored and organized around POP-A-SHOT® and its products.

                17.     The POP-A-SHOT® mark is inherently distinctive and, as a result of its

use, has developed an image and customer base, and customers familiar with POP-A-SHOT®




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arcade-type basketball games naturally associate any so-labeled product with Plaintiff and

assume it is a product marketed by Plaintiff.

               18.     Pop-A-Shot has built up and now owns valuable goodwill that is

symbolized by the POP-A-SHOT® mark.

               19.     The POP-A-SHOT® mark is distinctive and has achieved significant

secondary meaning and fame.

               20.     Through Pop-A-Shot’s  untarnished  reputation  and  investment  of  time,  

money, creativity and efforts, the POP-A-SHOT® mark has acquired significant value and good

will in this District and across the country.

               21.     By virtue of Pop-A-Shot’s  trademark registration, Triumph has had at

least constructive notice of Pop-A-Shot’s  rights in the POP-A-SHOT® mark.

               22.     As early as 2013, Pop-A-Shot was made aware of infringing uses by

Triumph at which point Pop-A-Shot sent a cease and desist letter to Triumph providing actual

notice of Pop-A-Shot’s  rights in the mark.

               23.     Triumph has used “Pop  Shot” on its products, packaging, and/or

advertisements is confusingly similar and substantially indistinguishable from Pop-A-Shot’s  

registered POP-A-SHOT® mark. Exhibit B attached hereto shows “Pop Shot” being used on

Triumph’s product packaging and an owner’s manual.

               24.     Triumph has used “Pop  Shot” on advertisements and product packaging

without the consent of Pop-A-Shot.

               25.     Pop-A-Shot is not affiliated or related to Triumph.

               26.     Pop-A-Shot has not, and does not, license, endorse or approve of

Triumph’s use of “Pop  Shot”.




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                 27.      On information and belief, Triumph regularly solicits, transacts and

conducts business in the State of Kansas, and has advertised and sold arcade-type basketball

games using “Pop  Shot” through various retail stores both online and in the State of Kansas.

                 28.      Triumph has supplied arcade-type basketball games to retailers with the

knowledge that the retailers are using “Pop  Shot” without license and without authorization from

Pop-A-Shot.

                 29.      Triumph’s use of “Pop  Shot” on product packaging and advertisements for

arcade-type basketball games, including in online advertisements, is likely to confuse consumers

into believing that Triumph is in some way affiliated with Pop-A-Shot.

                 30.      Triumph’s  retailers’  use  of  “Pop  Shot” on product packaging and

advertisements for arcade-type basketball games, including in online advertisements, at the

points of sale for such arcade-type basketball games is likely to confuse consumers into believing

that Triumph is in some way affiliated with Pop-A-Shot.

                 31.      Triumph’s infringing acts are deliberate, willful and intentional with actual

and constructive knowledge of and disregard to Plaintiff’s  rights.

                 32.      The aforesaid acts of Triumph have caused and, unless restrained and

enjoined  by  this  Court,  will  continue  to  cause  irreparable  damage,  loss  and  injury  to  Plaintiff’s  

business and the identity of the POP-A-SHOT® mark, for which Plaintiff has no adequate

remedy at law.


                                      COUNT I
                       TRADEMARK INFRINGEMENT (15 U.S.C. § 1114(1))

                 33.      Plaintiff repeats and incorporates each and every allegation contained in

the preceding paragraphs.




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                 34.    This claim for trademark infringement arises under Section 32 of the

Lanham Act (15 U.S.C. § 1114).

                 35.    Defendant’s unauthorized use of “Pop  Shot”, as set forth above, is likely

to cause confusion among consumers and, unless enjoined by this Court, will continue to cause

confusion, mistake or deception as to the origin of Defendant’s goods and to mislead the trade

and public into believing that Defendant’s goods originate from, are affiliated with, or are

sponsored by, authorized, approved or sanctioned by Plaintiff.

                 36.    Defendant’s conduct  is  intended  to  take  advantage  of  Plaintiff’s  protected  

trademark and to exploit the goodwill and reputation that Plaintiff has developed.

                 37.    Defendant’s willful activities  constitute  an  infringement  of  Plaintiff’s  

rights in violation of Section 32(1) of the Lanham Act (15 U.S.C. § 1114(1)).

                 38.    Defendant’s unlawful acts of infringement have caused and continue to

cause Plaintiff to sustain monetary damage, loss and injury in an amount to be determined at the

time of trial.

                 39.    Defendant has engaged and continues to engage in these activities

knowingly, willfully and intentionally so as to justify the assessment of treble damages against

Defendant.

                 40.    Plaintiff has no control over the quality of the products sold by Defendant

as “Pop  Shot” merchandise. Because of the likely confusion as to the source of Defendant’s

products,  Plaintiff’s  valuable  goodwill  in  the  trademark is at the mercy of Defendant.

                 41.    As a result of Defendant’s unlawful acts of willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, Plaintiff

has suffered and continues to suffer irreparable harm, including but not limited to detriment to




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and diminution of the value of its mark for which there is no adequate remedy at law.

Accordingly, Plaintiff is entitled to an injunction against Defendant pursuant to Section 34 of the

Lanham Act (15 U.S.C. § 1116).

                 42.      As a result of Defendant’s unlawful acts of willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, Plaintiff is

entitled to recover Defendant’s profits, damages sustained by Plaintiff and the cost of this action

pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).

                 43.      As a result of Defendant’s unlawful acts of willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, Plaintiff is

entitled to  an  award  of  its  reasonable  attorneys’  fees  as  an  exceptional  case  pursuant  to  Section

35(a) of the Lanham Act (15 U.S.C. § 1117(a)).

                 44.      As  a  result  of  Defendant’s  unlawful  acts  of  willful  infringement  and  

intentional use of “Pop  Shot” in connection with the sale, offering for sale and/or distribution of

goods, knowing that such use was an infringing mark, Plaintiff is entitled to confiscation and

destruction of the infringing articles pursuant to Section 36 of the Lanham Act (15 U.S.C. §

1118).


                              COUNT II
          CONTRIBUTORY TRADEMARK INFRINGEMENT (15 U.S.C. § 1114(1))

                 45.      Plaintiff repeats and incorporates each and every allegation contained in

the preceding paragraphs.

                 46.      Defendant supplies its product to distributors and/or retailers.

                 47.      Defendant has direct knowledge that its distributors and/or retailers are

infringing  Plaintiff’s  POP-A-SHOT® mark.




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                 48.    Defendant has intentionally induced its distributors and/or retailers to

infringe  Plaintiff’s  POP-A-SHOT® mark and, on information and belief, continues to supply its

product to distributors and/or retailers whom Defendant knows or has reason to know are

engaging  in  trademark  infringement  of  Plaintiff’s  POP-A-SHOT® mark.

                 49.    On information and belief, Defendant’s  actions,  through  its  distributors

and/or retailers, have caused confusion among consumers, and unless enjoined by this Court, are

likely to cause further confusion, mistake or deception as to the origin of Defendant’s goods and

to mislead the trade and public into believing that Defendant’s goods originate from, are

affiliated with, or are sponsored by, authorized, approved or sanctioned by Plaintiff.

                 50.    Defendant’s  conduct, through its distributors and/or retailers, is intended

to  take  advantage  of  Plaintiff’s  protected  trademark  and  to  exploit the goodwill and reputation

that Plaintiff has developed.

                 51.    Defendant’s  willful  activities  constitute  contributory infringement of

Plaintiff’s  rights.

                 52.    Defendant’s  unlawful  acts  of  contributory infringement have caused and

continue to cause Plaintiff to sustain monetary damage, loss and injury in an amount to be

determined at the time of trial.

                 53.    Defendant has engaged and continues to engage in these activities

knowingly, willfully and intentionally so as to justify the assessment of treble damages against

Defendant.

                 54.    Plaintiff has no control over the quality of the products sold by Defendant,

through its distributors and/or retailers, as “Pop  Shot” merchandise. Because of the actual




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confusion  as  to  the  source  of  Defendant’s  products,  Plaintiff’s  valuable  goodwill in the

trademark is at the mercy of Defendant.

                  55.      As  a  result  of  Defendant’s  unlawful  acts  of  willful  contributory

infringement and use of “Pop  Shot” in connection with the sale, offering for sale and/or

distribution of goods, through its distributors and/or retailers, Plaintiff has suffered and continues

to suffer irreparable harm, including but not limited to detriment to and diminution of the value

of its mark for which there is no adequate remedy at law. Accordingly, Pop-A-Shot is entitled to

an injunction against Defendant and its distributors and/or retailers pursuant to Section 34 of the

Lanham Act (15 U.S.C. § 1116).

                  56.      As  a  result  of  Defendant’s  unlawful  acts  of  willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, through its

distributors and/or retailers, Plaintiff  is  entitled  to  recover  Defendant’s  profits,  Defendant’s  

distributor’s  and/or  retailer’s  profits, damages sustained by Plaintiff and the cost of this action

pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).

                  57.      As  a  result  of  Defendant’s  unlawful  acts  of  willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, through its

distributors and/or retailers, Plaintiff  is  entitled  to  an  award  of  its  reasonable  attorneys’  fees  as  an  

exceptional case pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).

                  58.      As  a  result  of  Defendant’s  unlawful  acts  of  willful  infringement and

intentional use of “Pop  Shot” in connection with the sale, offering for sale and/or distribution of

goods, knowing that such use was an infringing mark, Plaintiff is entitled to confiscation and

destruction of the infringing articles pursuant to Section 36 of the Lanham Act (15 U.S.C.

§ 1118).




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

                59.     Plaintiff repeats and incorporates each and every allegation contained in

the preceding paragraphs.

                60.     Defendant’s  unauthorized  use  of  “Pop  Shot,” as set forth above, has

caused or is likely to cause dilution by blurring and/or dilution by tarnishment.

                61.     Defendant’s  conduct  is  intended  to  take  advantage  of  Plaintiff’s  famous

trademark and to exploit the goodwill and reputation that Plaintiff has developed.

                62.     Defendant’s  use of “Pop  Shot” impairs  the  distinctiveness  of  Plaintiff’s  

famous mark.

                63.     Defendant’s  use of “Pop  Shot” creates a false association arising from the

similarity between “Pop  Shot” and  Plaintiff’s  famous  mark  harming  the  reputation  of  Plaintiff’s  

famous mark.

                64.     Defendant has engaged and continues to engage in these activities

knowingly, willfully and intentionally so as to justify the assessment of treble damages against

Defendant.

                65.     As  a  result  of  Defendant’s  unlawful  acts  of  willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, which has

caused or is likely to cause dilution, Plaintiff is entitled to an injunction against Defendant

pursuant to Sections 34 and 43(c)(1) of the Lanham Act (15 U.S.C. § 1116 and 15 U.S.C.

§ 1125(c)(1), respectively).

                66.     As  a  result  of  Defendant’s  unlawful  acts  of  willful  infringement  and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, Plaintiff is




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entitled  to  recover  Defendant’s  profits,  damages  sustained by Plaintiff and the cost of this action

pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).

                  67.      As  a  result  of  Defendant’s  unlawful  acts  of  willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, causing

dilution  of  Plaintiff’s  mark,  Plaintiff  is  entitled  to  an  award  of  its  reasonable  attorneys’  fees  as  an  

exceptional case pursuant to Section 35(a) of the Lanham Act (15 U.S.C. § 1117(a)).

                  68.      As  a  result  of  Defendant’s  unlawful  acts of willful infringement and

intentional use of “Pop  Shot” in connection with the sale, offering for sale and/or distribution of

goods, knowing that such use was an infringing mark, causing  dilution  of  Plaintiff’s  mark,  

Plaintiff is entitled to confiscation and destruction of the infringing articles pursuant to Section

36 of the Lanham Act (15 U.S.C. § 1118).


                                COUNT IV
              CONTRIBUTORY TRADEMARK DILUTION (15 U.S.C. § 1125(c))

                  69.      Plaintiff repeats and incorporates each and every allegation contained in

the preceding paragraphs.

                  70.      Defendant supplies its product to distributors and/or retailers.

                  71.      Defendant has direct knowledge that its distributors and/or retailers are

infringing  Plaintiff’s  POP-A-SHOT® mark.

                  72.      Defendant has intentionally induced its distributors and/or retailers to

infringe  Plaintiff’s  POP-A-SHOT® mark and, on information and belief, continues to supply its

product to distributors and/or retailers whom Defendant knows or has reason to know are

engaging  in  trademark  infringement  of  Plaintiff’s  POP-A-SHOT® mark.




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                 73.      Defendant’s  unauthorized  use  of  “Pop  Shot”, through its distributors

and/or retailers, as set forth above, has caused or is likely to cause dilution by blurring and/or

dilution by tarnishment.

                 74.      Defendant’s  conduct, through its distributors and/or retailers, is intended

to  take  advantage  of  Plaintiff’s  famous  trademark  and  to  exploit  the  goodwill  and  reputation  that  

Plaintiff has developed.

                 75.      Defendant’s  use  of  Plaintiff’s  famous  mark, through its distributors and/or

retailers, impairs the distinctiveness  of  Plaintiff’s  famous  mark.

                 76.      Defendant’s  use  of  “Pop  Shot,” through its distributors and/or retailers,

creates a false association arising from the similarity between “Pop  Shot” and  Plaintiff’s  famous  

mark harming  the  reputation  of  Plaintiff’s  famous  mark.

                 77.      Defendant has engaged and continues to engage in these activities,

through its distributors and/or retailers, knowingly, willfully and intentionally so as to justify the

assessment of treble damages against Defendant.

                 78.      Defendant’s  unlawful  acts  of  willful infringement and use of “Pop  Shot”

in connection with the sale, offering for sale and/or distribution of goods, through its distributors

and/or retailers, has caused or is likely to cause dilution. Accordingly, Pop-A-Shot is entitled to

an injunction against Defendant pursuant to Sections 34 and 43(c)(1) of the Lanham Act (15

U.S.C. § 1116 and 15 U.S.C. § 1125(c)(1), respectively).

                 79.      As  a  result  of  Defendant’s  unlawful  acts  of  willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, through its

distributors and/or retailers, Plaintiff  is  entitled  to  recover  Defendant’s  profits,  damages  




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sustained by Plaintiff and the cost of this action pursuant to Section 35(a) of the Lanham Act (15

U.S.C. § 1117(a)).

                 80.      As  a  result  of  Defendant’s  unlawful  acts  of  willful infringement and use of

“Pop  Shot” in connection with the sale, offering for sale and/or distribution of goods, through its

distributors and/or retailers, causing  dilution  of  Plaintiff’s  mark,  Plaintiff is entitled to an award

of  its  reasonable  attorneys’  fees  as  an  exceptional  case  pursuant  to  Section  35(a)  of  the  Lanham  

Act (15 U.S.C. § 1117(a)).

                 81.      As  a  result  of  Defendant’s  unlawful  acts  of  willful  infringement and

intentional use of “Pop  Shot” in connection with the sale, offering for sale and/or distribution of

goods, knowing that such use was an infringing mark, through its distributors and/or retailers,

causing  dilution  of  Plaintiff’s  mark,  Plaintiff  is  entitled  to  confiscation and destruction of the

infringing articles pursuant to Section 36 of the Lanham Act (15 U.S.C. § 1118).


                                        COUNT V
                             FEDERAL UNFAIR COMPETITION AND
                            FALSE ADVERTISING (15 U.S.C. § 1125(a))

                 82.      Plaintiff repeats and incorporates each and every allegation contained in

the preceding paragraphs.

                 83.      Defendant’s  activities  as  set  forth  above  constitute  false  or  misleading  

descriptions of fact or origins and/or false or misleading representations of fact in commerce that

misrepresent is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,

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

approval  of  Plaintiff’s  goods  or  commercial  activities  by  Plaintiff.

                 84.      Defendant’s activities as set forth above constitute false or misleading

descriptions of fact or origins and/or false or misleading representations of fact in commercial



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advertising or promotion that misrepresent the nature, characteristics, and qualities of

Defendant’s  goods  and  commercial  activities.

                  85.      Defendant’s activities are likely to mislead the trade and public into

believing, inter alia, that Plaintiff is associated with Defendant and deprive Plaintiff of sales and

customers.

                  86.      Accordingly, Defendant’s activities constitute unfair competition and false

advertising in violation of 15 U.S.C. §§ 1125(a)(1)(A) and (B).

                  87.      Defendant’s acts of false advertising and trade libel have materially

injured  and  continue  to  injure  Plaintiff’s  business,  including  injury  to  Plaintiff’s  reputation  and  

goodwill, and have caused Plaintiff to sustain monetary damages, loss and injury.

                  88.      Defendant has engaged and continues to engage in these activities

knowingly, willfully and intentionally.

                  89.      Defendant’s acts of unfair competition and false advertising, unless

enjoined by this Court, will continue to cause Plaintiff to sustain irreparable damage, loss and

injury, for which Plaintiff has no adequate remedy at law. Accordingly, Pop-A-Shot is entitled

to an injunction against Defendant pursuant to 15 U.S.C. § 1116.

                  90.      As a result of Defendant’s unlawful and willful acts of unfair competition

and false advertising, Plaintiff is entitled to recover Defendant’s profits, damages sustained by

Plaintiff and the cost of this action pursuant to 15 U.S.C. § 1117(a).

                  91.      As a result of Defendant’s unlawful and willful acts of unfair competition

and false advertising,  Plaintiff  is  entitled  to  an  award  of  its  reasonable  attorneys’  fees  as  an  

exceptional case pursuant to 15 U.S.C. § 1117(a).




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                                     COUNT VI
                           COMMON LAW UNFAIR COMPETITION

                92.      Plaintiff repeats and incorporates each and every allegation contained in

the preceding paragraphs.

                93.      This claim arises under Kansas state common law for unfair competition.

                94.      Through  Plaintiff’s  use  of  the  POP-A-SHOT® mark in Kansas, Plaintiff

possesses significant common law rights in the mark.

                95.      The POP-A-SHOT® mark has become distinctive and acquired secondary

meaning among Kansas consumers.

                96.      Defendant’s  use  of  “Pop  Shot” and  “passing  off”  of  arcade-type basketball

games  as  Plaintiff’s  constitute  unfair  competition  as  proscribed  by  the  common law of various

states, including the State of Kansas.

                97.      Defendant’s  adoption  and  use  of  “Pop  Shot” in association with arcade-

type basketball games have caused and/or are likely to cause confusion, mistake or deception as

to the source, sponsorship, or approval  of  Defendant’s  goods  in  that  consumers  are  likely  to  

believe that Defendant’s  goods are licensed by or somehow connected with Plaintiff which

misrepresents the nature, characteristics, and qualities of said goods, as proscribed by the

common law.

                98.      Defendant’s  use  of  “Pop  Shot” in  connection  with  Defendant’s  products  is  

made  with  actual  or  constructive  knowledge  of  Plaintiff’s  rights.

                99.      Defendant’s  acts  as  complained  of  herein  have  caused  Plaintiff  to  sustain  

monetary damages, loss and injury in an amount to be determined at the time of trial.




                                                    -15-
       Case 2:13-cv-02593-JAR-DJW Document 1 Filed 11/20/13 Page 16 of 19




                  100.     The aforesaid acts of Defendant have caused, and unless enjoined by this

Court, will continue to cause Plaintiff to sustain irreparable damage, loss and injury for which

Plaintiff has no adequate remedy at law.

                  101.     As a result  of  Defendant’s  willful and unlawful use of “Pop  Shot” in

connection with the sale, offering for sale and/or distribution of goods in various states and the

State  of  Kansas,  Plaintiff  is  entitled  to  recover  its  damages,  Defendant’s  profits,  its  attorneys’  

fees and punitive damages.


                                           COUNT VII
                                INJURY TO BUSINESS REPUTATION
                               AND DILUTION UNDER KANSAS LAW

                  102.     Plaintiff repeats and incorporates each and every allegation contained in

the preceding paragraphs.

                  103.     This claim arises under K.S.A. § 81-201 et seq.

                  104.     Through  Plaintiff’s  use  of  the  POP-A-SHOT® mark in Kansas, Plaintiff’s  

mark has become distinctive and famous in Kansas.

                  105.     Defendant’s adoption and use of “Pop  Shot” in association with arcade-

type basketball games have caused and/or are likely to cause confusion, mistake or deception as

to the source, sponsorship, or approval of Defendant’s goods in that consumers are likely to

believe that Defendant’s  goods are licensed by or somehow connected with Plaintiff which

misrepresents the nature, characteristics, and qualities of said goods, as proscribed by Kansas

law.

                  106.     Defendant’s use of “Pop  Shot” in connection with Defendant’s products is

made  with  actual  or  constructive  knowledge  of  Plaintiff’s  rights.




                                                        -16-
      Case 2:13-cv-02593-JAR-DJW Document 1 Filed 11/20/13 Page 17 of 19




                107.     Defendant  willfully  intended  to  trade  on  Plaintiff’s  reputation or to cause

dilution  of  Plaintiff’s  famous  mark.

                108.     Defendant’s acts as complained of herein have caused Plaintiff to sustain

monetary damages, loss and injury in an amount to be determined at the time of trial.

                109.     The aforesaid acts of Defendant have caused, and unless enjoined by this

Court, will continue to cause Plaintiff to sustain irreparable damage, loss and injury for which

Plaintiff has no adequate remedy at law.

                110.     As a result of Defendant’s willful and unlawful use of “Pop  Shot” in

connection with the sale, offering for sale and/or distribution of goods in various states and the

State of Kansas, Plaintiff is entitled to recover its damages, Defendant’s profits,  its  attorneys’  

fees and punitive damages.


                WHEREFORE, PLAINTIFF DEMANDS THE FOLLOWING RELIEF:

                1.       That Defendant and all other persons in active concert or participation

with Defendant who receive actual notice or knowledge of an injunction (pursuant to this

complaint) by personal service or otherwise, be preliminarily and permanently enjoined:

                a.       From further using, preparing producing, manufacturing, ordering,

                         printing, publishing, rendering, distributing, selling, offering for sale,

                         advertising, promoting or otherwise exploiting products under “Pop  Shot”,

                         or under any other term, in a manner which is likely to cause confusion

                         with the POP-A-SHOT® mark;

                b.       From otherwise infringing upon the POP-A-SHOT® mark;

                c.       From further using, in connection with any goods or services, any false or

                         deceptive designation or description, whether by words or other symbols



                                                    -17-
      Case 2:13-cv-02593-JAR-DJW Document 1 Filed 11/20/13 Page 18 of 19




                       or representations, which suggest or imply any relationship with Plaintiff

                       or  Plaintiff’s  products;;

               d.      From further engaging in any unfair trade practice, unfair competition and

                       false advertising against Plaintiff;

               e.      From further using “Pop  Shot” or any mark that is confusingly similar to

                       Plaintiff’s  mark  on any web site, advertisement or promotional material;

                       and

               f.      From in any way inducing, encouraging, aiding, abetting or contributing to

                       any of the aforesaid acts.

               2.      That the Defendant file with this Court and serve on Plaintiff in

accordance with 15 U.S.C. § 1116, within thirty (30) days after service on the Defendant of such

injunction (or such period as this Court may direct) a report in writing and under oath setting

forth in detail the manner and form in which it has complied with this injunction.

               3.      That in accordance with 15 U.S.C. § 1118, Defendant deliver to Plaintiff

for destruction or other disposition all products and promotional materials bearing or displaying

“Pop  Shot”, or any mark confusingly similar to  Plaintiff’s  mark, in Defendant’s possession,

custody or control (and to recall for such purpose any such products and materials in the

possession, custody or control of any other person), as well as any reproduction, counterfeit,

copy or colorable imitation thereof.

               4.      That the Defendant be required to immediately account to Plaintiff for all

profits and advantages derived from its wrongful acts.

               5.      That Plaintiff be awarded monetary relief arising out of Defendant’s false

designation of origin, trademark infringement, unfair competition, and other unlawful acts in an




                                                     -18-
      Case 2:13-cv-02593-JAR-DJW Document 1 Filed 11/20/13 Page 19 of 19




amount in excess of $75,000, the precise amount of which is to be determined at the time of trial,

or any statutory penalties to which Plaintiff may be entitled.

               6.       That because of the willful nature of Defendant’s infringement, the Court

enter judgment for Plaintiff for three times the amount of said damages.

               7.       That in view of the willful, knowing, malicious, wanton and deliberate

nature of Defendant’s wrongful acts, punitive and exemplary damages be awarded to Plaintiff.

               8.       That Plaintiff recover from the Defendant its reasonable attorneys’ fees

together with the costs of this action.

               9.       That Plaintiff be awarded such other and further relief as the Court may

deem just and proper.


                            DESIGNATION OF PLACE OF TRIAL

               Plaintiff hereby designates Kansas City, Kansas as the place of trial.


                                     JURY TRIAL DEMAND

               Plaintiff hereby makes demand for a trial by jury as to all issues herein so triable.


                                                       Respectfully submitted,

                                                       By:/s/ James J. Kernell
                                                          James J. Kernell, #19559
                                                          Ginnie C. Derusseau, #16988
                                                          Kyle D. Donnelly, #25531
                                                          ERICKSON KERNELL DERUSSEAU
                                                          & KLEYPAS, LLC
                                                          8900 State Line Road, Suite 500
                                                          Leawood, Kansas 66206
                                                          Telephone: (913) 549-4700
                                                          Facsimile: (913) 549-4646
                                                          E-Mail:      jjk@kcpatentlaw.com

                                                          Attorney for Plaintiff
                                                          Pop-A-Shot, Inc.


                                                -19-

				
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