8:15-cv-00029 Doc # 1 Filed: 01/21/15 Page 1 of 8 - Page ID # 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

BLUE MARTINI FOUNDERS, LLC,

Case No._____________

Plaintiff,
vs.

COMPLAINT

MAGGIE DIAZ, an individual; SADLE

ENTERPRISES, INC., a Nebraska corporation
d/b/a Blue Martini Lounge; and DOES 1-10,
inclusive,

JURY TRIAL DEMAND

Defendants.

COMPLAINT
Plaintiff Blue Martini Founders, LLC (BMF or Plaintiff) files this Complaint against
Defendants Maggie Diaz (Diaz) and Sadle Enterprises, Inc., d/b/a Blue Martini Lounge
Omaha, Nebraska (Sadle) (Diaz and Sadle collectively referred to herein as Defendants)
and alleges as follows:
NATURE OF ACTION
1.

This is an action for trademark infringement under the Lanham Act (15 U.S.C.

1114 and 1125(a)) and for violations of the Nebraska Deceptive Trade Practices Act (Neb.
Rev. Stat. 87-301 87-306).
PARTIES
2.

Plaintiff is a Florida limited liability company, with a principal place of business

at 477 South Rosemary Avenue, Suite 309, West Palm Beach, Florida 33401.
3.

Sadle Enterprises, Inc., (Sadle) is a Nebraska corporation with its principal

place of business at 10730 Pacific Street, Suite 113, Omaha, Nebraska 68114, which does

4835-2385-7185.5

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business as a bar or nightclub called Blue Martini Lounge located at the same address.
4.

Defendant Maggie Diaz is an individual residing in Omaha, Nebraska.

5.

Plaintiff is currently unaware of the true names and capacities of the Defendants

named herein as Does 1 through 10, inclusive, and Plaintiff therefore sues said Defendants by
those fictitious names. Plaintiff will request leave of this Court to amend this Complaint to state
their true names and capacities when it ascertains the same. Plaintiff alleges, on information and
belief, that each such fictitiously named Defendant is in some manner responsible for the acts
alleged herein and that such Defendants proximately caused the injuries alleged herein.
JURISDICTION AND VENUE
6.

Subject matter jurisdiction is proper in this Court because this litigation arises

under federal law, namely 15 U.S.C. 1114, 1116, 1117, and 1125(a) and 28 U.S.C. 1331, and
because there is supplemental jurisdiction over Plaintiffs state-law claims under 28 U.S.C.
1367(a).
7.

This Court has personal jurisdiction over Defendants in this action because

Defendants acts giving rise to Plaintiffs claims occurred within Nebraska and within this
judicial district.
8.

Venue is proper in this judicial district under 28 U.S.C. 1391(b) because

Defendants unlawful acts occurred, and continue to occur, in this judicial district.
FACTS
9.

BMF is the owner of the Blue Martini trade name and trademark, which has

been used since at least the year 2000 in connection with the advertising and promotion of
BMFs Blue Martini Lounge locations and associated restaurant and lounge services.
10.

BMF owns multiple federally registered trademarks in Blue Martini, including

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United States Trademark Registration Nos. 2,819,726; 3,470,058 pictured below at paragraph 14,
Figure 1, and attached hereto as Exhibits A B respectively; 4,086,825 and 4,446,285 (the
BMF Marks), true and correct copies of which are attached hereto as Exhibits C D
respectively. In addition to its federal trademark rights, BMF owns common law trademark
rights in the Blue Martini trademark.
11.

BMF and its predecessors have expended substantial time, money, and other

resources in developing, advertising, and otherwise promoting the BMF Marks in association
with its various Blue Martini Lounge locations across the United States and abroad. As a result,
the BMF Blue Martini lounge is widely recognized by consumers and the public as a premier
restaurant and lounge. Due to the success of the Blue Martini brand and BMF Marks, BMF is
now in a period of rapid expansion which will include openings of multiple Blue Martini
locations worldwide in the near future.
12.

BMF is informed and believes, and based thereon alleges, that Defendant Diaz is

part or full owner of Defendant Sadle.

13.

BMF is informed and believes, and based thereon alleges, that in an effort to

unfairly and unlawfully capitalize on the success of the BMF Marks, Defendants have made, and
continue to make, use of marks confusingly similar to the BMF Marks to promote their
restaurant and lounge services through the social media website Facebook and in connection
with Defendants restaurant and lounge in Omaha, Nebraska.
14.

Defendants have posted BMFs trademarks to a Facebook page designed by

Defendants to advertise and promote their restaurant and lounge in Omaha, Nebraska, which
activity is not authorized by BMF. By way of example, Figure 1 below depicts BMFs federally
registered trademark Nos. 2,819,726 and 3,470,058. Figure 2 depicts an advertisement posted by

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Defendants to the social media website, Facebook, which advertisement makes unauthorized use
of BMFs trademarks.

Figure 2

Figure 1
15.

Beginning at least as early as November 2014, Defendants were notified by BMF

to immediately cease and desist the use of marks confusingly similar to the BMF Marks at any
website location and at Defendants Blue Martini restaurant and lounge in Omaha, Nebraska.
Defendants have refused to cease their use of confusingly similar marks and their infringing
conduct continues unabated.
16.

Defendants activities are likely to create a false impression and deceive

consumers and the public into believing that an association exists between BMFs Blue Martini
Lounge and Defendants Blue Martini Lounge.
17.

BMF is suffering, and will continue to suffer, irreparable injury and damage as a

result of Defendants activities.

CLAIMS FOR RELIEF
COUNT ONE
(Trademark Infringement, 15 U.S.C. 1114 - Against All Defendants)
18.

Plaintiff hereby repeats and re-alleges the allegations contained in paragraphs 1-

17 of this Complaint and incorporates them by reference as if fully set forth herein.
19.

Defendants have infringed the BMF Marks through the use of confusingly

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similar marks to promote their restaurant and lounge services on Facebook and through various
other websites and at the Blue Martini Lounge in Omaha, Nebraska.
20.

Defendants use of marks confusingly similar to the BMF Marks in connection

with their goods and services is likely to confuse, mislead and deceive the public as to the origin
of the mark and Defendants associated goods and services.
21.

Defendants acts of infringement are made with Defendants knowledge of their

capacity to deceive and were thus committed willfully and intentionally. By reason of the above
acts of infringement, BMF has been, and will continue to be, damaged in an amount to be proven
at trial.
22.

If Defendants are permitted to continue their willful and deliberate acts of

infringement, BMF will be irreparably harmed. Monetary damages alone cannot compensate
BMF for the harm that Defendants will cause to BMF. BMF is entitled to injunctive relief
prohibiting Defendants from using marks confusingly similar to the BMF Marks in connection
with their goods and services.
COUNT TWO
(Federal Unfair Competition [Lanham Act 43(a), 15 U.S.C. 1125(a)]
Against All Defendants)
23.

Plaintiff hereby repeats and re-alleges the allegations contained in paragraphs 1-

22 of this Complaint and incorporates them by reference as if fully set forth herein.
24.

Defendants have infringed BMFs Blue Martini word mark through the use of

confusingly similar marks to promote their restaurant and lounge services through Facebook and
various other websites and at the Blue Martini Lounge in Omaha, Nebraska.
25.

Defendants use of marks confusingly similar to the Blue Martini word mark in

connection with their goods and services is likely to confuse, mislead and deceive the public as

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to the origin of the mark and Defendants associated goods and services.
26.

Defendants acts of infringement were made with Defendants knowledge of their

capacity to deceive and were thus committed intentionally and willfully. By reason of the above
acts of infringement, BMF has been, and will continue to be, damaged in an amount to be
determined at trial.
27.

If Defendants are permitted to continue their willful and deliberate acts of

infringement, BMF will be irreparably harmed. Monetary damages alone cannot compensate
BMF for the harm that Defendants will cause to BMF. BMF is entitled to injunctive relief
prohibiting Defendants from using marks confusingly similar to the Blue Martini word mark in
connection with their goods and services.
COUNT THREE
(Nebraska Deceptive Trade Practices Act [Neb. Rev. Stat. 87-301 - 87-306]
Against All Defendants)
28.

Plaintiff hereby repeats and re-alleges the allegations contained in paragraphs 1-

27 of this Complaint and incorporates them by reference as if fully set forth herein.
29.

Defendants activities as stated herein constitute unlawful acts and practices in the

conduct of Defendants trade and business in violation of Neb. Rev. Stat. 87-301 87-306 in
that they have caused likelihood of confusion as to the source, sponsorship, approval or
certification of their services and as to the affiliation, connection, association with, or
certification by Plaintiff of Defendants services.
30.

Defendants has willfully and knowingly continued its deceptive and unlawful

practices.
31.

Defendants wrongful activities have caused, and unless enjoined by this Court

will continue to cause, irreparable injury and other damage to Plaintiffs business, reputation, and

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goodwill in the industry. Plaintiff has no adequate remedy at law.

DEMAND FOR JURY TRIAL
32.

Pursuant to Fed. R. Civ. Pro. Rule 38, Plaintiff hereby demands a trial by jury in

Omaha, Nebraska, on all issues set forth herein that are properly triable to a jury.
PRAYER FOR RELIEF
WHEREFORE, BMF prays for entry of judgment in its favor and against Defendants for
their willful infringement as follows:
1.

For a judgment that Defendants have infringed United States Trademark

Registration Nos. 2,819,726; 3,470,058; 4,086,825 and 4,446,285.

2.

For a judgment that Defendants have violated the Nebraska Deceptive Trade

Practices Act.
3.

For an entry of permanent injunctive relief restraining and enjoining Defendants,

and all of their agents, successors and assigns, and all persons in active concert or participation
with any of them, from using the BMF Marks or the Blue Martini word mark, or any other mark
alone or in connection with other word or symbols, which is confusingly similar to the BMF
Marks or the Blue Martini word mark, or which is likely to cause confusion or mistake or to
deceive.
4.

For an entry of permanent injunctive relief restraining and enjoining Defendants,

and all of their agents, successors and assigns, and all persons in active concert or participation
with any of them, from seeking registration of the BMF Marks or the Blue Martini word mark, or
any other mark alone or in connection with other word or symbols, which is confusingly similar
to the BMF Marks or the Blue Martini word mark, or which is likely to cause confusion or
mistake or to deceive.

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5.

For an accounting and award to BMF of all profits received by Defendants of any

kind made as a result of Defendants infringement, pursuant to 15 U.S.C. 1117.

6.

For an award of all damages sustained by BMF by reason of Defendants

wrongful acts complained of herein.

7.

For an award of costs of this action and reasonable attorneys fees to BMF

pursuant to 15 U.S.C. 1117 and/or Neb. Rev. Stat. 87-303(b).

8.

For an award of exemplary damages for willful infringement.

9.

For an award of treble damages pursuant to 15 U.S.C. 1117(b).

10.

For an award to BMF of such other and further relief as the Court shall deem just.

DATED: January 21, 2015

BLUE MARTINI FOUNDERS, LLC, Plaintiff

By: s/ Douglas W. Peters
Douglas W. Peters (#23782)
KUTAK ROCK LLP
1650 Farnam Street
The Omaha Building
Omaha, Nebraska 68102-2186
(402) 346-6000 (Telephone)
(402) 346-1148 (Facsimile)
douglas.peters@kutakrock.com

Attorneys for Plaintiff