Cluck U Trademark Complaint PDF

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 1 of 33
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
CLUCK-U, CORP.
14504 Greenview Drive, Suite 200
Laurel, Maryland 20708
*
*
*
*
Plaintiff
*
v.
*
*
CLUCK-U CHICKEN, INC.
*
1163 Toledo Blade Blvd
*
North Port, FL 34288
*
*
and
*
Case No.: 1:15-cv-03439
*
ANTHONY L. TARTAGLIA, JR.
*
1163 Toledo Blade Blvd
*
*
*
and
*
*
BOARDWALK TONYS, INC.
*
1163 Toledo Blade Boulevard
*
*
*
Defendants
*
*
******************************************************************************
VERIFIED COMPLAINT
(Money Damages and Injunctive Relief)
Plaintiff, Cluck-U, Corp. (hereinafter Cluck-U or Franchisor), by and through its
undersigned counsel, hereby sues Defendants, Cluck-U Chicken, Inc., Anthony L. Tartaglia, Jr., and
Boardwalk Tonys, Inc. (hereinafter Defendants, Franchisee, or Franchisees,) and respectfully
states as follows:
INTRODUCTION
1.
This is an action at law and in equity for trademark infringement, false designation of
origin, and unfair competition arising from Defendants improper use of Cluck-Us trademarks (the
Infringing Marks), tradenames and goodwill. Defendants use of the Infringing Marks is likely to
cause confusion, and in fact, has caused confusion, among the relevant consuming public, and will
continue to cause the Plaintiff significant harm if permitted to continue. This action for damages and
injunctive relief is necessary to compensate the Plaintiff for the harm already caused to it and to prevent
any further harm resulting from Defendants improper use of the Infringing Marks.
2.
As more fully described below, Defendants, Cluck-U Chicken, Inc., and Anthony L.
Tartaglia, Jr., were parties to a Franchise Agreement with Cluck-U dated May 21, 2013.
Upon
information and belief, Cluck-U Chicken, Inc. has changed its corporate name to Boardwalk Tonys,
Inc. The Franchise Agreement sets out the terms pursuant to which the Defendants were authorized to
operate a Cluck-U franchise servicing North Port, Florida. The Franchise Agreement was properly
terminated by Cluck-U due to the Defendants defaults under the Franchise Agreement. Before and
since that termination, the Defendants have breached their obligations under the Franchise Agreement,
including, inter alia, failure to pay royalties and submit royalty reports required by the Agreement and
failure to cease use of Cluck-U trademarks in connection with their continued operation of the franchise
location in North Port, Florida.
3.
Defendants are operating a quick-service restaurant using the proprietary marks and
designs associated with the Cluck-U franchise system, a franchise concept owned by Plaintiff, without
Plaintiffs authorization. Defendants are also simultaneously operating a competing restaurant at the
franchised location named Boardwalk Tonys of North Port in violation of the Franchise Agreement.
A photograph depicting both the Cluck-U and Boardwalk Tonys names is attached hereto as Exhibit A.
Plaintiff has demanded that Defendants cease their infringing use of Plaintiffs proprietary materials. To
date, however, Defendants have refused to comply with Plaintiffs demands and are continuing to use
Plaintiffs intellectual property without Plaintiffs consent. Defendants actions have caused and are
continuing to cause Plaintiff to suffer substantial harm to its brand and reputation. For the reasons set
forth more fully below, Plaintiff seeks monetary, injunctive, and other relief against Defendants.
PARTIES AND JURISDICTION
4.
Plaintiff, Cluck-U, Corp., is a corporation incorporated under the laws of the State of
Maryland with its principal place of business located at 14504 Greenview Drive, Suite 200, Laurel,
Maryland 20708. Plaintiff is engaged in the business of franchising independent businesses to operate
Cluck-U restaurants throughout Maryland, Pennsylvania, New Jersey, Florida, and internationally.
Cluck-U franchisees are licensed to use the trademarks, service marks, and trade names of Cluck-U and
to operate under Cluck-Us system, which involves the preparation, cooking, and sale of fried chicken
and related products utilizing a specially designed building with special equipment, equipment layouts,
interior and exterior accessories, special recipes, identification schemes, products, management
programs, standards, specifications, proprietary marks, and identification. Plaintiff is also the owner of
the trademark, service mark, and trade name Cluck-U and related marks.
5.
Upon information and belief, Defendant, Cluck-U Chicken, Inc. (CUC), is a
corporation organized and existing under the laws of the State of Florida with its principal place of
business located in 1163 Toledo Blade Blvd, North Port, FL 34288. Upon information and belief,
Cluck-U Chicken, Inc. has changed its corporate name to Boardwalk Tonys, Inc.
6.
Upon information and belief, Defendant Anthony L. Tartaglia, Jr. (Tartaglia) is a
citizen of the State of Florida residing in North Port, Florida. Further, upon information and belief,
Defendant Tartaglia is the current owner/president/principal shareholder of Defendants CUC and
Boardwalk Tonys, Inc., and directed, controlled, participated in, engaged in, performed, authorized,
approved, ratified, actively and knowingly caused, or was the moving, active or conscious force behind
the acts of Defendants CUC and Boardwalk Tonys, Inc. forming the basis of this Complaint.
7.
Upon information and belief, Defendant, Boardwalk Tonys, Inc. is a corporation
organized and existing under the laws of the State of Florida with its principal place of business located
in 1163 Toledo Blade Boulevard, North Port, Florida 34288. Upon information and belief, Boardwalk
Tonys, Inc. is the successor-in-interest to Defendant Cluck-U Chicken, Inc.
8.
Jurisdiction is proper in this Honorable Court pursuant to 28 U.S.C. 1331 and 1338
because Cluck-U alleges violations of the Lanham Act, 15 U.S.C. 1051, et seq. This Honorable Court
may exercise supplemental jurisdiction over the state law claims under 28 U.S.C. 1338 and 1367
because these claims are joined with substantial and related claims under the Lanham Act.
9.
Personal jurisdiction and venue are proper in this Honorable Court under 28 U.S.C.
1391, in that a substantial part of the events giving rise to this Complaint occurred in this District and
because Section XVII of the Franchise Agreement entered into between the parties provides that
personal jurisdiction and venue are proper in a court of competent jurisdiction located within Prince
Georges County, Maryland.
FACTS COMMON TO ALL COUNTS

The Cluck-U Franchise System
10.
Cluck-U is the owner of the Cluck-U Chicken brand and franchises use of the brand at
approximately twenty (20) Cluck-U restaurants. Cluck-U brand restaurants have operated since 1985,
and enjoy significant goodwill and name recognition. Cluck-U restaurants provide a variety of services
featuring eat-in, take-out, and delivery of buffalo wings, fried chicken, salads, and sandwiches such as
burgers, throughout the mid-Atlantic region of the United States, including Maryland, Pennsylvania, and
New Jersey.
11.
Cluck-U, its predecessor-in-interest, and their respective franchisees have used the Cluck-
U service mark for over 20 years in connection with a wide range of restaurant-related-services.
12.
Prior to entering into a franchise agreement with Defendants, Plaintiff was and remains
still the record owner of, and periodically licenses the Cluck-U, Corp. federally registered marks which
include: (1) Reg. No. 3241336 (Cluck-U); (2) Reg. No. 3235545 (The Cluck-U Logo); (3) Reg. No.
2390442 (Its an Addiction); (4) Reg. No. 3316198 (Miniwich); (5) Reg. No. 3316224 (Sugar
Bees); (6) Reg. No. 3316804 (The Mascot Logo); (7) Reg. No. 3316132 (Cluckwich); (8) Reg. No.
3316805 (Clucksters Logo); (9) Reg. No. 3316202 (Clucker Bees); (10) Reg. No. 3316204
(Clucker Spuds); (11) Reg. No. 3460787 (Fresh Food, Grilled or Fried U Decide); (12) Reg. No.
3460786 (911 Winger Challenge); (13) Reg. No. 3461042 (Cluck-U Chicken); (14) Reg. No.
4053355 (Cluckersters); (15) Reg. No. 3316201 (Cinna Bees); (16) Reg. No. 3432595
(Clucksters); (16) Reg. No. 3316805 (Cluck-U Logo), (collectively, the Cluck-U Trademarks).
Copy Right Reg. No. TX6-813-550 (Cluck-U Chicken 911 Wingers Challenge) (collectively the
Cluck-U Trademarks) (true copies of the registrations are attached hereto as Exhibit B. Cluck-U
provides notice of its registrations by marking its website and menus with the symbol.
13.
Cluck-U has developed distinctive source indicators for use in the Cluck-U restaurants,
including, but not limited to, interior and exterior signage, menus, graphics and paint colors as well as
the look of the restaurants (the Cluck-U Trade Dress).
14.
A key component of the Cluck-U unique restaurant experience also includes the recipes,
know how and other novel methods and ideas for operating the Cluck-U restaurants including, but not
limited to, food preparation, quality and portion control which are included in the Operators Manual
provided to each franchisee (the Cluck-U Trade Secrets). Franchisees contractually agree to maintain
the secrecy of the Cluck-U Trade Secrets.
15.
The Cluck-U Trade Secrets are methods and other confidential information which are not
publicly known and are used in Cluck-Us business and which gives it an advantage over competitors
who do not possess the Cluck-U Trade Secrets.
16.
Cluck-U has taken precautions to maintain the secrecy of the Cluck-U Trade Secrets,
including, but not limited to, password access on computer files, confidentiality agreements, and other
appropriate means of ensuring secrecy.
17.
From 1985 through present, Cluck-U, its predecessor, and their respective franchisees
have engaged in the marketing and use of the Cluck-U Trademarks in connection with their restaurant
services. Cluck-U and its franchisees have invested millions of dollars in advertising, marketing, and
promoting those marks and the services provided under them.
18.
As a result of the continuous and exclusive extensive use of the Cluck-U marks by Cluck-
U and its franchisees, the marks enjoy wide public acceptance and association with Cluck-U and have
come to be recognized widely and favorably by the public as indicators of the source of Cluck-Us high
quality line of cuisine in this District and around the country. The extension promotion by Cluck-U and
its franchisees of theses marks has resulted in millions of dollars in revenues received for services
provided in connection with Cluck-U marks. The success of the Cluck-U franchise system has led to a
number of favorable media references in articles and in the popular press.
19.
As a result of the extensive use and promotion of the Cluck-U marks throughout the
country by Cluck-U, its predecessor in interest, and their respective franchisees, Cluck-U has built up
and now owns valuable goodwill that is symbolized by Cluck-U Trademarks. The Cluck-U Trademarks
are distinctive and have achieved significant secondary meaning and fame. Through Cluck-Us stellar
reputation and investment of time, money, creativity, and efforts, Cluck-U Trademarks have acquired
significant value and goodwill in this District and across the country.
The Franchise Agreement
20.
Plaintiff entered into a Franchise Agreement with Defendants on or about May 21, 2013
to allow Defendants CUC and Tartaglia to operate a Cluck-U Chicken restaurant in North Port, Florida
at 1163 Toledo Blade Blvd, North Port, FL 34288. Pursuant to the Agreement, the Defendants were
authorized and required to use the aforementioned marks, together with Cluck-Us business format,
educational and training programs, advertising programs, standard policies and procedures, and
techniques for operating a Cluck-U franchised business. The Agreement also required Defendants to
remit to Cluck-U, on a periodic basis, royalties and other fees, to provide Cluck-U with certain financial
reports, and to provide on-site monitoring access to Cluck-U.
21.
Defendants
have
explicitly
acknowledged
Cluck-Us
exclusive
right
to
aforementioned marks and confirmed that the Agreement granted them a conditional license only.
the
22.
Plaintiff permitted Defendants to open a Cluck-U restaurant and use of Cluck-U
Trademarks and the Cluck-U Trade Secrets under confidence, at 1163 Toledo Blade Boulevard, North
Port, Florida 34288 (the Franchised Location), pursuant to the limitations of a franchise agreement.
(Franchise Agreement).
23.
The Franchise Agreement signed by Defendants included numerous obligations of the
Franchisees including maintaining the secrecy of the Cluck-U Trade Secrets found in the Confidential
Operating Manual, acknowledgment of Cluck-Us ownership of the Cluck-U Trademarks, Cluck-U
Trade Dress, and Cluck-U Trade Secrets.
24.
The Franchise Agreement entered into between the parties placed various obligations on
the Defendants, including, but not limited to:

a.
A requirement that Defendants serve, sell or offer for sale all food and beverage
products and merchandise and only such products and merchandise: (i) as listed as standard
menu items (including local, regional or national specials) and/or merchandise designated from
time to time in the Operating Manual; and (ii) as have met Franchisors uniform standards of
quality and portions and appear on Franchisors approved food and beverage Brands list
designated from time to time in the Operating Manual; and (iii) as have been prepared in
accordance with recipes and food handling an preparation methods and procedures designated
from time to time in the Operating Manual;
b.
A requirement that Defendants use only goods, services, and supplies which have
the distinctive packaging bearing the Marks of the Franchisor when available. A requirement
that the Franchisees purchase from or through Franchisor (if available), any and all goods,
services and supplies, including all foodstuffs, paper goods, merchandise and other supplies and
equipment, whether or not bearing Franchisors name, from or through Franchisor or

Franchisors approved sources;
c.
A requirement that Defendants not to deviate in any respect from Franchisors
written standards and specifications for serving or selling such products without Franchisors
prior written consent. Moreover, the Defendants agreed to never offer unapproved products;
d.
A requirement that Defendants maintain a service contract with a computer
provider in order to grant Plaintiff independent access to their computer system at all times via
the internet. Moreover, the Defendants agreed to purchase and maintain at their own expense a
computer monitored surveillance system approved by Plaintiff that could be viewed over the
internet and accessible to the Franchisor at all times;
e.
A requirement that the Defendants would execute a lease for the franchised
location that gave the Franchisor a right to assume the lease upon the termination of the franchise
relationship;
f.
A requirement that the Defendants would submit to the Plaintiff monthly profit
and loss statements, by the 5th day of the following month, by email or fax;
g.
A requirement that, in addition to monthly profit and loss statements, that the
Defendants would at least annually and upon demand by the Plaintiff file with the Plaintiff its
year end corporate tax report, proof of payment of sales tax, proof of payment of withholding
taxes or other corporate tax filings, including scheduling K1 showing the ownership interest of
each of the beneficial owners, and other similar or equivalent state, local and federal filings;
h.
A requirement that the Defendants would submit by wire transfer or electronic
transfer (ACH), on a monthly basis, a monthly royalty fee equal to five percent (5%) of each
calendars gross sales as payment for the Defendants continued right to use the Cluck-U
Chicken system;
i.
A requirement that Defendants, upon signing the Franchise Agreement or
immediately thereafter, execute a written statement attested to by its owners verifying the names
and percentage ownership of each owner.
25.
The Defendants agreed that breaches of the following obligations, among others, would
give the Plaintiff right to terminate the Franchise Agreement upon written notice to the Defendants:
a.
If Franchisor discovers that Franchisee has made any material misrepresentation
or omitted material fact in the information furnished by Franchisee in connection with the grant
of the Franchise;
b.
If Franchisee fails to submit monthly profit and loss statements to Franchisor by
the fifth (5th) day of the following month and the failure remains uncured for 15 days;
c.
If the Franchisee is over forty-five (45) days past due in its account with an
approved supplier and such arrearage remains uncured for 30 days;

d.
If Franchisee fails, refuses or neglects to pay promptly when due any amounts
owed to Franchisor within the applicable cure or grace period.

26.
The Defendants agreed that upon the termination of the Franchise Agreement by the
Franchisor that they would refrain thereafter from using any recipes, the trade name or Mark or other
identifying characteristic that is any way associated with Franchisor and from operating or doing
business under any name or in any manner that might tend to give the public the impression that
Franchisee is or was a licensee or Franchisee or otherwise associated with Franchisor.
10
27.
The Defendants also entered into a covenant not to compete with Plaintiff that provides
as follows:
Section XVIII Covenant not to Compete
Franchisee covenants and agrees that during the term of this Agreement and for a
period of two (2) years thereafter, Franchisee will not, directly or indirectly, enter the
employment of, or perform any advising or consulting services for, or make an
investment in, or have an interest in, any company, partnership, organization,
proprietorship, or other entity that engages in the retail restaurant business within a radius
of five (5) miles from the location in any direction.
Franchisee covenants and agrees that during the term of this Agreement and for a
period of two (2) years thereafter, Franchisee will not, directly or indirectly, enter the
employment of, or perform any advising or consulting services for, or make an
investment in, or have an interest in, any company, partnership, organization,
proprietorship, or other entity that engages in the fast food primarily chicken retail
restaurant business (where a majority of revenues is derived from the sale of chicken
products and/or using the word Chicken in its trade name) within a radius of twentyfive (25) miles from the Location in any direction.
28.
Subject to the conditions of the Franchise Agreement and continuing faithful
performance thereunder, Plaintiff licensed to Defendants, for and during the term of the Franchise
Agreement and at the location identified above, the right to sell and prepare food products bearing
Plaintiffs trade name and service mark Cluck-U Chicken and other associated trade names, trademarks
and service marks of the Plaintiff, including, but not limited to, logos, slogans and trade dress
(collectively hereinafter Marks), and to use the related system of preparation and sale of food, recipes
and concepts (collectively hereinafter System).
29.
Subsequent to Defendants opening of the franchised location, the Defendants breached
the Franchise Agreement in the following ways, among others:

a.
Failing to maintain uniform products, operation and design, and a high standard of
quality for food preparation and service to develop and maintain the goodwill of the Franchisor
for all of its franchisees;
11
b.
Failing to purchase products from the approved sources;
c.
Failing to follow the approved preparation, cooking, and serving procedures;
d.
Failing to pay an approved Distributor US Food services invoices, as a balance of
Ten Thousands Four Hundred Seventy Dollars and One Cent ($10,470.01) remains outstanding;
e.
Failing to pay service providers, paper providers and food provider a considerable
amount of invoices;
f.
Failing to provide monthly profit and loss statements;
g.
Failing to provide access for monitoring camera system for the store;
h.
Failing to pay monthly royalties;
i.
Failing to provide access to point of sale system for the store for monitoring sales;
j.
Holding themselves out as an agent or legal representative of the Franchisor in an
effort to secure better services and pricing from vendors.

30.
As a result of Defendants breaches of the Agreement, Plaintiff provided Defendants with
notice of violation of the Franchise Agreement and, upon Defendants failure to cure the aforementioned
breaches, written notice terminating the Franchise Agreement in accordance with the Franchise
Agreement demanding that Defendants: (1) immediately cease and desist using any and all trademarks,
trade secrets and trade names belonging to Cluck-U, Corp.; (2) cease and desist advertising or serving
substantially similar products of Cluck-U Chicken; (3) inform all suppliers, service providers, or others
that it is no longer doing business as Cluck-U Chicken; and (4) disconnect phone numbers identified
with the name Cluck-U Chicken or University Chicken and to stop any yellow pages listings or
other listings and advertising under the name of Cluck-U Chicken or University Chicken.
12
31.
Despite the notice of violation, opportunity to cure, and termination, Defendants,
however, have failed to comply with Plaintiffs demand to discontinue use of Plaintiffs aforementioned
registered marks, and as a result, have continued to willfully use, in bad faith, Plaintiffs trademarks,
trade secrets and trade names. At all times relevant hereto, including during Defendants use of
Plaintiffs registered marks, Defendants have had actual knowledge that Plaintiff is the record owner of
the aforementioned registered marks. Defendants have further violated the Franchise Agreement in
various ways, including but not limited to, operating a restaurant at the Franchised Location not in
compliance with the Franchise Agreement, continuing to use the Cluck-U Trademarks, Cluck-U Trade
Dress and the Cluck-U Trade Secrets and failure to comply with termination duties and the
confidentiality and non-compete clause.
32.
In addition to continuing to operating a Cluck-U Chicken Restaurant in violation of the
Franchise Agreement, the Defendants have commenced operation of Boardwalk Tonys North Port
where it sells chicken wings and even offers a Cluck-U Chicken Cluckster on the Boardwalk Tonys
North Port Facebook page.
33.
The Cluck-U Trade Secrets are being used by Defendants in connection with their
restaurant activities at the Franchised Location, after termination of the Franchise Agreement, to the
detriment of Cluck-U and in direct violation of the Franchise Agreement.
34.
The Cluck-U Trade Secrets were used or disclosed by Defendants in breach of the
confidences owed by them to Plaintiff in connection with the operation of a chicken restaurant at the
Franchised Location.
35.
Defendants continue to use the Cluck-U Trade Secrets without the express or implied
consent from Cluck-U.
13
36.
Defendants, when using the Cluck-U Trade Secrets knew or had reason to know that the
Cluck-U Trade Secrets were acquired under circumstances giving rise to a duty to maintain its secrecy
or limit its use.
37.
Defendants have represented and continue to represent to the public that their goods or
services have the sponsorship, approval, characteristics, ingredients, uses, benefits, and/or quantities of
authorized Cluck-U franchisees.
38.
Defendants have actively committed, participated in, personally directed the infringing
acts complained of herein.

COUNT I
(Breach of Contract)
39.
Plaintiff adopts by reference the allegations contained in paragraphs 1 through 38 of this
Complaint with the same effect as if herein fully set forth.

40.
Plaintiff entered into a franchise agreement with Defendants CUC and Tartaglia dated
May 21, 2013, to allow the Defendants to operate a Cluck-U Chicken restaurant in North Port, Florida
located at 1163 Toledo Blade Boulevard, North Port, Florida 34288.
41.
Plaintiffs grant of a franchise for the system and marks was made in consideration of the
initial franchise fees, monthly royalty payments, promotion of the Franchisors name and marks and the
ensuing goodwill that is generated for the benefit of the Plaintiff and its system, and other periodic or
ongoing fees, rebates, discounts and incentives as stated in the franchise agreement.
42.
Plaintiff has discovered that Defendants have failed to comply with the terms set forth in
the Franchise Agreement entered into between the parties. Defendants have materially breached the
Agreement by:
14
a.
Failing to maintain uniform products, operation and design, and a high standard of
quality for food preparation and service to develop and maintain the goodwill of the Franchisor
for all of its franchisees;
b.
Failing to purchase products from the approved sources;
c.
Failing to follow the approved preparation, cooking, and serving procedures;
d.
Failing to pay approved Distributor US Food services invoices, as a balance of
Ten Thousands Four Hundred Seventy Dollars and One Cent ($10,470.01) remains outstanding;
e.
Failing to pay service providers, paper providers and food provider a considerable
amount of invoices;
f.
Failing to provide monthly profit and loss statements;
g.
Failing to provide access for monitoring camera system for the store;
h.
Failing to pay monthly royalties fees which they are required to pay under the
Franchise Agreement. There is presently due and owing from Defendants to Cluck-U, Corp. the
sum of Nine Thousand Six Hundred-Forty Dollars and Eight-Two Cents ($9,640.82) for past due
royalties through July 31, 2015;
i.
Failing to provide access to point of sale system for the store for monitoring sales;
j.
Holding themselves out as an agent or legal representative of the Franchisor in an
effort to secure better services and pricing from vendors.

43.
Due to Defendants breach of the Franchise Agreement, after first providing Defendants
with the opportunity to cure their breaches, Plaintiff sent Defendants a written notice stating that the
Franchise Agreement was terminated and requesting that Defendants immediately cease and desist using
any and all trademarks and tradenames belong to Plaintiff, cease and desist advertising or serving
15
substantially similar products of Cluck-U Chicken, inform all suppliers service providers, or other that it
is no longer doing business as Cluck-U Chicken, disconnect phone numbers identified with the name
Cluck-U Chicken or University Chicken and to stop any yellow pages listing or other listings and
advertising under the name of Cluck-U Chicken or University Chicken. Notwithstanding Plaintiffs
cease and desist notice, the Defendants have continued to operate the Cluck-U franchised location in
North Port, Florida.
44.
As a direct result of Defendants breach of the Franchise Agreement, Plaintiff has
suffered substantial pecuniary harm and damage, including, but not limited to, lost royalties, profits,
income and attorneys fees and costs, exceeding One Hundred Thousand Dollars ($100,000.00).
WHEREFORE, Plaintiff, Cluck-U, Corp., requests that this Honorable Court:
A.
Order, adjudge, and decree that Defendants have breached the Franchise
Agreement;
B.
Enter judgment in favor of Plaintiff, Cluck-U, Corp., and against Defendants,
jointly and severally, in the amount of Three Hundred and Fifty Thousand and 00/100 Dollars
($350,000.00) or such amount is proved at trial; and
C.
Grant Plaintiff such additional and further relief as its cause may require and is
appropriate.
COUNT II
(Trademark Infringement 15 U.S.C. 1114(1))
45.

46.
Plaintiff and its predecessors have continuously, and in good faith, used throughout the
United States the Registered Trademarks to indicate the source of services and goods.
16
47.
Plaintiff is the title owner of the Registered Trademarks at issue. Plaintiffs Registered
Trademarks are conclusive evidence of the validity of the Registered Trademarks, of the Registered
Trademarks registration, of Cluck-U Corp.s ownership of the Registered Trademarks and of Cluck-U,
Corp.s exclusive right to use, without condition or limitation, the Registered Trademarks in commerce
on or in connection with the services and products specified in the certificates of registration.
48.
Upon information and belief, Defendants have offered and continue to offer their services
and goods under the Registered Trademarks in the United States subsequent to the aforesaid notice
terminating the Franchise Agreement with actual knowledge of the prior use of the Registered
Trademarks by Plaintiff or its predecessor.
49.
The services and goods offered and sold by Defendants under the Registered Trademarks
move within the same channels of trade and are purchased by the same class of customer as the services
and goods offered by Cluck-U, Corp. under Cluck-U, Corp.s Registered Trademarks.
50.
Defendants deliberate adoption and use of the Registered Trademarks in connection with
services and goods is likely to cause confusion and, in fact, has caused confusion among consumers and
vendors about the source of the goods and services provided by both the Plaintiff and the Defendants, all
to Plaintiffs irreparable harm and detriment. Defendant has infringed, and continues to infringe, the
Cluck-U mark.
51.
Defendants intentional use in commerce of the Registered Trademarks without
Plaintiffs consent constitutes an impermissible reproduction, counterfeit, copy, or colorable imitation of

Plaintiffs Registered Trademarks and such use is likely to cause confusion, or to cause mistake, or to
deceive, all in violation of Plaintiffs incontestable and conclusive right to use the Registered
Trademarks exclusively throughout the United States.
17
52.
Defendants intentional use in commerce of the Registered Trademarks and name without
Plaintiffs consent and in connection with labels, signs, prints, packages, wrappers, receptacles, or
advertisements that are used or intended to be used in connection with the sale, offering for sale,
distribution, or advertising of Defendants goods and services, constitutes an impermissible
reproduction, counterfeit, copy, or colorable imitation of Plaintiffs Registered Trademarks as used in
connection with Plaintiffs services and goods, which intentional use is likely to cause confusion, or to
cause mistake, or to deceive, all in violation of Cluck-U, Corp.s incontestable and conclusive right to
use the Registered Trademarks exclusively throughout the United States.
53.
Plaintiff has suffered, and continues to suffer, damages and irreparable harm as a result of
Defendants infringement.
WHEREFORE, Plaintiff Cluck-U, Corp., respectfully requests that this Honorable Court:
A.
Order, adjudge, and decree that Defendants have intentionally and willfully
committed federal trademark infringement under 15 U.S.C. 1114(1);

B.
Order, pursuant to 15 U.S.C. 1117, that Defendants disgorge all profits obtained
by Defendants as a result of the Trademark Infringement;

C.
Award the Plaintiff the damages sustained as a result of the Trademark
Infringement;
D.
Award the Plaintiff, pursuant to 15 U.S.C. 1117 and the Franchise Agreement,
reasonable attorneys fees and the costs of this action;

E.
Award the Plaintiff, pursuant to 15 U.S.C. 1117, treble damages;
F.
Grant a temporary restraining order, preliminary and permanent injunction
prohibiting Defendants, and Defendants officers, agents, servants, employees, attorneys,
18
successors, assigns and all others in privity, or acting in concert therewith, from using Plaintiffs
Trademarks or any other name, word, term, symbol or device, or any combination thereof, in
connection with goods or services in a manner which is likely to be confused with Plaintiffs
Trademarks; and
G.
Award such other and further relief as the Court may deem just.
COUNT III
(Trade Dress Infringement 15 U.S.C. 1125(a)
54.

55.
Upon information and belief, Defendants adopted or modified its trade dress for use at
the Franchised Location with knowledge of Cluck-U Trade Dress.

56.
Defendants deceptively used, and continue to use in commerce, confusingly similar trade
dress to the Cluck-U Trade Dress, which is likely to cause confusion, to cause mistake and to deceive
the public as to the source of Defendants services or as to a possible affiliation with or sponsorship by
Cluck-U.
57.
Defendants conduct has caused Cluck-U to suffer, and unless enjoyed by the Court, will
cause Cluck-U to continue to suffer damages to its operation, reputation, and goodwill, and will suffer
the loss of sales and profits that Cluck-U would have made but for Defendants acts. Defendants have
been, and will continue to be, unjustly enriched by their unlawful acts.
58.
Cluck-U has no adequate remedy at law. Defendants conduct has caused and, if not
enjoined, will continue to cause irreparable harm to Cluck-U. As a result of Defendants wrongful
conduct, Cluck-U is entitled to injunctive relief.
WHEREFORE, Cluck-U request that this Honorable Court:
19
A.
Order, adjudge and decree that Defendants have intentionally and willfully
committed trade dress infringement in violation of 15 U.S.C. 1125(a)(1)(A);

B.
by Defendants as a result of the Trademark Dress Infringement;

C.
Award the Plaintiff the damages sustained as a result of the Trademark Dress
Infringement;
D.

E.
F.

Trade Dress; and
G.
COUNT IV
(Federal Unfair Competition 15 U.S.C. 1125(a))
59.

60.
Defendants have actual knowledge of the prior use of Plaintiffs Trademarks, and are
using said Trademarks in commerce and in connection with food service to present a false designation of
origin, a false or misleading description of fact, or a false or misleading representation of fact which is
likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
20
association of Defendants with Plaintiff or as to the origin, sponsorship, or approval of Defendants

restaurant services and goods by Plaintiff.
61.
The services and goods offered and sold by Defendants under Plaintiffs Trademarks
move within the same channels of trade and are apt to be purchased by the same class of customer as the
services and goods offered by Plaintiff under Plaintiffs Trademarks.
62.
Defendants use of Plaintiffs Trademarks, in connection with restaurant services and
goods, falsely describes and falsely represents to members of the trade, the business community, and the
public that the services and products offered by Defendants under Plaintiffs Trademarks in some way
originate with or are sponsored or endorsed by Plaintiff or meet Plaintiffs standards of quality, all to
Plaintiffs irreparable damage and detriment.
63.
Defendants and/or persons otherwise associated with or employed by Defendants had
actual knowledge of the prior use of Plaintiffs Trademarks by Cluck-U, Corp. and its predecessors in
connection with restaurant services and goods and Defendants willful and deliberate adoption of
Plaintiffs Trademarks, and its subsequent services and sales of goods under Plaintiffs Trademarks has
damaged Plaintiff and will continue to the irreparable detriment of Plaintiff unless enjoined by this
Court.
64.
Defendants continued, unauthorized, willful, and deliberate use of Plaintiffs
Trademarks in connection with restaurant services and goods constitutes a false designation of origin
and federal unfair competition, all in violation of Plaintiffs incontestable and conclusive right to use
Plaintiffs Trademarks as a trademark exclusively throughout the United States.
21
A.
Order, adjudge, and decree that Defendants, Cluck-U Chicken, Inc. and Anthony
L. Tartaglia, have intentionally and willfully engaged in Federal Unfair Competition under 15
U.S.C. 1125(a);
B.
Order that Defendants disgorge all profits obtained by Defendants as a result of
the Federal Unfair Competition under 15 U.S.C. 1125(a);

C.
Award the Plaintiff the damages sustained as a result of the Federal Unfair
Competition;
D.

E.
F.

successors, assigns and all others in privity, or acting in concert therewith, from engaging in
Federal Unfair Competition under 15 U.S.C. 1125(a); and
G.
COUNT V
(Trademark Dilution 15 U.S.C. 1125(c)(1))
65.

66.
Plaintiff is the registered owner of the aforementioned distinctive and famous
Trademarks. Plaintiffs Trademarks are widely recognized by the general consuming public as the
exclusive designation of Plaintiffs business. The services and goods offered and sold by Defendants
22
under Plaintiffs Trademarks move within the same channels of trade and are apt to be purchased by the
same class of customer as the services and goods offered by Plaintiff under Plaintiffs Trademarks.
67.
Defendants have actual knowledge of the prior use of Plaintiffs Trademarks, and are
using said Trademarks in commerce and in connection with food service thereby causing a dilution by
blurring.
The marks used by Defendants are identical with little to no inherent or acquired
distinctiveness, thereby causing a direct association between the marks.

68.
Defendants use of Plaintiffs Trademarks, in connection with restaurant services and
goods, falsely describes and falsely represents to members of the trade, the business community, and the
public that the services and products offered by Defendants under Plaintiffs Trademarks in some way
originate with or are sponsored or endorsed by Plaintiff or meet Plaintiffs standards of quality, all to
Plaintiffs irreparable damage and detriment. As such, Defendants use of Plaintiffs Trademark also
constitutes a dilution by tarnishment.
69.
Defendants continued, unauthorized, willful, and deliberate use of Plaintiffs
Trademarks in connection with restaurant services and goods constitutes trademark dilution, in violation
of Plaintiffs incontestable and conclusive right to use Plaintiffs Trademarks as a trademark exclusively
throughout the United States.
A.
committed federal trademark dilution under 15 U.S.C. 1125(c)(1);

B.
by Defendants as a result of the Trademark Dilution;

C.
Award the Plaintiff the damages sustained as a result of the Trademark Dilution;
23
D.

E.
F.
prohibiting Defendants and Defendants officers, agents, servants, employees, attorneys,

successors, assigns and all others in privity, or acting in concert therewith, from further
Trademark Dilution;
G.
COUNT VI
(Common Law Trademark Infringement)
70.
Complaint with the same effect as herein fully set forth.

71.
Defendants have used, and continue to use, in commerce and without Plaintiffs
authorization or consent, a reproduction, copy or colorable imitation of Plaintiffs Trademarks

intentionally and in bad faith.
72.
Defendants intentional and willful acts have caused and are likely to cause confusion as
to the source of Plaintiffs Trademarks. The marks used by Defendants are identical and confusingly
similar.
73.
Defendants acts constitute trademark infringement under common law.
74.
Defendants use of Plaintiffs Trademarks was, and is, with full knowledge of Plaintiffs
exclusive rights in the Cluck-U, Corp. Trademarks and therefore constitutes willful infringement.
24
75.
Defendants infringement of Plaintiffs Trademarks has caused, and continues to cause,
irreparable harm to Plaintiff. Unless this Court enjoins Defendants from continuing their unauthorized
use of Plaintiffs Trademarks and colorable imitations, Plaintiff will continue to suffer irreparable harm.
WHEREFORE, Plaintiff, Cluck-U, Corp., respectfully requests that this Honorable Court:
A.
committed common law trademark infringement;

B.
the trademark infringement;

C.
Award the Plaintiff the damages sustained as a result of the Trademark
Infringement;
D.
Award the Plaintiff reasonable attorneys fees and the costs of this action;
E.
Award the Plaintiff treble damages;
F.

Trademarks or any other name, word, term, symbol or device, or any combination thereof, in
connection with goods or services in a manner which is likely to be confused with Plaintiffs
Trademarks or Trade Secrets;
G.
COUNT VII
(Common Law Unfair Competition)
76.

25
77.
Plaintiff is the senior user of the Cluck-U mark and thus owns all right in that mark under
common law.
78.
Defendants are unfairly competing with Plaintiff by using the Infringing Mark in
connection with their business activities in an effort to benefit from Plaintiffs goodwill and stellar
reputation.
79.
Plaintiff has suffered, and continues to suffer, damages and irreparable harm as a result of
Defendants unfair competition.

80.
Unless enjoined by this Court, Defendants will continue the above referenced acts of
unfair competition, thereby causing Plaintiff to suffer additional damages and irreparable injury for
which it has no adequate remedy of law.
WHEREFORE, Plaintiff respectfully requests that this Court:
A.
engaged in Common Law Unfair Competition;

B.
the Common Law Unfair Competition;

C.
Award the Plaintiff the damages sustained as a result of the Common Law Unfair
Competition;
D.
Award the Plaintiff reasonable attorneys fees and the costs of this action;
E.
Award the Plaintiff treble damages;
F.
26
successors, assigns and all others in privity, or acting in concert therewith, from engaging in
Common Law Unfair Competition; and
G.
COUNT VIII
(Trafficking in Counterfeit Marks 1-414, B.R., Maryland Code)
81.

82.
Without Plaintiffs consent, Defendants have used, and continue to use a colorable
imitation of Plaintiffs Trademarks in connection with the sale, distribution, offering for sale, or
advertising of food products in violation of Section 1-414 of the Business Regulations Article, of the
Annotated Maryland Code. Defendants use of a colorable imitation of Plaintiffs Trademarks is likely
to cause confusion or mistake or to deceive as to the source of origin of Defendants food products.
83.
Defendants have engaged in the act of trafficking in counterfeit marks and have caused
Cluck-U, Corp. substantial business injury. Cluck-U, Corp. has no adequate remedy at law for these
injuries. Unless Defendants are restrained by this Court from continuing its trafficking of counterfeit
marks, these injuries will continue to accrue.
84.
Defendants conduct has caused Cluck-U, Corp. to suffer, and, unless enjoined by the
Court, will continue to cause it to suffer, damage to its operations, reputation and goodwill.
85.
Defendants have been, and, unless enjoined by the Court, will continue to be, unjustly
enriched by its unlawful acts such that monetary damages alone cannot fully compensate Cluck-U, Corp.
for the injuries caused by Defendants misconduct.
27
A.
Order, adjudge and decree that Defendants have engaged in the trafficking of
counterfeit marks in violation of 1-414, BR, Maryland Code;

B.
Under 1-414, BR, Maryland Code, award Cluck-U, Corp. its damages and/or
for Defendants to disgorge their profits, or both, against Defendants for trafficking in counterfeit
Cluck-U, Corp. Trademarks, and that such award be trebled;
C.
Under 1-414, BR, Maryland Code, order that any reproduction, counterfeit,
copy or imitation of the Cluck-U, Corp. Trademarks in Defendants possession or control be

disposed of or destroyed;
D.
Award Cluck-U, Corp., pursuant to 15 U.S.C. 1117, attorneys fees;
E.
COUNT IX
(Violation of Maryland Uniform Trade Secrets Act 11-1201)
86.

87.
Defendants conduct as alleged in this Complaint constitutes actual or threatened
misappropriation of trade secrets pursuant to Md. Code Ann. Com. Law II 11-1201 through 11-1209.
88.
Defendants entered into confidentiality agreements with Cluck-U pursuant to which they
agreed not to disclose or use Cluck-Us confidential information. The confidentiality agreements are
valid and enforceable contracts.
89.
The operational methods and goods offered and sold by Plaintiff are trade secrets not
generally known to, and not readily ascertainable by other persons. Plaintiffs trade secrets include, but
are not limited to, Cluck-Us recipes, know how and other novel methods and ideas for operating the
Cluck-U Restaurants, including, but not limited to, food preparation, quality, and portion control. Such
28
confidential information satisfies the statutory definition of trade secrets because the information
derives independent economic value from not being generally known to, and not being readily
ascertainable by proper means by the public or any other person who can obtain economic value from its
disclosure, and is the subject of efforts by Cluck-U that are reasonable under the circumstances to
maintain its secrecy and constitutes trade secrets under Md. Code Ann. Com. Law II 11-1201(e).
Further, Plaintiff takes reasonable efforts to protect these operational methods and goods offered through
the use of a non-disclosure and confidentiality agreement.
90.
income.
The trade secrets are highly valuable to Plaintiff and constitute a primary source of its
Defendants have improperly taken the trade secrets without Plaintiffs authorization and
without a right or privilege to do so and have used and disclosed said trade secrets in its own business.
91.
Through the acts alleged herein, Defendants knowingly and intentionally misappropriated
trade secrets belonging to Cluck-U. Defendants misappropriation included, but was not limited to,
proprietary information regarding the Plaintiffs recipes, know how and other novel methods and ideas
for operating the Cluck-U restaurants including, but not limited to, food preparation, quality and portion
control.
92.
Defendants unlawfully used Cluck-Us trade secrets and Confidential Information to: (a)
accelerate their own efforts to duplicate the Plaintiffs capabilities in the marketplace, and (b)
successfully market themselves to Cluck-Us customers to acquire what had been the Plaintiffs work.
Defendants, and each of them, knew and understood that the trade secrets acquired, used and disclosed
by Defendants, was proprietary to Cluck-U, and that the use and/or disclosure of it would result in
competitive harm to Cluck-U.
29
93.
It is probable, if not certain, that the Defendants will continue to improperly use the
plaintiffs trade secrets and Confidential Information to operate and profit from Defendants operation of
the restaurant at issue.
94.
The conduct of the Defendants in misappropriating the plaintiffs trade secrets and
confidential information was intentional, willful and malicious.

95.
As a result of said conversion and misappropriation of trade secrets, Plaintiff has suffered
damages in an amount in excess of Three Hundred Fifty Thousand Dollars ($350,000.00).

96.
Unless Defendants are restrained by this Court from continuing to misappropriate and use
the trade secrets of Cluck-U, Corp., Plaintiff will suffer immediate substantial and irreparable injury.
97.
The benefits to Cluck-U, Corp. in obtaining injunctive relief are equal to or outweigh the
potential harm which Defendants would incur if this Court grants the requested injunctive relief.
98.
The public interest is best served by granting the injunction.
WHEREFORE, Plaintiff, Cluck-U, Corp., respectfully requests that this Honorable Court:
A.
Order, adjudge and decree that Defendants acts constitute misappropriation of
trade secrets under the Maryland Uniform Trade Secrets Act, and that such acts were committed
willfully and maliciously;
B.
Enter a temporary restraining order, preliminary injunction, and permanent
injunction restraining Defendants from continuing to misappropriate the trade secrets of Plaintiff;
C.
Enter judgment in favor of Plaintiff and against Defendants, jointly and severally,
for compensatory damages in the amount of Three Hundred Fifty Thousand Dollars
($350,000.00), plus attorneys fees, interest, and costs; and
D.
Grant Plaintiff such other and further relief as its cause may require.
30
COUNT X
(Breach of Guaranty Agreement)
99.

100. On or about May 21, 2013, Plaintiff and Defendant Tartaglia entered into a Guaranty
Agreement. The Guaranty Agreement provides, in pertinent part, as follows:
1.
The Guarantors hereby unconditionally, irrevocably and directly guarantee to
Franchisor the prompt, punctual and full: (a) payment when due (whether by acceleration,
declaration, demand, extension or otherwise) of all principal and interest, interest or
principal, royalties, franchise fees, and of all other monies payable under the Agreement;
and (b) performance when due on all covenants, promises, agreements, and the accuracy
and completeness of all representations and warranties, contained in the Agreement
(collectively, the Guaranteed Obligations).
2.
Should the Franchisee for any reason fail to pay all or any part of the Guaranteed
Obligations as and when due and payable (whether by acceleration, declaration, demand,
extension or otherwise), the Guarantors promise to pay immediately the same to
Franchisor at 14504 Greenview Drive, Suite 200, Laurel, Maryland 20708, or such other
place as Franchisor may designate from time to time by notice to Guarantors, plus
interest thereon at the rate of 15% per annum from the date due until paid in full.
4.
The Guarantors hereby waive demand, presentment for payment, protest, notice
of dishonor and of protest, notice of acceptance of this Guaranty, Guarantors do not
waive notice of the making of any of the Guaranteed Obligations and notice of default
under any of the Documents. Said notice shall be in writing as provided in paragraph 11.
101. Plaintiff sent notice of default to Defendant Tartaglia.

102. Defendant Tartaglia has not issued payment in response to Plaintiffs demand for
payment and, as such, has breached the Guaranty Agreement.
31
A.
Order, adjudge and decrease that Defendant Tartaglia breached the guaranty
agreement;
B.
Enter judgment in favor of Plaintiff and against Defendant Tartaglia for
compensatory damages in the amount of Three Hundred Fifty Thousand Dollars ($350,000.00),
plus attorneys fees, interest, and costs; and
C.
Grant Plaintiff such other and further relief as the nature of its cause may require.
Respectfully Submitted:
HENDERSON LAW, LLC
/s/WPH
Wes P. Henderson
Paul C. Balassa, Of Counsel
Henderson Law, LLC
2140 Priest Bridge Court, Suite 6
Crofton, MD 21401
P: 410-721-1979
F: 410-721-2258
wph@hendersonlawllc.com
pcb@hendersonlawllc.com
Attorneys for Plaintiff
32

Cluck U Trademark Complaint PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Cluck U Trademark Complaint PDF

Uploaded by

Copyright:

Available Formats

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 2 of 33

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 3 of 33

Upon information and belief, Defendant, Cluck-U Chicken, Inc. (CUC), is a

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 4 of 33

Upon information and belief, Defendant Anthony L. Tartaglia, Jr. (Tartaglia) is a

Upon information and belief, Defendant, Boardwalk Tonys, Inc. is a corporation

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 5 of 33

FACTS COMMON TO ALL COUNTS

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 6 of 33

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 7 of 33

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 8 of 33

Plaintiff permitted Defendants to open a Cluck-U restaurant and use of Cluck-U

The Franchise Agreement signed by Defendants included numerous obligations of the

the Defendants, including, but not limited to:

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 9 of 33

equipment, whether or not bearing Franchisors name, from or through Franchisor or

A requirement that Defendants not to deviate in any respect from Franchisors

A requirement that Defendants maintain a service contract with a computer

A requirement that the Defendants would submit by wire transfer or electronic

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 10 of 33

A requirement that Defendants, upon signing the Franchise Agreement or

If Franchisor discovers that Franchisee has made any material misrepresentation

If Franchisee fails to submit monthly profit and loss statements to Franchisor by

approved supplier and such arrearage remains uncured for 30 days;

owed to Franchisor within the applicable cure or grace period.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 11 of 33

Subject to the conditions of the Franchise Agreement and continuing faithful

Subsequent to Defendants opening of the franchised location, the Defendants breached

the Franchise Agreement in the following ways, among others:

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 12 of 33

Failing to purchase products from the approved sources;

Failing to follow the approved preparation, cooking, and serving procedures;

Failing to pay an approved Distributor US Food services invoices, as a balance of

Failing to provide monthly profit and loss statements;

Failing to pay monthly royalties;

Holding themselves out as an agent or legal representative of the Franchisor in an

effort to secure better services and pricing from vendors.

As a result of Defendants breaches of the Agreement, Plaintiff provided Defendants with

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 13 of 33

Despite the notice of violation, opportunity to cure, and termination, Defendants,

In addition to continuing to operating a Cluck-U Chicken Restaurant in violation of the

consent from Cluck-U.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 14 of 33

acts complained of herein.

Plaintiff adopts by reference the allegations contained in paragraphs 1 through 38 of this

Complaint with the same effect as if herein fully set forth.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 15 of 33

Failing to purchase products from the approved sources;

Failing to follow the approved preparation, cooking, and serving procedures;

Failing to pay approved Distributor US Food services invoices, as a balance of

Failing to provide monthly profit and loss statements;

Holding themselves out as an agent or legal representative of the Franchisor in an

effort to secure better services and pricing from vendors.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 16 of 33

As a direct result of Defendants breach of the Franchise Agreement, Plaintiff has

Enter judgment in favor of Plaintiff, Cluck-U, Corp., and against Defendants,

Plaintiff adopts by reference the allegations contained in paragraphs 1 through 44 of this

Complaint with the same effect as if herein fully set forth.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 17 of 33

Defendants intentional use in commerce of the Registered Trademarks without