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starbuzz tobacco.pdf

VIEWS: 61 PAGES: 20

									     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 1 of 20 Page ID #:1




 1   Martin E. Jerisat, SBN. 273770
     Jerisat Law Firm
 2   2372 Morse Ave., Ste. 322
 3   Irvine, CA 92614
     T: 714.571.5700
 4   E: mjerisat@jk-lawfirm.com
 5   Attorney for Plaintiff Starbuzz Tobacco, Inc.
 6
 7
 8
                        UNITED STATES DISTRICT COURT
 9                     CENTRAL DISTRICT OF CALIFORNIA
10
     Starbuzz Tobacco, Inc., a California   )     Case No.:
11   Corporation,                           )
12                                          )           COMPLAINT FOR:
                   Plaintiff,               )
13
            vs.                             )     1. TRADEMARK INFRINGEMENT
14                                          )        (UNDER 15 U.S.C. § 1114)
15                                          )
     5 Star Hookah, LLC, a California       )     2. TRADEMARK INFRINGEMENT
16   Limited Liability Corporation, Oskihan )        (UNDER 15 U.S.C. § 1125)
17   Danaciyan, an Individual D/B/A         )
     5starhookah.com, and DOES 1through )         3. UNFAIR BUSINESS PRACTICES
18   10 inclusive,                          )        (UNDER BUS. & PROF. CODE
19                                          )        §17200 et seq.)
                   Defendants.              )
20
                                            )     4. FOR IMPOSITION OF A
21                                          )        CONSTRUCTIVE TRUST UPON
22                                          )        ILLEGAL PROFITS; AND
                                            )
23                                          )     5. ACCOUNTING
24                                          )
                                            )     DEMAND FOR JURY TRIAL
25
                                            )
26
27
28


                                              -1-
                                            Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 2 of 20 Page ID #:2




 1         Plaintiff, Starbuzz Tobacco, Inc. complains of Defendants and alleges as

 2   follows:
 3
                                    I.         JURISDICTION
 4
 5         1.      This Court has original jurisdiction over this action pursuant to 15
 6
     U.S.C. §§1119 and 1121, and 28 U.S.C. §§1331 and 1338, in that this Complaint
 7
 8   raises federal questions under the United States Trademark Act (Lanham Act), 15
 9   U.S.C. §1051 et seq. This Court has supplemental jurisdiction over the state law
10
     claims pursuant to 28 U.S.C. §1367.
11
12         2.      This Court also has personal jurisdiction over Defendants because
13
     they have engaged in business activities in this district. Additionally, Defendants
14
15   maintain their principal place of business in California, and are domiciled in
16
     California.
17
18         3.      Venue is proper in this district under 28 U.S.C. § 1391 (b) and (c) in

19   that substantial injury occurred and continues to occur in this district, a substantial
20
     portion of the events that are the subject of this action took place in this district,
21
22   and that Defendants are subject to personal jurisdiction in this district.
23
                                         II.     PARTIES
24
25         4.      Plaintiff, Starbuzz Tobacco, Inc. (“Starbuzz” or “Plaintiff”), is now,
26   and at all times relevant herein was, a corporation organized under the laws of the
27
28


                                                  -2-
                                                Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 3 of 20 Page ID #:3




 1   State of California, with its principal place of business in the City of Garden

 2   Grove, California.
 3
           5.     Defendant, Oskihan Danaciyan (“Danaciyan”), an individual, is now,
 4
 5   and at all times relevant herein was, a resident of Granada Hills, CA.
 6
           6.     Defendant 5 Star Hookah, LLC (“5 Star”), a limited liability
 7
 8   corporation, is now and at all times relevant herein, had a business address in
 9   Granada Hills, CA.
10
           7.     Starbuzz is informed and believes, and on that basis alleges, that
11
12   Defendants are responsible for each of their acts and for their conduct, which are
13
     the true legal causes for the damages herein alleged.
14
15                          III.   FACTUAL BACKGROUND
16
           8.     This is an action concerning Defendants' infringement of Starbuzz's
17
18   trademarks. Defendants have flagrantly disregarded Starbuzz's trademarks ,

19   without authorization, to promote their products.
20
     Starbuzz’s Trademarks
21
22         9.     Starbuzz sells and distributes tobacco products under various
23
     registered federal trademarks, including, but not limited to the following (the
24
25   “Starbuzz Marks”)
26                 Trademark           Reg. No.         First Use At Least   Exhibit
27                                                         As Early As
28                BLUE MIST           3,619,407         December 1, 2006       A


                                              -3-
                                            Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 4 of 20 Page ID #:4




 1               BLUEBERRY            3,736,577          January 9, 2008     B
                    HAZE
 2               CITRUS MIST          3,695,500          March 4, 2008       C
 3
              COSMOPOLITAN            3,924,277          January 1, 2007     D
 4
 5               HARD RUSH            4,398,440         February 05, 2011    E
 6
                  IRISH KISS          4,291,184         January 27, 2012     F
 7
 8               IRISH PEACH          4,291,175         January 26, 2012     G
 9
                 PASSION KISS         3,543,557           July 15, 2005      H
10
11                    PINK            3,672,967         February 26, 2009     I
12                PINK LADY           3,975,030          March 13, 2009      J
13
14               POMBERRY             3,847,796         January 18, 2010     K

15               SEX ON THE           3,838,818          January 4, 2006     L
16                  BEACH
                  STARBUZZ            3,113,110           April 3, 2005      M
17
18                STARBUZZ            4,032,280         February 25, 2010    N
19
                  STARBUZZ            4,146,752           June 18, 2006      O
20
21              STARBUZZ              3,653,296         January 11, 2005     P
                TOBACCO
22
                STARBUZZ              4,104,682          April 23, 2007      Q
23              TOBACCO
24              STARBUZZ              3,783,438           May 2, 2008        R
              TOBACCO SINCE
25                 2005
26
           10.    At all times relevant herein, Starbuzz has been, and still is, the owner
27
28   of the exclusive rights, title, and interest in the Starbuzz Marks for tobacco and


                                              -4-
                                            Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 5 of 20 Page ID #:5




 1   related products, and has the full and exclusive rights to bring suit to enforce its

 2   trademark rights, including the right to recover for past infringement.
 3
     Starbuzz’s Continuous Use of the Starbuzz Marks
 4
 5         11.    Starbuzz manufactures, distributes, imports, and sells tobacco
 6
     products throughout the United States and internationally. Starbuzz prides itself on
 7
 8   its reputation for high-quality tobacco products. Starbuzz continues to develop
 9   new and popular tobacco products while preserving the quality of its products and
10
     brand identity.
11
12         12.    Plaintiff sells its tobacco products to thousands of customers and
13
     clients, including boutique stores, wholesalers, suppliers and online retailers.
14
15   Plaintiff has used, created and marketed the Starbuzz Marks continuously over the
16
     years. The Starbuzz Marks have brought Plaintiff enormous success, and Plaintiff
17
18   is now known for its high quality products.

19         13.    Plaintiff uses the Starbuzz Marks on advertising brochures,
20
     advertising leaflets, on the Internet, and on the packaging of its tobacco products.
21
22         14.    Starbuzz’s intellectual property and brand identity have substantial
23
     public and consumer recognition.
24
25         15.    The Starbuzz Marks are important as they serve as easily-recognizable
26   identifiers of the high quality goods and services that Plaintiff offers. There is a
27
     particularly close association among consumers between the Starbuzz Marks, and
28


                                               -5-
                                             Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 6 of 20 Page ID #:6




 1   the quality of the tobacco products and services offered under the StarbuzzMarks.

 2   For consumers, customers, vendors, and clients, the Starbuzz Marks are associated
 3
     with original, flavorful, and smooth smoking tobacco of the highest quality.
 4
 5   DEFENDANTS’ WRONGFUL ACTS
 6
           Sales of Infringing Products
 7
 8         16.    The Infringing Marks infringe on Starbuzz’s Marks. The sale of
 9   products bearing the Infringing Marks indicate that Defendants are using the
10
     Infringing Marks in connection with its tobacco products, in direct competition
11
12   with Plaintiff:
13
                                 Mark                  Exhibit
14                            CITRUS KISS                S
15
                              CITRUS MINT                T
16
17                               COSMO                   U
18
                            COSMOPOLITAN                 V
19
20                            FIRST LADY                 W
21
                              HEAD RUSH                  X
22
23                           INDIGO HAZE                 Y
24
                                 KOZMO                   Z
25
26                           PARTY ON THE               AA
                                BEACH
27                            PINKBERRY                 BB
28


                                             -6-
                                           Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 7 of 20 Page ID #:7




 1                               PINKIE                CC
 2                          POMOPOLITAN                DD
 3
                                SKULL                   EE
 4
                               CONTROL
 5                          SHISHA ON THE               FF
 6                              BEACH
                             IRISH CREAM               GG
 7
 8
           17.   Starbuzz is informed and believes, and on that basis alleges, that
 9
10   Danaciyan, as the manager of the domain 5starhookah.com , authorized the sale of
11
     products bearing the Infringing Marks.
12
13         18.   Starbuzz is informed and believes, and on that basis alleges, that
14
     Defendants continue to infringe upon Starbuzz’s Marks since the date they began
15
16   selling products bearing the Infringing Marks.

17         19.   The intentions and bad faith of Defendants’ are further apparent from
18
     their deceptive advertising and marketing tactics. Defendants’ have used and
19
20   continue to use Starbuzz’s Marks in marketing the products sold on their website.
21
           20.   For example, Plaintiff is informed and believes, and on that basis
22
23   alleges, that on February 1, 2013 Defendant 5 Star, posted on Instagram the
24   statement “New e hookah flavors by Starbuzz now available apple doppio and
25
     purple savior #5starhookah #thehookahcartel #theultimatehookahexperience
26
27   #starbuzz #ehookahs” as shown in (Exhibit HH).
28


                                             -7-
                                           Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 8 of 20 Page ID #:8




 1         21.       Plaintiff is informed and believes, and on that basis alleges, that in

 2   another instance, on July 9, 2013, Defendant 5Star posted on Instagram the
 3
     following statement “ Starbuzz bold margarita freeze now available in 100g and
 4
 5   250g #5starhookah #5starhookahlounge #starbuzz #starbuzztobacco” as shown in
 6
     (Exhibit II).
 7
 8         22.       Plaintiff is informed and believes, and on that basis alleges, that on
 9   August 12, 2013, Defendant Danaciyan posted on Tiwtter the following statement
10
     “ #5starhookahlounge#tangiers#hazetobacco#starbuzz” as shown in (Exhibit JJ).
11
12         23.       Hashtags (“#”) are tags used in social media that function similarly to
13
     keywords in search engines, in that they allow a person searching the social media
14
15   posts to display pictures or posts tagged with a specific hashtag. For example, a
16
     search for “#starbuzz” on Twitter or Instagram would display every post
17
18   containing the “#starbuzz” hashtag.

19         24.       By using the “#starbuzz” hashtag to advertise the products sold on
20
     Defendants’ website, Defendants have used Starbuzz's Marks to advertise products
21
22   sold on their website without Starbuzz's authorization.
23
           25.       “Meta tags” are a part of the HTML source code which contains
24
25   keywords that are used to describe the contents of a web page. There are three
26   kinds of meta tags: descriptive meta tags, keywords and robot tags, all of which are
27
     selected and controlled by the author or owner of the website.
28


                                                 -8-
                                               Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 9 of 20 Page ID #:9




 1   Descriptive meta tags describe the content of the document. Keyword meta tags are

 2   used by Internet search engines to help determine whether a particular website
 3
     page is relevant to a search term that has been entered by a search engine user.
 4
 5   Robot meta tags indicate to search engines that certain website pages are not to be
 6
     indexed by the search engine, and should therefore not be retrievable in search
 7
 8   engine results. Meta tags are invisible to the Internet user, but are detectable by
 9   search engine providers and are used by them to index websites on the Internet.
10
            26.       Plaintiff is informed and believes, and on that basis alleges, that
11
12   Defendants are using STARBUZZ® trademark as a Meta Tag to draw consumers
13
     to their site.
14
15          27.       As a result of using STARBUZZ® as a Meta Tag in their site,
16
     Defendants’ site appears when a consumer searches for Starbuzz on Google search
17
18   engine as shown in (Exhibit KK).

19          28.       Given the similar or related nature of Starbuzz's products and those
20
     products sold on Defendants’ website, and Defendants’ blatant use of Starbuzz’s
21
22   Marks to market their products, consumers are likely to be confused as to the
23
     source of Starbuzz's products and Defendants’ products.
24
25   Defendants’ Use of the Infringing Marks is Likely to Cause Confusion
26          29.       Starbuzz is informed and believes, and on that basis alleges, that
27
     Defendants have been selling tobacco products bearing the Infringing Marks.
28


                                                  -9-
                                                Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 10 of 20 Page ID #:10




 1          30.    To date, Defendants have refused to cease their infringing activity.

 2          31.    Starbuzz is informed and believes, and on that basis alleges, that
 3
      Defendants began selling products bearing the Infringing Marks after Plaintiff
 4
 5    began using the Starbuzz Marks for various tobacco products. Therefore,
 6
      Plaintiff’s rights in the Starbuzz Marks have priority over Defendants’ rights in the
 7
 8    Infringing Marks.
 9          32.    Starbuzz is informed and believes, and on that basis alleges, that
10
      Defendants knew of Plaintiff’s prior use of the Starbuzz Marks. Nonetheless,
11
12    Defendants sold products bearing the Infringing Marks.
13
            33.    Starbuzz is informed and believes, and on that basis alleges, that given
14
15    the similar or related nature of Starbuzz’s products and the products sold by
16
      Defendants, and the similarity between the Infringing Marks and the Starbuzz
17
18    Marks, consumers are likely to be confused as to the source of Starbuzz’s products

19    and products sold by Defendants.
20
            34.    Starbuzz is further informed and believes, and on that basis alleges,
21
22    that Defendants intentionally, and in bad faith, sold products bearing the Infringing
23
      Marks to trade on the fame and goodwill associated with the Starbuzz Marks, to
24
25    deceive consumers, vendors and third parties, to attract new business in
26    competition to Starbuzz, and to derive an economic benefit therefrom.
27
28


                                               -10-
                                             Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 11 of 20 Page ID #:11




 1          35.     Defendants knowingly used and continue to use the Infringing Marks

 2    without Starbuzz’s consent or authorization.
 3
            36.     The products that Defendants sell under the Infringing Marks are in
 4
 5    the same category of products, which Plaintiff offers under the Starbuzz Marks.
 6
      Therefore, Defendants’ use of the Infringing Marks is likely to cause consumer
 7
 8    confusion.
 9          37.     Plaintiff and Defendants both sell their products over the Internet and
10
      operate websites advertising their products on the Internet. Plaintiff and
11
12    Defendants thus have convergent marketing channels.
13
            38.     Therefore, Defendants’ use of convergent marketing channels
14
15    increases the likelihood of consumer confusion.
16
            39.     Defendants’ continued sale of products bearing the Infringing Marks
17
18    is thus likely to lead consumers, retailers, wholesalers, and vendors to mistakenly

19    conclude that products sold by Defendants are somehow otherwise affiliated,
20
      connected, or associated with Starbuzz. Consumers are likely to be misled and
21
22    confused as to the true source, sponsorship, or affiliation of products sold by
23
      Defendants.
24
25          40.     On information and belief, by this conduct, including their advertising
26    activities and unauthorized use of Starbuzz’s marks to describe the items that they
27
      are distributing, Defendants have misappropriated Starbuzz’s advertising ideas and
28


                                                -11-
                                              Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 12 of 20 Page ID #:12




 1    style of doing business and have infringed Starbuzz’s trademarks, titles, and

 2    slogans.
 3
                             FIRST CLAIM FOR RELIEF
 4
              [Trademark Infringement Under Lanham Act 15 U.S.C. §1114]
 5                             (Against All Defendants)
 6
            41.    Starbuzz re-alleges and incorporates by this reference all prior
 7
 8    paragraphs as if fully set forth herein.
 9          42.    Defendants’ use of the Infringing Marks to promote, market, or sell
10
      tobacco products constitutes trademark infringement pursuant to 15 U.S.C. §1114.
11
12          43.    Defendants have promoted, sold, and marketed, and continue to
13
      promote, sell, and market tobacco products bearing the Infringing Marks, which
14
15    are identical or confusingly similar to Starbuzz’s Marks.
16
            44.    Starbuzz’s Marks are highly distinctive, arbitrary and/or fanciful, and
17
18    are entitled to strong trademark protection.

19          45.    Defendants continue to promote, sell and market tobacco products
20
      under the Infringing Marks, in direct competition with Starbuzz’s products, which
21
22    Starbuzz promotes, sells, and markets under the Starbuzz Marks. .
23
            46.    Defendants’ Infringing Marks are so similar in appearance,
24
25    pronunciation, meaning, and commercial impression to Starbuzz’s Marks, that
26    consumers are likely to be confused as to the source of the parties’ products.
27
28


                                                   -12-
                                                 Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 13 of 20 Page ID #:13




 1          47.    Starbuzz is informed and believes, and on that basis alleges, that

 2    Defendants market and sell their products throughout the United States through
 3
      various channels, including over the Internet. These are the same channels through
 4
 5    which Starbuzz markets and sells its goods.
 6
            48.    Starbuzz is informed and believes, and on that basis alleges, that
 7
 8    Defendants intentionally and willfully sold products bearing the Infringing Marks
 9    in an effort to deceive or cause confusion with the consuming public.
10
            49.    Defendants’ attempts to cause confusion, or to cause mistake, or to
11
12    deceive further indicate an intentional and willful infringement upon Starbuzz’s
13
      Marks.
14
15          50.    Defendants’ refusal to cease using the Infringing Marks also
16
      demonstrates Defendants’ intentional and willful infringement upon Starbuzz’s
17
18    Marks.

19          51.    Defendants’ intentional, continuing and willful infringement of
20
      Starbuzz’s Marks has caused and will continue to cause damage to Starbuzz, and is
21
22    causing irreparable harm to Starbuzz for which there is no adequate remedy at law.
23
            52.    Defendants are directly, contributorily and/or vicariously liable for
24
25    these actions.
26                          SECOND CLAIM FOR RELIEF
27             [Trademark Infringement - False Designation of Origin Under
                         Lanham Act 15 U.S.C. §1125(a)(1)(A)]
28
                                (Against All Defendants)

                                               -13-
                                             Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 14 of 20 Page ID #:14




 1
            53.     Starbuzz re-alleges and incorporates by this reference all prior
 2
 3    paragraphs as if fully set forth herein.
 4          54.     In connection with tobacco products, Defendants knowingly and
 5
 6    willfully used in commerce, words, terms, names, symbols, or devices, or a

 7    combination thereof, which are likely to cause confusion, or to cause mistake, or to
 8
      deceive as to the affiliation, connection, or association of Defendants with
 9
10    Starbuzz, or as to the origin, sponsorship, or approval of the goods sold by
11
      Defendants.
12
13          55.     Starbuzz is informed and believes, and on that basis alleges, that
14    Defendants willfully and intentionally created a false or misleading affiliation,
15
      connection, or association between the goods sold by Defendants with Starbuzz’s
16
17    goods.
18
            56.     Starbuzz is informed and believes, and on that basis alleges, that
19
20    Defendants used words, terms, names, symbols, or devices, or a combination
21    thereof, which are similar to Starbuzz’s Marks, or willfully and intentionally
22
23    marketed goods and services with words, terms, names, symbols, or devices, or a

24    combination thereof similar to Starbuzz’s Marks.
25
            57.     Starbuzz is informed and believes, and on that basis alleges, that
26
27    Plaintiff’s use of the Starbuzz Marks in commerce precedes Defendants’ use of the
28
      Infringing Marks in interstate commerce.

                                                   -14-
                                                 Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 15 of 20 Page ID #:15




 1           58.   Starbuzz is informed and believes, and on that basis alleges, that

 2    Defendants’ aforesaid acts were done with knowledge of Starbuzz’s trademarks,
 3
      and the knowledge that use of such words, terms, names, symbols, or devices, or a
 4
 5    combination thereof, were misleading.
 6
             59.   Defendants’ intentional and willful infringement of Starbuzz’s
 7
 8    trademarks has caused and will continue to cause damage to Starbuzz, and is
 9    causing irreparable harm to Starbuzz for which there is no adequate remedy at law.
10
             60.   Starbuzz was damaged by these acts in an amount to be proven at
11
12    trial. Defendants’ actions have caused and will continue to cause irreparable harm
13
      to Starbuzz for which there is no adequate remedy at law, thus Starbuzz is also
14
15    entitled to injunctive and equitable relief against Defendants, under the Lanham
16
      Act.
17
18           61.   Defendants are directly, contributorily, and/ or vicariously liable for

19    these actions.
20
                               THIRD CLAIM FOR RELIEF
21                      [Unfair Competition – Violation of California
22                      Business and Professions Code §17200 et seq.]
23                                (Against All Defendants)

24           62.   Starbuzz re-alleges and incorporates by this reference all prior
25
      paragraphs as if fully set forth herein.
26
27           63.   Starbuzz is informed and believes, and on that basis alleges, that
28
      Defendants’ aforesaid acts constitute actionable wrongs under California Business

                                                   -15-
                                                 Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 16 of 20 Page ID #:16




 1    and Professions Code §17200 et seq. in that Defendants’ unlawful, unfair, or

 2    fraudulent use of words, terms, names, symbols, or devices, or a combination
 3
      thereof, which are similar to Starbuzz’s Marks, create a probability of confusion or
 4
 5    misunderstanding as to the source, sponsorship, approval, or certification of
 6
      Starbuzz’s and Defendants’ goods.
 7
 8          64.    Starbuzz is informed and believes, and on that basis alleges, that
 9    Defendants offered and continue to market goods using words, terms, names,
10
      symbols, or devices, or a combination thereof, which are similar to Starbuzz’s
11
12    Marks, in an attempt to unfairly compete with Starbuzz.
13
            65.    Starbuzz is further informed and believes, and on that basis alleges,
14
15    that Defendants have also been attempting to unfairly compete with Starbuzz
16
      through the use of deceptive and/or misleading advertising.
17
18          66.    By reason of the foregoing unlawful acts, Defendants have caused,

19    and continue to cause, substantial and irreparable damage and injury to Starbuzz
20
      and to the public. Defendants have benefited from such unlawful conduct, and will
21
22    continue to carry out such unlawful conduct and to be unjustly enriched thereby
23
      unless enjoined by this Court.
24
25          67.    As a proximate and direct result of Defendants’ acts as herein alleged,
26    Starbuzz has sustained damages in an amount to be proven at trial.
27
28


                                               -16-
                                             Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 17 of 20 Page ID #:17




 1          68.    Defendants are directly, contributorily and/or vicariously liable for

 2    these actions.
 3
                             FOURTH CLAIM FOR RELIEF
 4                For Imposition of a Constructive Trust Upon Illegal Profits
 5
 6          69.    Starbuzz re-alleges and incorporates by this reference all prior

 7    paragraphs of this Complaint as if fully set forth herein.
 8
            70.    Defendants’ conduct constitutes deceptive, fraudulent and wrongful
 9
10    conduct in the nature of passing off the infringing materials as approved or
11
      authorized by Starbuzz.
12
13          71.    By virtue of the wrongful conduct, Defendants have illegally received
14    money and profits that rightfully belong to Starbuzz.
15
            72.    Upon information and belief, Defendants hold the illegally received
16
17    money and profits in the form of bank accounts, real property, or personal property
18
      that can be located and traced.
19
20          73.    Defendants hold the money and profits illegally received as a
21    constructive trustee for the benefit of Starbuzz.
22
23                               FIFTH CLAIM FOR RELIEF
                                        Accounting
24
25          74.    Starbuzz re-alleges and incorporates by this reference all prior
26    paragraphs as if fully set forth herein.
27
28


                                                   -17-
                                                 Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 18 of 20 Page ID #:18




 1          75.    Starbuzz is entitled, pursuant to 17 U.S.C. § 504 and 15 U.S.C. §

 2    1117, to recover any and all profits of Defendant that are attributable to the acts of
 3
      infringement.
 4
 5          76.    Starbuzz is entitled, pursuant to 17 U.S.C. § 504 and 15 U.S.C. §
 6
      1117, to actual damages or statutory damages sustained by virtue of Defendants’
 7
 8    acts of infringement.
 9          77.    The amount of money due from Defendants to Starbuzz is unknown to
10
      Starbuzz and cannot be ascertained without a detailed accounting by Defendants of
11
12    the precise number of units of infringing material offered for distribution and
13
      distributed by Defendant.
14
15                                 PRAYER FOR RELIEF
16
            WHEREFORE, Starbuzz requests entry of judgment in its favor and against
17
18    Defendants as follows:

19          A.     A permanent injunction prohibiting Defendants from:
20
            1) using the infringing marks, CITRUS KISS, CITRUS MINT, COSMO,
21
22    COSMOPOLITAN, FIRST LADY, HEAD RUSH, INDIGO HAZE, KOZMO,
23
      PARTY ON THE BEACH, PINKBERRY, PINKIE, POMOPOLITAN, SKULL
24
25    CONTROL, SHISHA ON THE BEACH, and IRISH CREAM, alone or in
26    combination with other words, symbols or designs including in any manner in
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      connection with tobacco products;
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                                                -18-
                                              Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 19 of 20 Page ID #:19




 1          2) from using any representations of fact in connection with its

 2    products, which are likely to cause confusion, or to cause mistake or to deceive as
 3
      to the affiliation, connection or association of Starbuzz or Starbuzz’s Marks, or as
 4
 5    to the origin, sponsorship or approval of Defendants’ products by Starbuzz;
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            B.     Compensatory damages and disgorgement of Defendants’ profits
 7
 8    from the sale of goods in connection with which Defendants have used the
 9    infringing marks under 15 U.S.C. § 1117;
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            C.     Treble damages pursuant to 15 U.S.C. § 1117;
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12          D.     Punitive damages;
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            E.     Prejudgment interest, costs, expenses, and reasonable attorneys’ fees;
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15    and
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            F.     Such other and further relief as this court may deem just and proper.
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      DATED: May 20, 2014                            Respectfully Submitted,
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20                                                   /s/ Martin Jerisat
                                                     Martin E. Jerisat
21                                                   Attorneys for Plaintiff
22                                                   Starbuzz Tobacco,
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                                               -19-
                                             Complaint
     Case 8:14-cv-00788-DOC-JCG Document 1 Filed 05/21/14 Page 20 of 20 Page ID #:20




 1                          DEMAND FOR TRIAL BY JURY
 2          Plaintiff Starbuzz Tobacco, Inc. hereby demands a trial by jury on all
 3
      triable counts.
 4
 5
 6    DATED: May 20, 2014                           Respectfully Submitted,

 7                                                  /s/ Martin Jerisat
 8                                                  Martin E. Jerisat
                                                    Attorneys for Plaintiff
 9                                                  Starbuzz Tobacco, Inc.
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                                              -20-
                                            Complaint

								
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