rufflebutts v rufflebuns complaint.pdf

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					         Case 2:14-cv-00422-BCW Document 2 Filed 06/04/14 Page 1 of 18




Stephen J. Trayner, #4928
Casey W. Jones, #12133
STRONG & HANNI
102 South 200 East, Suite 800
Salt Lake City, UT 84111
Phone: 801-532-7080
Fax: 801-596-1508
strayner@strongandhanni.com
cjones@strongandhanni.com
Attorneys for Plaintiff


                       IN THE UNITED STATES DISTRICT COURT
                        DISTRICT OF UTAH, CENTRAL DIVISION


RUFFLEBUTTS, INC.,
a Texas corporation,                                              COMPLAINT
       Plaintiff,                                                (Jury Demanded)
v.                                                     Case No. _____________________
MOTHERS LOUNGE, LLC, dba Ruffle Buns,                     Judge ____________________
a Utah limited liability company,

       Defendant.


       Plaintiff RuffleButts, Inc. (“Plaintiff”) hereby complains against Defendant Mothers

Lounge, LLC, dba Ruffle Buns, (“Defendant”) and alleges as follows:

                    NATURE OF ACTION, JURISDICTION AND VENUE

       1.       This is a civil action for trademark infringement and unfair competition in

violation of the Lanham Act, 15 U.S.C. §§ 1051 et seq, as well as violations of state laws as set

forth herein.
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       2.      This Court has original jurisdiction over the subject matter of this action under

Section 39 of the Lanham Act, 15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331 and 1338. This Court

has supplemental jurisdiction over Plaintiff’s claims under 28 U.S.C. §§ 1338(b) and 1367(a).

       3.      Upon information and belief, Defendant resides, has transacted business, has

contracted to supply goods or services, and/or has caused injury within the State of Utah, and has

otherwise purposely availed itself of the privileges and benefits of the laws of the State of Utah,

and therefore is subject to the jurisdiction of this Court pursuant to Rule 4(k)(1)(A) of the

Federal Rules of Civil Procedure and Utah Code Ann. § 78B-3-205 (2008).

       4.      Venue is proper in this judicial District pursuant to 28 U.S.C. §1391.

                                         THE PARTIES

       5.      Plaintiff is a corporation duly organized and existing under the laws of the State

of Texas, with its principal place of business located at 4055 Corporate Drive, Suite 200,

Grapevine, Texas 76051.

       6.      On information and belief, Defendant is a limited liability company organized

under the laws of the State of Utah, with its principal place of business in Utah County, Utah.

       7.      On information and belief, Kaleb and Jeanette Pierce (aka Jenny Pierce), are

Defendant’s owners/members and managers.

                                 FACTUAL BACKGROUND

       8.      Plaintiff is a famous retailer of children’s clothing and sells a wide variety of

clothing under the name RUFFLEBUTTS®.




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       9.      Plaintiff first started selling children’s clothing under the RUFFLEBUTTS mark

in interstate commerce in 2007, and now sells to over 2000 retail locations in the United States

(including Utah) and throughout the world, including 49 different countries.

A.     Plaintiff’s Trademark Rights and Registrations

       10.     Plaintiff owns the following trademark registrations:

               (a)      U.S. Trademark Registration No. 3,448,162 for the word mark

“RUFFLEBUTTS” in standard characters (“RUFFLEBUTTS Mark”), based on actual use of the

mark in interstate commerce at least as early as April 20, 2007, which registered on June 17,

2008, for use with “Clothing, namely, Infant diaper covers, shirts, shorts, pants, leggings, leg

warmers, dresses, skirts, and Infant and toddler one piece clothing,” in International Class 025.

A true and correct copy of the registration certificate is attached as Exhibit A.

               (b)      U.S. Trademark Registration No. 3,961,375 for the word mark “RUFFLE

RUMPS” in standard characters (“RUFFLE RUMPS Mark”), based on actual use of the mark in

interstate commerce from at least as early as September 9, 2008, which registered on May 17,

2011, for use with “Clothing, namely, baby diaper covers, shirts, shorts, pants, leggings, leg

warmers, dresses, skirts, swim wear, and infant and toddler one piece clothing,” in International

Class 025. A true and correct copy of the registration certificate is attached as Exhibit B.

               (c)     U.S. Trademark Registration No. 4,019,013 for the word mark “RUGGED

BUTTS” in standard characters (“RUGGED BUTTS Mark”), based on actual use of the mark in

interstate commerce from at least as early as January 30, 2011, which registered on August 30,

2011, for use with “Clothing, namely, baby diaper covers, shirts, shorts, pants, leggings, ties,




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hats, leg warmers, underwear, pajamas, swim wear, footwear, and infant and toddler one piece

clothing,” in International Class 025. A true and correct copy of the registration certificate is

attached as Exhibit C.

               (d)       U.S. Trademark Registration No. 4,395,239 for the word mark “RUFFLY

RUMPS” in standard characters (“RUFFLY RUMPS Mark”), based on actual use of the mark in

interstate commerce at least as early as July 1, 2011, which registered on September 3, 2013, for

use with “Clothing, namely, Infant diaper covers, shirts, shorts, pants, leggings, leg warmers,

dresses, skirts, and Infant and toddler one piece clothing,” in International Class 025. A true and

correct copy of the registration certificate is attached as Exhibit D.

       All U.S. Trademark Registrations identified in this Paragraph 10, including the

RUFFLEBUTTS Mark, RUFFLE RUMPS Mark, RUGGED BUTTS Mark, and RUFFLY

RUMPS Mark are hereinafter referred to as “Plaintiff’s Marks.”

       11.     The RUFFLEBUTTS Mark is incontestable pursuant to Section 15 of the Lanham

Act, 15 U.S.C. §1065.

       12.     Pursuant to Section 22 of the Lanham Act, 15 U.S.C. § 1072, Plaintiff’s

registrations constitute constructive notice of Plaintiff’s ownership rights in its trademarks.

       13.     Plaintiff has developed extensive recognition and goodwill for the goods and

services sold under the Plaintiff’s Marks, among both Plaintiff’s immediate customers and the

consuming public, generally.




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       14.     Plaintiff sells clothing for children, including but not limited to, infant diaper

covers, shirts, shorts, pants, leggings, hats, dresses, swimsuits, leg warmers, bloomers, skirts,

rompers, etc. (collectively, “Clothing”).

       15.     Plaintiff sells its Clothing to more than 2,000 retail locations throughout Utah, the

United States, 48 other countries, and through its website, rufflebutts.com.

       16.     Plaintiff has spent a substantial amount of money on advertising for its Clothing,

both nationally and internationally, for the past seven years.

       17.     Plaintiff’s Clothing has been advertised and featured in many national magazines,

including but not limited to, US Weekly, Parenting Magazine, Parents Magazine, American

Baby Magazine, Life & Style Magazine, Baby & Children’s, and Product New Magazine.

       18.     Plaintiff’s Clothing has been featured on many national television shows,

including but not limited to, the Ellen Show, Anderson Show, Giuiana & Bill on E!, Shark Tank

on ABC, and the Today Show.

       19.     Plaintiff’s Clothing has been photographed and/or publically noted by many

celebrities and public figures, including but not limited to, Jessica Alba, Jessica Simpson, Brooke

Anderson, Bethenny Frankel, Ali Landry, and Rebecca Romijn.

       20.     As a result of, inter alia, Plaintiff’s substantial investment in Plaintiff’s Marks and

goods marketed under those trademarks, the consuming public recognizes Plaintiff’s Marks and

associates products with those marks with a single source, namely Plaintiff.




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B.      Defendant’s Deceptive Actions

        21.     On or about October 23, 2012, Defendant’s owners, Kaleb and Jenny Pierce,

purchased 21 of Plaintiff’s pink ruffled bloomer in every available size which raised a red flag

with Plaintiff’s customer service team. A true and correct copy of the two order confirmations,

dated October 23, 2014, are attached hereto as Exhibit E.

        22.     On or about October 24, 2012, Amber Schaub (“Mrs. Schaub”), Plaintiff’s co-

founder and CEO, called the number on the order and spoke with Kaleb Pierce (“Mr. Pierce”).

        23.     During the telephone conversation, Mrs. Schaub inquired as to why Mr. Pierce

purchased 21 ruffled bloomers.

        24.     Mr. Pierce indicated that he intended to start a new company and copy Plaintiff’s

business.

        25.     Mrs. Schaub asked Mr. Pierce to respect her business’s intellectual property rights

and not copy her business or name but Mr. Pierce told Mrs. Schaub that she could not stop him.

        26.     Mrs. Schaub canceled Defendant’s October 23, 2012 order but upon information

and belief, Defendant made additional orders using different names and addresses.

        27.     Upon information and belief, Defendant obtained Plaintiff’s product from

Plaintiff’s reseller, Zulily.

        28.     It came to Plaintiff’s attention in May 2014 that Defendant had begun using the

domain name and website, rufflebuns.com, to sell its children’s clothing under the name Ruffle

Buns. A copy of the website page rufflebuns.com is attached hereto as Exhibit F.




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       30.     Defendant adopted its RUFFLE BUNS mark intentionally to copy Plaintiff’s

Marks, and to position Defendant’s products to Plaintiff’s customers.

       31.     On information and belief, Defendant has designed its product to look similar to

Plaintiff’s products, including the design and the labeling. By way of example and as shown in

the pictures below, Defendant places three ruffles on their bloomers similar to Plaintiff’s

bloomers. Defendant also places the label in the same spot on the bloomer and uses the same

ruffle at the leg, and the same stiching on the ruffle around the leg.

       Defendant’s Product:




       Plaintiff’s Product:




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        32.     On information and belief, Defendant created its website to mirror Plaintiff’s

website.

        33.     Defendant’s RUFFLE BUNS mark is confusingly similar to Plaintiff’s Marks,

including but not limited to the RUFFLEBUTTS Mark.

        34.     Defendant’s use of its RUFFLE BUNS mark is likely to cause confusion, mistake,

or deception in the minds of the public as to the source of Defendant’s products and/or its

affiliation with Plaintiff.

        35.     Defendant has a history of starting businesses by copying other companies’

intellectual property.

                                     FIRST CAUSE OF ACTION
                          (Federal Trademark Infringement, 15 U.S.C. § 1114)

        36.     By this reference Plaintiff realleges and incorporates the above allegations as

though fully set forth herein.

        37.     Plaintiff has not granted Defendant permission to use or register any trademark,

design, or logo.

        38.     Defendant’s use of the RUFFLE BUNS mark is likely to cause confusion, mistake

or deception as to the sponsorship, affiliation, endorsement, connection, association, source or

origin of Defendant’s products, or as to the approval of Defendant’s products or services by

Plaintiff, and thus constitutes infringement of Plaintiff’s Marks, including but not limited to its

RUFFLEBUTTS Mark.




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           39.   Defendant’s activities and the use of the RUFFLE BUNS mark, were undertaken

with the full knowledge of Plaintiff’s rights, with the intent to confuse and deceive the public, to

trade on Plaintiff’s goodwill, and therefore, has been intentional, deliberate, and willful.

           40.   Defendant will, if not enjoined by this Court, continue its acts of trademark

infringement set forth above, which have caused and will continue to cause Plaintiff immediate

and irreparable harm.

           41.   Plaintiff has no adequate remedy at law for the damage to its reputation and

goodwill and will continue to be irreparably damaged unless Defendant is permanently enjoined

pursuant to Section 34 of the Lanham Act, 15 U.S.C. § 1116, from its infringing and improper

conduct.

           42.   Defendant’s violation of 15 U.S.C. § 1114 has caused, and is causing Plaintiff

damage in an amount to be established at trial, including Defendant’s profits and Plaintiff’s lost

profits.

           43.   Pursuant to Section 35 of the Lanham Act, 15 U.S.C. § 1117, Plaintiff is entitled

to a judgment for damages not to exceed three times the amount of its actual damages, together

with interest thereon, in an amount to be determined at trial.

                            SECOND CAUSE OF ACTION
       (Federal Unfair Competition / False Designation of Origin, 15 U.S.C. § 1125(a))

           44.   By this reference Plaintiff realleges and incorporates the above allegations as

though fully set forth herein.

           45.   Defendant designed its products targeted toward customers of Plaintiff.




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       46.     Plaintiff’s Marks have become uniquely associated with Plaintiff and children’s

clothing, and other products, and hence identify Plaintiff as the source of goods bearing the

Plaintiff Marks, including but not limited to its RUFFLEBUTTS Mark. Defendant’s interstate

use of the RUFFLE BUNS mark, as described above, is confusingly similar to Plaintiff’s Marks,

including but not limited to its RUFFLEBUTTS Mark. Defendant’s commercial advertising,

promotion, and sales in interstate commerce of the RUFFLE BUNS mark, constitutes passing

off, unfair competition, a false designation of origin, a false and misleading representation, and

wrongfully and falsely designates Defendant’s products as originating from, or being sponsored

by, affiliated with, endorsed by, or being connected with Plaintiff. Such usage of the designation

the RUFFLE BUNS mark, by Defendant in connection with the advertising and sale of

children’s clothing made for diaper covers in particular, is likely to cause confusion, mistake or

deception of the purchasing public, as to the nature, source or origin of Defendant’s products, or

is likely to cause the purchasing public to wrongly believe that Defendant’s products are

sponsored by, affiliated with, endorsed by, or otherwise associated or connected with Plaintiff.

       47.     Defendant’s registration and use in commerce of the Defendant’s website domain

name www.rufflebuns.com (hereinafter “Defendant’s Website”), has a tendency to deceive or

confuse consumers into believing that Defendant, and/or Defendant’s Website, is a source for

Plaintiff’s clothing products, and that products sold at Defendant’s Website have their origin

with Plaintiff, or that such products are sponsored by, affiliated with, endorsed by, or otherwise

connected with Plaintiff.




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           48.   Defendant’s acts described above have caused and are causing irreparable injury

to Plaintiff and Plaintiff’s Marks, including its RUFFLEBUTTS Mark, and to the business and

goodwill represented thereby, and unless enjoined, will cause further irreparable injury, whereby

Plaintiff has no adequate remedy at law.

           49.   By engaging in the activities described above, Defendant has made and is making

false, deceptive, and misleading statements constituting false representations and false

advertising in connection with services distributed in interstate commerce in violation of Section

43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

           50.   Defendant’s violation of 15 U.S.C. § 1125(a) has caused Plaintiff to suffer

damages in an amount to be established at trial, including Defendant’s profits and Plaintiff’s lost

profits.

           51.   Pursuant to Section 15 U.S.C. § 1117, Plaintiff is entitled to a judgment for

damages not to exceed three times the amount of its actual damages, together with interest

thereon, in an amount to be determined at trial.

                               THIRD CAUSE OF ACTION
                      (INFRINGEMENT AND UNFAIR COMPETITION)

           52.   By this reference Plaintiff realleges and incorporates the above allegations as

though fully set forth herein.

           53.   Defendant, by its actions set forth hereinabove, has engaged in intentional

business acts or practices that are unlawful, unfair, and/or fraudulent, including the infringement

of Plaintiff’s Marks, and that have caused a material diminution in the value of the trademarks,




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tradenames, and other intellectual property held by Plaintiff, in violation of, inter alia, Utah

Code Ann. § 13-5a-101 et seq.

       54.     By reason of the foregoing, Plaintiff has suffered damages and irreparable harm.

       55.     By reason of the foregoing, Plaintiff is entitled to actual and punitive damages

from Defendant, along with its attorneys’ fees and costs pursuant to at least Utah Code Ann. §

13-5a-103(1)(b) as more fully set forth herein.

       56.     Defendant’s acts, as set forth above, also constitute common law trademark

infringement, unfair competition, false representation and false designation of origin under 15

U.S.C. § 1125(a).

                           FOURTH CAUSE OF ACTION
                (FEDERAL TRADEMARK DILUTION – 15 U.S.C. § 1125(c))

       57.     By this reference Plaintiff realleges and incorporates the above allegations as

though fully set forth herein.

       58.     Plaintiff is the owner and senior user of its Plaintiff Marks as described above.

       59.     Plaintiff’s Marks including its word mark “RUFFLEBUTTS,” are federally

registered, distinctive, well known, and famous among persons who purchase children’s clothing

of the quality and at the price point of clothing sold by Plaintiff and Defendant.

       60.     Defendant’s conduct and adoption and use of “RUFFLE BUNS” and Defendant’s

Website as described above with its products has diluted the distinctive quality, fame and value

associated with Plaintiff’s Marks, including but not limited to the RUFFLEBUTTS Mark.

       61.     Defendant willfully intended to trade on Plaintiff’s reputation and to cause

dilution of Plaintiff’s Marks as set forth herein.


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       62.     Plaintiff has been and continues to be damaged by Defendant’s unlawful conduct.

Accordingly, Defendant’s said acts are unlawful and in violation of 15 U.S.C. 1125(c).

                                   FIFTH CAUSE OF ACTION
                                 (ACTION FOR ACCOUNTING)

       63.     By this reference Plaintiff realleges and incorporates the above allegations as

though fully set forth herein.

       64.     By wrongly continuing to use the confusing and infringing “RUFFLE BUNS”

mark, and thus representing to their customers and the public that they are entitled to use the

marks and domain names www.rufflebuns.com, Defendant acted in conflict with Plaintiff’s

rights in and to the registered Plaintiff Marks.

       65.     Plaintiff is entitled to an order that Defendant account to Plaintiff for all

Defendant’s profits realized by virtue of Defendant’s unlawful acts as set forth herein, including

for all clothing products sold, and all other products sold, through Defendant’s Website, bearing

the mark “RUFFLE BUNS.”

       66.     Plaintiff is entitled to review all of Defendant’s business records to determine the

extent to which Defendant wrongfully profited from use of Defendant’s confusing and infringing

“RUFFLE BUNS” designation.

                                SIXTH CAUSE OF ACTION
             (Deceptive Trade Practices under Utah Code Ann. § 13-11a-1, et seq.)

       67.     By this reference Plaintiff realleges and incorporates the above allegations as

though fully set forth herein.




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          68.   Defendant, by its actions as set forth hereinabove, has caused, is causing, and will

continue to cause a likelihood of confusion or of misunderstanding as to the source, sponsorship,

approval, or certification of its products; has caused, is causing, and will continue to cause a

likelihood of confusion or misunderstanding as to the affiliation, connection, association with, or

certification by another of its products; represented, represent, and will continue to represent that

its goods have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that

they do not have; and have thereby engaged in deceptive trade practices, pursuant to, inter alia,

Utah Code Ann. §§ 13-11a-3(1)(b), (c), and (e).

          69.   Defendant's conduct as set forth hereinabove gives rise to a cause of action for

deceptive trade practices and related wrongs under the statutory and common law of the State of

Utah and other states, including at least Utah Code Ann. § 13-lla-l, et seq.

          70.   On information and belief, Defendant has engaged in deceptive trade practices

against Plaintiff in willful and deliberate disregard of the rights of Plaintiff and the consuming

public.

          71.   By reason of Defendant's deceptive trade practices, Plaintiff has suffered damages

and irreparable harm.

          72.   By reason of the foregoing, Plaintiff is entitled to injunctive and monetary relief

against Defendant, along with its attorneys’ fees and costs, pursuant to at least Utah Code Ann.

§§ 13-1Ia-4(2)(a), (b), and (c).




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        Case 2:14-cv-00422-BCW Document 2 Filed 06/04/14 Page 15 of 18




                                     PRAYER FOR RELIEF

       WHEREFORE, Plaintiff respectfully prays for judgment in its favor and against

Defendant as follows:

       1.      For judgment that Defendant’s conduct infringes Plaintiff’s rights in Plaintiff’s

Marks, including but not limited to, the RUFFLEBUTTS Mark;

       2.      For a preliminary and permanent injunction, enjoining and restraining Defendant,

its agents, servants, representatives, successors, assigns, and others in active concert or

participation with them,

               (a)      from using the “RUFFLE BUNS” designation, or any variations thereof,

or any other mark confusingly similar thereto or likely to cause injury to Plaintiff’s business

reputation, in connection with any service or products;

               (b)      from using any other trademark, service mark, trade name, corporate

name, word or symbol, or doing any other acts, likely to induce the belief that Defendant’s goods

or business are Plaintiff’s goods or business, or that Defendant is in any way connected,

endorsed, sponsored or associated with Plaintiff or with Plaintiff’s products, service or business

or doing any other acts likely to injure Plaintiff’s business reputation or to dilute the distinctive

quality of the Plaintiff Marks;

               (c)      otherwise engaging in acts of unfair competition, dilution of trademarks,

and interference with Plaintiff’s business relationships;

               (d)      directing Defendant to deliver to Plaintiff to possess, control and dispose

of, all clothing in its possession, use or control bearing any enjoined trademark; and




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               (e)    with such injunction including a provision directing Defendant to file with

the Court and serve on Plaintiff within thirty (30) days after the service on Defendant of such

injunction a report in writing under oath setting forth in detail the manner and form in which

Defendant has complied with the injunction.

        3.     For damages in an amount to be proven at trial for trademark infringement under

Section 32 of the Lanham Act, 15 U.S.C. § 1125(a);

        4.     For an order holding that Defendant’s activities constitute unfair competition,

false designation of origin, false representation and false advertising under the Lanham Act.

        5.     For an order holding that Defendant’s activities constitute common law trademark

infringement, unfair competition, unfair trade practices, intentional interference with economic

advantage, and misappropriation under the federal Lanham Act and under the laws of the State of

Utah.

        6.     For an order holding that Defendant’s activities constitute trademark dilution

under the federal Lanham Act and under the laws of the State of Utah.

        7.     For an accounting of Defendant’s profits as requested herein; and accounting

numerically for each item of clothing or other products sold, in inventory, and on order, which

bears any trademark Defendant is enjoined from using.

        8.     For an award of three times Defendant’s profits or Plaintiff’s damages, whichever

is greater, pursuant to at least Section 35(b) of the Lanham Act, 15 U.S.C. § 1117(b);

        9.     For an award of Plaintiff’s attorneys’ fees and costs in bringing this action,

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




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          10.   For punitive damages in an amount to be determined at trial.

          11.   For prejudgment interest, pursuant to at least Section 35(b) of the Lanham Act, 15

U.S.C. §1l17(b);

          12.   For an award of Plaintiff’s actual damages against Defendant as a result of

Defendant’s deceptive trade practices, or $2,000, whichever is greater;

          13.   For an order of this Court permanently enjoining Defendant, its agents and

servants, and any and all parties acting in concert with any of them, from engaging in deceptive

trade practices, pursuant to Utah Code Ann. § 13-11a-4(2)(a);

          14.   For an award of actual and punitive damages pursuant to Utah Code Ann. §13-5a-

103(b);

          15.   For an award of Plaintiff’s costs in bringing this action pursuant to applicable

state statutory and common law, including at least Utah Code Ann. §§ 13-5a-l03(l)(b)(ii) and 13-

11a-4(2)(c);

          16.   For an award of Plaintiff’s attorneys’ fees pursuant to applicable state statutory

and common law, including at least Utah Code Ann. §§ 13-5a-l03(l)(b)(ii) and 13-11(a)-4(2)(c);

          17.   For an imposition of a constructive trust on, and an order requiring a full

accounting of, the sales made by Defendant as a result of its wrongful or infringing acts alleged

herein;

          18.   For post-judgment interest, pursuant to at least 28 U.S.C. §1961(a);

          19.   For any other relief requested in the body of the Complaint not specifically

identified in this Prayer for Relief; and




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 Case 2:14-cv-00422-BCW Document 2 Filed 06/04/14 Page 18 of 18




20.    For such other and further relief as this Court may deem just and proper.

                         DEMAND FOR JURY TRIAL

Plaintiff demands trial by jury on all claims and issues so triable.

DATED this 4th day of June, 2014.

                                       STRONG & HANNI

                                              /s/ Casey W. Jones
                                       By: _____________________________
                                           Stephen J. Trayner
                                           Casey W. Jones
                                           Attorneys for Plaintiff




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