nestle gingham.pdf

Document Sample
nestle gingham.pdf Powered By Docstoc
					               Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 1 of 19



                       IN THE UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF PUERTO RICO


THE J. M. SMUCKER COMPANY,                      CASE NO.

                       Plaintiff,

                vs.                             COMPLAINT
                                                AND DEMAND FOR JURY TRIAL
NESTLÉ S.A. and
NESTLÉ USA, INC.,

                       Defendants.


       COMES NOW, Plaintiff, The J. M. Smucker Company (“Smucker”) and for its

Complaint against Defendants Nestlé S.A. and Nestlé USA, Inc. (collectively, “Defendants”)

states and alleges as follows:

                                    NATURE OF THE ACTION

       1.       This is a civil action by Smucker against Defendants to enjoin Defendants’

manufacture, distribution, and sale of infringing products bearing Smucker’s famous trademarks

and proprietary trade dress. As a direct and proximate result of Defendants’ unlawful

manufacture, distribution, and sale of such unlicensed and infringing products, Smucker is

irreparably harmed. Smucker seeks preliminary and permanent injunctive relief, damages, costs

and attorney’s fees as authorized by the Lanham Act and the Laws of the Commonwealth of

Puerto Rico.

                          PARTIES, JURISDICTION AND VENUE

       2.       At all relevant times Smucker is and was a corporation organized and existing

under the laws of the State of Ohio, with its principal place of business located at One

Strawberry Lane, Orville, Ohio 44667.
               Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 2 of 19



       3.       Upon information and belief, Defendant, Nestlé S.A., is a corporation organized

and existing under the laws of Switzerland with its principal place of business located at Avenue

Nestlé 55, 1800 Vevey, Switzerland.

       4.       Upon information and belief, Defendant, Nestlé USA, Inc., is a corporation

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

business located at 800 North Brand Boulevard, Glendale, California.

       5.       Directly or indirectly, Defendants manufacture, distribute, supply and/or sell

goods into and/or from the Commonwealth of Puerto Rico. Defendants derive a financial benefit

from the commercial activities they conduct in the Commonwealth of Puerto Rico.

       6.       This Court has jurisdiction over the subject matter of this action pursuant to

15 U.S.C. § 1121, 28 U.S.C. §§ 1331, 1338 and 2201 because it arises, in part, pursuant to

15 U.S.C. §§ 1114, 1116-1118 and 1125. This Court also has jurisdiction over Plaintiff’s

common law and state law claims pursuant to 28 U.S.C. § 1367.

       7.       Defendants are subject to this Court’s personal jurisdiction in that they: (1)

transact business within the Commonwealth of Puerto Rico; (2) supply goods sold in the

Commonwealth of Puerto Rico; (3) have committed the tortious acts specified herein within the

Commonwealth of Puerto Rico; and/or (4) have committed tortious acts without the

Commonwealth of Puerto Rico causing injury to persons or property within the Commonwealth

of Puerto Rico, and either regularly do or solicit business, engage in other persistent course of

conduct, and/or derive substantial revenue from goods used or consumed or services rendered in

the Commonwealth of Puerto Rico.

       8.       Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b)(1), 1391(b)(2)

and 1391(c).




                                                 -2-
               Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 3 of 19



                            FACTS COMMON TO ALL COUNTS

The Plaintiff

         9.     Smucker is a leading marketer and manufacturer of fruit spreads, peanut butter,

shortening and oils, ice cream toppings, baking mixes, pancake mixes and syrup, retail packaged

coffee, sweetened condensed milk, and natural food products in North America.

         10.    For over 115 years, Smucker has been a family-run business headquartered in

Orrville, Ohio. The founder of Smucker, Jerome Monroe Smucker, sold his products from the

back of a horse-drawn wagon with each jar of product bearing his hand-signed seal as his

personal guarantee of quality. Today, his great-grandsons, Mr. Timothy P. Smucker, Chairman

of the Board of Smucker, and Mr. Richard K. Smucker, Chief Executive Officer of Smucker,

continue to guide the company by applying their great-grandfather’s solid, Midwestern values.

         11.    Smucker is the quintessential family-founded and consumer-oriented American

manufacturing company. In addition to its facilities in Orville, Ohio, Smucker also

manufacturers products in facilities across the United States, including those in the following

communities: Toledo, Ohio; Cincinnati, Ohio; Lexington, Kentucky; Scottsville, Kentucky; New

Orleans, Louisiana; Miami, Florida; Seneca, Missouri; Memphis, Tennessee; New Bethlehem,

Pennsylvania; Chico, California; Havre de Grace, Maryland; Ripon, Wisconsin; and El Paso,

Texas.

         12.    To ensure that its founder’s personal commitment to its customers is maintained,

Smucker operates from its core “Basic Beliefs” of Quality, People, Ethics, Growth, and

Independence.

         13.    Smucker applies its high standard of Quality to its products, its manufacturing

methods, its marketing efforts, and its family of employees. For more than a century, Smucker

has operated on the principle that Quality comes first. Of particular importance to Smucker is


                                                -3-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 4 of 19



maintaining the same strong, ethical values upon which the Company was founded. Smucker

maintains the highest standards of business ethics with its customers, suppliers, employees, and

shareholders, and within the communities in which it operates.

       14.     As a direct result of Smucker’s century-long commitment to its core beliefs and

its customers, the general public and its competitors have come to associate high quality goods

with the SMUCKER’S trademark and Smucker’s family of related trademarks.

The Smucker Marks and the Smucker Trade Dress

       15.     The Smucker family of marks includes Smucker's®, Jif®, Crisco®, Pillsbury®

(by license), Eagle Brand®, R.W. Knudsen Family®, Hungry Jack®, White Lily®, Martha

White®, and Uncrustables®, among others.

       16.     Consistent with its overall basic beliefs and its commitment to providing

customers with high quality goods, Smucker has manufactured and sold jams, jellies, and

preserves under the SMUCKER’S trademark for well over 100 years. Today, Smucker

manufactures and sells over forty varieties of jams, jellies, and preserves. Smucker’s rights in

the SMUCKER’S trademark are embodied, in part, in United States Trademark Registration

Numbers 0,506,885; 0,753,791; 0,890,992; 1,446,696; 1,557,017; 1,918,604; 2,235,411;

3,358,646; 0,850,303; and 3,082,687 (the “SMUCKER’S Mark”). True and correct copies of

these registrations are attached hereto as Exhibit A and are incorporated herein by reference.

       17.     Additionally, since at least as early as 1955, Smucker has consistently packaged

its jams, jellies, and preserves in a proprietary and distinctive crock jar. The crock jar is wide

around the bottom two-thirds portion of the jar, with the upper one-third portion of the jar

tapering inward toward the jar opening, as depicted below:




                                                 -4-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 5 of 19




       18.     Smucker’s rights in the crock jar design are embodied, in part, in United States

Trademark Registration Number 1,409,640 (the “Crock Jar Mark”). A true and correct copy of

this registration is attached hereto as Exhibit B and is incorporated herein by reference.

       19.     Starting at least as early as 1975, Smucker began selling its same jams, jellies, and

preserves under both the SMUCKER’S Mark and the Crock Jar Mark, along with the gingham

lid design depicted below:




       20.     Smucker’s rights to the gingham lid design are embodied, in part, in United States

Trademark Registration Number 1,149,068 (the “Gingham Mark”). A true and correct copy of

this registration is attached hereto as Exhibit C and is incorporated herein by reference.

       21.     The Gingham Mark has been used in the United States by Smucker for decades in

connection with the manufacture and sale of jams, jellies, and preserves and is synonymous with

Smucker in the minds of consumers. In addition to jams, jellies, and preserves, Smucker uses the

Gingham Mark with SMUCKER’S® ice cream toppings, SMUCKER’S® fruit syrups,

SMUCKER’S® natural peanut butter, SMUCKER’S® Uncrustables® sandwiches, and




                                                -5-
           Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 6 of 19



SMUCKER’S® Snack’n Waffles™ brand waffles. Representative images of Smucker’s use of

the Gingham Mark on these products are depicted below:




                                            -6-
               Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 7 of 19



       22.      Smucker has spent millions of dollars marketing and advertising its goods and

services using the SMUCKER’S Mark, the Crock Jar Mark, and the Gingham Mark

(collectively, the “Smucker Marks”) to distinguish its products from those of its competitors.

       23.      As a direct result of Smucker’s time and effort promoting the Smucker Marks and

its consistent use of the Smucker Marks, Smucker’s customers, its competitors, and the general

public have come to associate the high quality goods and services offered by Smucker with the

Smucker Marks.

       24.      The Smucker Marks are famous and have become very valuable assets of

Smucker.

       25.      Since at least as early as 1975, Smucker has manufactured and sold a wide variety

of its jams, jellies, and preserves under a unique, distinctive trade dress and non-functional

package design consisting of a combination of the Smucker Marks (the “Smucker Trade Dress”).

Representative images of Smucker’s use of the Smucker’s Trade Dress are depicted below:




       26.      Smucker has spent millions of dollars marketing and advertising jams, jellies, and

preserves using the Smucker Trade Dress to distinguish its products from those of its

competitors.

       27.      As a direct result of Smucker’s time and effort promoting the Smucker Trade

Dress and its consistent use of the Smucker Trade Dress, Smucker’s customers, its competitors,




                                                 -7-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 8 of 19



and the general public have come to associate the high quality jams, jellies, and preserves offered

by Smucker with the Smucker Trade Dress. The Smucker Trade Dress, and the elements that

make up the Smucker Trade Dress—including the Smucker Marks—are famous and have

become very valuable assets of Smucker.

The Defendants

       28.     Upon information and belief, Nestle S.A. is a Swiss multinational company that

manufactures, distributes, supplies and sells various food and beverage products including baby

food, bottled water, cereals, chocolate and confections, coffee, chilled and frozen foods, dairy

products, bottled tea and juice, ice cream, pet food products, sports nutrition products, and

weight loss products.

       29.     Upon information and belief, Nestle USA, Inc. is a wholly-owned subsidiary of

Nestle Holdings, Inc., which is a wholly-owned subsidiary of Nestle S.A.      Upon information

and belief, Nestle USA, Inc. manufactures, distributes, supplies and sells various food and

beverage products including baby food, bottled water, cereals, chocolate and confections, coffee,

chilled and frozen foods, dairy products, bottled tea and juice, ice cream, pet food products,

sports nutrition products, and weight loss products.

Defendants’ Willful Infringement of the Smucker Marks and Smucker Trade Dress

       30.     In the Spring of 2013, Smucker became aware that Defendant Nestlé S.A. was

and is manufacturing, distributing, and selling baby food products in Mexico that feature

packaging that is nearly identical to the Smucker Trade Dress, including elements that are nearly

identical to the Smucker Marks.

       31.     On October 31, 2013, Smucker filed an administrative action with the Mexican

Institute of Industrial Property alleging that Defendant Nestlé S.A.’s use of such packaging




                                                -8-
               Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 9 of 19



violates Smucker’s longstanding rights in and to the Smucker Marks and the Smucker Trade

Dress.

         32.    Yet despite of knowledge of Smucker’s exclusive rights in and to the Smucker

Marks and Smucker Trade Dress, Defendants now are manufacturing, distributing, and selling

baby food products in Puerto Rico that feature packaging that is nearly identical to the Smucker

Trade Dress, including elements that are nearly identical to the Smucker Marks. Photos of

Defendants’ infringing products are shown below:




         33.    Defendants’ manufacture, distribution, and sale of products bearing the Smucker

Marks and the Smucker Trader Dress clearly constitutes a willful attempt to deceive the public

and trade off the substantial goodwill created by Smucker in connection with its Smucker Marks

and Smucker Trade Dress.




                                               -9-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 10 of 19



       34.     Smucker will be irreparably harmed if the Defendants are permitted to continue

their use of the Smucker Marks and the Smucker Trade Dress in connection with their sale of

baby food products.

                                          COUNT I
                              TRADEMARK INFRINGEMENT
                               15 U.S.C. §§ 1114 AND 1125(a)

       35.     Smucker incorporates each and every allegation of Paragraphs 1-34 of this

Complaint as though fully set forth herein.

       36.     Smucker’s use of the Smucker Marks predates any alleged use by Defendants in

the United States.

       37.     Defendants’ use of the Smucker Marks in connection with their baby foods

products is likely to deceive and cause confusion and mistake among customers as to the source

or origin of the goods provided or offered for sale by Defendants and the sponsorship or

endorsement of those goods by Smucker.

       38.     Defendants’ use of the Smucker Marks in connection with their baby food

products will cause and has caused confusion and mistake among consumers as to the source of

origin of the goods provided by Smucker and the sponsorship or endorsement of those goods by

Defendants.

       39.     Smucker has never authorized, licensed, or otherwise condoned or consented to

Defendants’ use of the Smucker Marks.

       40.     Defendants have misappropriated and continue to misappropriate Smucker’s

substantial property rights in the Smucker Marks, as well as the goodwill associated therewith.

Unless restrained and enjoined by this Court, such conduct will continue and will permit

Defendants to improperly interfere with Smucker’s continued promotion and expansion of the

Smucker Marks.


                                              -10-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 11 of 19



       41.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

       42.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants

are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).

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

       43.     Smucker incorporates each and every allegation of Paragraphs 1-42 of this

Complaint as though fully set forth herein.

       44.     The Smucker Marks have become famous in accordance with the standard set

forth in 15 U.S.C. § 1125(c)(1).

       45.     Defendants began using the Smucker Marks after they became famous.

       46.     Smucker has never authorized, licensed, or otherwise condoned or consented to

Defendants’ use or registration of the Smucker Marks.

       47.     Defendants are diluting the distinctiveness of the Smucker Marks.

       48.     Defendants’ actions are disparaging the distinctiveness of the Smucker Marks.

       49.     Defendants’ actions are blurring the distinctiveness of the Smucker Marks.

       50.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

       51.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants

are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).


                                               -11-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 12 of 19



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

       52.     Smucker incorporates each and every allegation of Paragraphs 1-51 of this

Complaint as though fully set forth herein.

       53.     Smucker has spent a tremendous amount of money, time, and effort promoting the

goodwill associated with its unique Smucker Trade Dress. As a result, Smucker’s distinctive

Smucker Trade Dress has become recognizable to consumers as a designation of origin

specifically identifying Smucker as the source of its products.

       54.     Smucker’s unique Smucker Trade Dress is nonfunctional, distinctive, fanciful,

and entitled to trade dress protection.

       55.     Smucker’s use of the Smucker Trade Dress predates any alleged use by

Defendants in the United States.

       56.     Smucker has never authorized, licensed, or otherwise condoned or consented to

Defendants’ use or registration of the Smucker Trade Dress.

       57.     The conduct and acts of Defendants, as set for herein, constitute infringement of

the Smucker Trade Dress in violation of the Lanham Act, 15 U.S.C. § 1125(a).

       58.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

       59.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants

are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).




                                               -12-
               Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 13 of 19



                                         COUNT IV
                                   TRADE DRESS DILUTION
                                      15 U.S.C. §1125(c)

         60.     Smucker incorporates each and every allegation of Paragraphs 1-59 of this

Complaint as though fully set forth herein.

         61.     The Smucker Trade Dress has become famous in accordance with the standard set

forth in 15 U.S.C. § 1125(c)(1).

         62.     Defendants began using the Smucker Trade Dress after it became famous.

         63.     Smucker has never authorized, licensed, or otherwise condoned or consented to

Defendants’ use or registration of the Smucker Trade Dress.

         64.     Defendants are diluting the distinctiveness of the Smucker Trade Dress.

         65.     Defendants’ actions are disparaging the distinctiveness of the Smucker Trade

Dress.

         66.     Defendants’ actions are blurring the distinctiveness of the Smucker Trade Dress.

         67.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

         68.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants

are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).

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

         69.     Smucker incorporates each and every allegation of Paragraphs 1-68 of this

Complaint as though fully set forth herein.




                                                 -13-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 14 of 19



       70.     Defendants’ use of the Smucker Marks and the Smucker Trade Dress, in

connection with their baby food products, is likely to deceive and cause confusion among

consumers as to the source of origin of the goods offered by Defendants and the sponsorship or

endorsement of those goods by Smucker.

       71.     Smucker has never authorized, licensed, or otherwise condoned or consented to

Defendants’ use of the Smucker Marks or the Smucker Trade Dress.

       72.     Defendants have misappropriated and continue to misappropriate Smucker’s

substantial property rights in the Smucker Marks and the Smucker Trade Dress, as well as the

goodwill associated therewith. Unless restrained and enjoined by this Court, such conduct will

permit Defendants to gain an unfair competitive advantage over Smucker and allow Defendants

to improperly interfere with Smucker’s continued promotion and expansion of its business.

       73.     The acts of Defendants alleged above were committed willfully, with full

knowledge of Smucker’s rights and with the intention to deceive and mislead the public.

       74.     The acts of Defendants alleged above were committed willfully, with full

knowledge of Smucker’s rights and with the intention of causing harm to Smucker.

       75.     The acts of Defendants alleged above were committed willfully, with full

knowledge of Smucker’s rights and with the intention of misappropriating and wrongfully

trading upon the valuable goodwill and reputation of Smucker, the Smucker Marks, and the

Smucker Trade Dress.

       76.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

       77.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants




                                               -14-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 15 of 19



are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).

                                     COUNT VI
                             FEDERAL FALSE ADVERTISING
                                  15 U.S.C. §1125(a)

       78.     Smucker incorporates each and every allegation of Paragraphs 1-77 of this

Complaint as though fully set forth herein.

       79.     Defendants have made false and misleading statements in connection with the

advertising and promotion of the goods offered for sale by Defendants.

       80.     Defendants’ use of identical elements in their packaging amounts to an implicit

statement that the products are either genuine Smucker products and/or their manufacture is

authorized by Smucker.

       81.     The products sold by Defendants are not genuine Smucker products and Smucker

has never authorized, licensed, or otherwise condoned or consented to Defendants’ use of its

packaging or trademarks.

       82.     Upon information and belief, the implicit statement made by Defendants’

packaging actually deceives or tends to deceive a substantial portion of consumers.

       83.     Upon information and belief, this implicit statement will likely influence the

purchasing decisions of deceived consumers.

       84.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

       85.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants

are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).


                                               -15-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 16 of 19



                                    COUNT VII
                              TRADEMARK INFRINGEMENT
                                 UNDER 10 LPRA 223W

       86.     Smucker incorporates each and every allegation of Paragraphs 1-85 of this

Complaint as though fully set forth herein.

       87.     The aforementioned acts of Defendants constitute trademark infringement under

the Laws of Puerto Rico, 10 LPRA 223w, as amended.

       88.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

       89.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants

are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).

                                COUNT VIII
             FALSE DESIGNATION OF ORIGIN AND FALSE DESCRIPTION
                             UNDER 10 LPRA 223X

       90.     Smucker incorporates each and every allegation of Paragraphs 1-89 of this

Complaint as though fully set forth herein.

       91.     The aforementioned acts of Defendants constitute false designation of origin and

false description under the Laws of Puerto Rico, 10 LPRA 223x, as amended.

       92.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

       93.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants

are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).


                                               -16-
             Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 17 of 19



                                       COUNT IX
                                  TRADEMARK DILUTION
                                   UNDER 10 LPRA 223Y

       94.     Smucker incorporates each and every allegation of Paragraphs 1-93 of this

Complaint as though fully set forth herein.

       95.     The Smucker Marks and Smucker Trade Dress have become famous in

accordance with the standard set forth in 10 LPRA 223y, as amended.

       96.     The aforementioned acts of Defendants are diluting or could cause dilution of the

distinctive quality of the famous Smucker Marks and the Smucker Trade Dress by blurring and

tarnishment.

       97.     Defendants will continue their unlawful activities, causing irreparable injury to

Smucker, unless such activities are enjoined by this Court.

       98.     As a direct and proximate result of Defendants’ unlawful activities, Smucker has

and continues to suffer damages in an amount that is not presently ascertainable. If Defendants

are permitted to continue to violate Smucker’s rights, Smucker’s damages will likely exceed Ten

Million Dollars ($10,000,000).

                                    PRAYER FOR RELIEF

       WHEREFORE, Plaintiff prays that this Court enter an Order:

       A.      Preliminarily and permanently enjoining Defendants, or anyone else acting in

               concert with them, or on their behalf from: using any reproduction, copy or

               colorable imitation of the Smucker Marks or any mark confusingly similar

               thereto, including specifically manufacturing, producing, distributing, circulating,

               selling, marketing, offering for sale, advertising, promoting, renting, displaying or

               otherwise disposing of any products bearing any reproduction, copy or colorable




                                               -17-
     Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 18 of 19



       imitation of the Smucker Marks, without the express authorization, license or

       consent of Smucker.

B.     Preliminarily and permanently enjoining Defendants, or anyone else acting in

       concert with them, or on their behalf from: using any reproduction, copy or

       colorable imitation of the Smucker Trade Dress or any trade dress confusingly

       similar thereto, including specifically manufacturing, producing, distributing,

       circulating, selling, marketing, offering for sale, advertising, promoting, renting,

       displaying or otherwise disposing of any products bearing any reproduction, copy

       or colorable imitation of the Smucker Trade Dress, without the express

       authorization, license or consent of Smucker.

C.     Requiring Defendants to deliver up for destruction to Smucker all unauthorized

       products, advertisements or other documents in their possession or under their

       control bearing the Smucker Marks, the Smucker Trade Dress, or any simulation,

       reproduction, copy or colorable imitation thereof, pursuant to 15 U.S.C. §1118;

D.     Awarding to Plaintiff the damages it sustained as a result of Defendants’ wrongful

       acts;

E.     Awarding to Plaintiff Defendants’ profits pursuant to 15 U.S.C. § 1117;

F.     Awarding to Plaintiff treble damages pursuant to 15 U.S.C. § 1117;

G.     Awarding to Plaintiff its costs and attorneys’ fees pursuant to 15 U.S.C. § 1117;

H.     Awarding to Plaintiff punitive damages as a result of Defendants’ willful and

       wrongful acts; and

I.     Granting Plaintiff any further relief that the Court deems to be just and proper.




                                        -18-
          Case 3:13-cv-01925 Document 1 Filed 12/18/13 Page 19 of 19



                                        JURY DEMAND

      Plaintiff respectfully requests a trial by jury on all issues triable thereby.


Dated: December 18, 2013


                                                  Respectfully submitted,


                                                  /s/ Orlando Fernandez
                                                  Orlando Fernandez (Bar No. 126912)
                                                  ORLANDO FERNANDEZ LAW OFFICE
                                                  Capital Center Bldg., South Tower
                                                  Ave. Arterial Hostos PH-1 Suite 1204
                                                  San Juan, Puerto Rico 00918-1477
                                                  Telephone: (787) 294-5698
                                                  Facsimile: (787) 294-5699
                                                  ofernandez@oflawoffice.com

Proposed Pro Hac Vice Counsel
Timothy P. Fraelich (Ohio No. 0062468)
Mary Alexander Hyde (Ohio No. 0084136)
JONES DAY
North Point
901 Lakeside Avenue
Cleveland, OH 44114-1190
Telephone: (216) 586-3939
Facsimile: (216) 579-0212
tfraelich@jonesday.com
malexanderhyde@jonesday.com
                                                  ATTORNEYS FOR PLAINTIFF
                                                  THE J. M. SMUCKER COMPANY




                                                -19-

				
DOCUMENT INFO
Shared By:
Tags:
Stats:
views:103
posted:12/19/2013
language:Unknown
pages:19
martyschwimmer martyschwimmer
About