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3. KPMG LLP provides to its clients, inter alia, professional services in interstate

commerce in the fields of accounting, auditing, tax, management, and financial and business

consulting under its famous name and mark KPMG.

4. Upon information and belief, Defendants offer similar professional services in

interstate commerce, including accounting, auditing, tax, management and financial and business

consulting services. Defendants advertise and promote those services at their website

WWW.KBLLC.COM.

5. Upon information and belief, the Individual Defendants control and direct the

business and operations of KBMG, derive financial benefit from the use of the name and mark

KBMG and were instrumental in Defendants’ selection of the name and mark KBMG.

6. Plaintiffs bring this action seeking, inter alia, a judgment that Defendants have:

(i) infringed the federally registered KPMG Marks by, inter alia, using the name and mark

KBMG, which is likely to cause confusion, mistake and deception in violation of § 32 of the

Lanham Act, 15 U.S.C. § 1114; (ii) violated Plaintiffs’ rights under the federal unfair competition

law codified at § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) by, inter alia, using false

designations of origin, including KBMG, that are likely to cause confusion, mistake or deception

as to the affiliation, connection or association with Plaintiffs; (iii) diluted the distinctive quality

of Plaintiffs’ valuable rights in the KPMG Marks in violation of § 43(c) of the Lanham Act, 15

U.S.C. § 1125(c); (iv) diluted the distinctive quality of Plaintiffs’ valuable rights in the KPMG

Marks in violation of New York General Business Law 360-I; and (v) engaged in unfair

competition and trademark infringement in violation of the common law of New York.

7. Defendants’ acts have caused and continue to cause irreparable damage and injury

to Plaintiffs for which Plaintiffs have no adequate remedy at law. Plaintiffs seek injunctive

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relief, compensatory damages, Defendants’ profits, and other appropriate relief as set forth more

fully below.

PARTIES

8. KPMG International is a Swiss cooperative organized and existing under the laws

of Switzerland with a registered office address at Stadlin Advokatur, Baarerstrasse 12, 6300 Zug,

Switzerland. KPMG International carries on business activities for the overall benefit of the

KPMG network of member firms but does not provide professional services to clients, which

services are provided by member firms.

9. KPMG LLP is a limited liability partnership, duly organized under the laws of the

State of Delaware, with its headquarters located at 345 Park Avenue, New York, New York,

10154-0102. KPMG LLP is the United States member firm of KPMG International. KPMG

LLP is one of the “Big 4,” the name often used to collectively describe the four largest national

accounting and auditing firms in the United States. KPMG LLP has offices throughout the

United States, including five offices in the State of New York and two offices in the City of New

York. KPMG LLP provides to its clients throughout the United States the highest quality

professional services in the fields of accounting, auditing, tax, and management, financial and

business consulting (among others), including in the areas of mergers and acquisitions, financial

transactions and restructuring (collectively, “KPMG Services”).

10. Upon information and belief, KBMG is a limited liability company organized

under the laws of the State of New Jersey, with regular places of business at 6 East 45th Street,

10th Floor, New York, New York 10017 and at 106 Apple Street, Suite 101D, Tinton Falls, NJ

07724. KBMG competes with KPMG LLP in the United States by offering, in interstate

commerce, under the KBMG name and mark, professional services that are the same as or

substantially similar to the KPMG Services.

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11. Upon information and belief, Howard S. Krant is a founder and principal of

KBMG. Upon information and belief, Krant resides in New Jersey.

12. Upon information and belief, Scott H. Bialick is a founder and principal of

KBMG. Upon information and belief, Bialick resides in New Jersey.

13. Upon information and belief, Lawrence Scott Gitlitz is a founder and principal of

KBMG. Upon information and belief, Gitlitz resides in New Jersey.

14. Upon information and belief, Michael H. Hoffman is a founder and principal of

KBMG. Upon information and belief, Hoffman resides in New Jersey.

15. Upon information and belief, the Individual Defendants direct and control the

business and operations of KBMG, derive financial benefit from the use of name and mark

KBMG and were instrumental in Defendants’ selection of the name and mark KBMG.

SUBJECT MATTER JURISDICTION

16. This Court has subject matter jurisdiction pursuant to 15 U.S.C. § 1121(a),

28 U.S.C. § 1331, 28 U.S.C. § 1338(a) and 28 U.S.C. § 1338(b). This Court has supplemental

jurisdiction over the state law claims herein pursuant to 28 U.S.C. § 1367. This Court may grant

Plaintiffs’ requested relief pursuant to the Lanham Act, 15 U.S.C. § 1051 et seq., and pursuant to

the relevant statutory and common law of the State of New York.

PERSONAL JURISDICTION

17. Defendant KBMG is subject to jurisdiction in New York because it has an office

for conduct of business in the State of New York where it regularly does and transacts business

under the name and mark KBMG. In addition, Defendant KBMG has committed, and continues

to commit, (i) the complained-of tortious acts of trademark infringement, dilution and unfair

competition within the State of New York, and (ii) the complained-of tortious acts of trademark

infringement, dilution and unfair competition outside of New York State causing injury to

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Plaintiffs within New York State while regularly doing and soliciting business and engaging in a

persistent course of conduct within New York State, deriving substantial revenue for services

rendered within New York State, expecting the tortious conduct to have consequences in the

State of New York and deriving substantial revenue from interstate commerce.

18. Defendant Krant is subject to jurisdiction in New York because, upon information

and belief, he regularly does and transacts business in the State of New York using the name and

mark KBMG. In addition, upon information and belief, Defendant Krant has committed, and

continues to commit, (i) the complained-of tortious acts of trademark infringement, dilution and

unfair competition within the State of New York, and (ii) the complained-of tortious acts of

trademark infringement, dilution and unfair competition outside of New York State causing

injury to Plaintiffs within New York State while regularly doing and soliciting business and

engaging in a persistent course of conduct within New York State, deriving substantial revenue

for services rendered within New York State, expecting the tortious conduct to have

consequences in the State of New York and deriving substantial revenue from interstate

commerce.

19. Defendant Bialick is subject to jurisdiction in New York because, upon

information and belief, he regularly does and transacts business in the State of New York using

the name and mark KBMG. In addition, upon information and belief, Defendant Bialick has

committed, and continues to commit, (i) the complained-of tortious acts of trademark

infringement, dilution and unfair competition within the State of New York, and (ii) the

complained-of tortious acts of trademark infringement, dilution and unfair competition outside of

New York State causing injury to Plaintiffs within New York State while regularly doing and

soliciting business and engaging in a persistent course of conduct within New York State,

deriving substantial revenue for services rendered within New York State, expecting the tortious

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conduct to have consequences in the State of New York and deriving substantial revenue from

interstate commerce.

20. Defendant Gitlitz is subject to jurisdiction in New York because, upon

information and belief, he regularly does and transacts business in the State of New York using

the name and mark KBMG. In addition, upon information and belief, Defendant Gitlitz has

committed, and continues to commit, (i) the complained-of tortious acts of trademark

infringement, dilution and unfair competition within the State of New York, and (ii) the

complained-of tortious acts of trademark infringement, dilution and unfair competition outside of

New York State causing injury to Plaintiffs within New York State while regularly doing and

soliciting business and engaging in a persistent course of conduct within New York State,

deriving substantial revenue for services rendered within New York State, expecting the tortious

conduct to have consequences in the State of New York and deriving substantial revenue from

interstate commerce.

21. Defendant Hoffman is subject to jurisdiction in New York because, upon

information and belief, he regularly does and transacts business in the State of New York using

the name and mark KBMG. In addition, upon information and belief, Defendant Hoffman has

committed, and continues to commit, (i) the complained-of tortious acts of trademark

infringement, dilution and unfair competition within the State of New York, and (ii) the

complained-of tortious acts of trademark infringement, dilution and unfair competition outside of

New York State causing injury to Plaintiffs within New York State while regularly doing and

soliciting business and engaging in a persistent course of conduct within New York State,

deriving substantial revenue for services rendered within New York State, expecting the tortious

conduct to have consequences in the State of New York and deriving substantial revenue from

interstate commerce.

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VENUE

22. Venue is proper in the Southern District of New York pursuant to 28 U.S.C.

§ 1391(b) and (c) because, inter alia, a substantial part of the events giving rise to Plaintiffs’

claims occurred in this district and KBMG resides in this district as it is subject to personal

jurisdiction in this district.

FACTUAL BACKGROUND

Plaintiffs’ Rights

23. The KPMG Marks are famous and immediately recognizable throughout the

United States and are used and closely associated with the KPMG Services. Comprehensive

descriptions of the KPMG Services are available at WWW.US.KPMG.COM. KPMG

International and KPMG member firms, including KPMG LLP, have continuously and

extensively used the KPMG Marks since 1987. Through this continuous use, Plaintiffs have

acquired strong statutory and common law rights in the KPMG Marks.

24. KPMG International owns several United States Trademark Registrations for the

KPMG Marks on the Principal Register, including Reg. Nos. 2,339,547 and 2,386,745. Each of

these registrations has become incontestable under § 15 of the Lanham Act (15 U.S.C. § 1065),

and, as a result, is conclusive evidence of the validity of the KPMG Marks and of the registration

of the KPMG Marks, KPMG International’s ownership of the KPMG Marks, and of its exclusive

right to use the KPMG Marks in commerce. Copies of records of these registrations,

downloaded from the U.S. Patent and Trademark Office, are attached hereto as Exhibit A and are

made part of this Complaint.

25. KPMG International has used an active website on the Internet under the domain

name WWW.KPMG.COM since 1992.

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26. KPMG LLP’s website, WWW.US.KPMG.COM, provides information about

KPMG LLP, including its services, educational materials and seminars, office locations, contact

information, and recruiting information, among other things.

27. KPMG LLP employs more than 22,000 people delivering audit, tax and advisory

services in offices around the United States. Annual revenues of KPMG LLP from its services

rendered in the United States total in the billions of dollars. KPMG LLP spends millions of

dollars each year on marketing, advertising, recruiting, and community outreach programs in the

United States, all under or in connection with the KPMG Marks. As a result, the KPMG Marks

are famous and widely recognized by the general consuming public of the United States as a

designation of the source of KPMG services and in connection with KPMG LLP’s community

and philanthropic activities.

28. The KPMG Marks have acquired fame, secondary meaning and substantial

goodwill in the United States and worldwide, and are invaluable assets.

Defendants’ Willful Infringement of the KPMG Marks

29. Upon information and belief and unbeknownst to Plaintiffs, in 2004, the

Individual Defendants organized KBMG, which, according to the KBMG website at

WWW.KBLLC.COM, provides “traditional accounting and tax services, business consulting,

financial and estate planning as well as a variety” of other services. Upon information and

belief, Defendants provide many of the same services under the KBMG name and mark that

KPMG LLP provides under the KPMG Marks.

30. Upon information and belief, Defendants deliberately chose the name and mark

KBMG (the “Infringing Name”) to create confusion and the false appearance of endorsement or

sponsorship by, or affiliation with, Plaintiffs. Defendants further this confusion by displaying a

website at WWW.KBLLC.COM that resembles the color and style of Plaintiffs’ websites at

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WWW.KPMG.COM and WWW.US.KPMG.COM (i.e., a blue and white color scheme, with the

KBMG name and logo prominently displayed in the upper left corner). Defendants thus enhance

the false impression that KBMG is affiliated with or sponsored by Plaintiffs.

31. On information and belief, Defendants purposefully selected the Infringing Name

in bad faith to trade off the goodwill of Plaintiffs’ famous KPMG Marks.

32. Plaintiffs first became aware of Defendants’ use of the Infringing Name recently.

33. Defendants are not and have never been licensed or otherwise authorized by

Plaintiffs to use the Infringing Name, or any other name, mark or domain name confusingly

similar to the KPMG Marks.

KPMG LLP’s and Defendants’ Services Compete

34. As noted above, KPMG LLP (under the famous KPMG Marks) and Defendants

(under the Infringing Name) offer, in interstate commerce, many of the same or substantially the

same professional services, including accounting, auditing, tax and management and financial

consulting services. KPMG LLP and Defendants are thus competitors in the marketplace for

these services.

35. In addition, the above-noted U.S. Trademark Registrations owned by KPMG

International specifically cover the following services, which are the same as or substantially the

same as the services offered by Defendants: accounting, auditing, tax and management

consulting services, and financial consulting. (See Ex. A, trademark registrations).

Plaintiffs’ Communication with Defendants

36. On or about January 24, 2011, counsel for KPMG LLP sent a letter via Federal

Express to Defendants informing them of their infringing and otherwise improper conduct.

Plaintiffs attempted to reach an amicable resolution, but were unable to do so.

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Plaintiffs Are Being Irreparably Harmed

37. As a consequence of Defendants’ use of the Infringing Name, the public is likely

to believe mistakenly and to be confused into thinking that Defendants and their services

originate with, are affiliated with or are approved by Plaintiffs.

38. Such confusion and mistake have caused and will cause irreparable harm to

Plaintiffs. For example, dissatisfaction with Defendants or their services will mistakenly be

attributed to Plaintiffs, and any adverse publicity associated with Defendants will reflect

negatively upon Plaintiffs.

39. Plaintiffs will continue to be irreparably harmed as long as Defendants are

allowed to continue their use of the Infringing Name, or any other name, mark or domain name

including the initials “KBMG”, or any other word, term, phrase or combination or letters or

symbols confusingly similar to the KPMG Marks.

Count I - Trademark Infringement


(Violation of § 32(1) of the Lanham Act, 15 U.S.C. § 1114(1))
(Against all Defendants)

40. Plaintiffs re-allege paragraphs 1-39 as though set forth in full herein.

41. KPMG International owns and KPMG LLP is licensed to use the KPMG Marks in

the United States to identify its auditing, tax and advisory services, including on KPMG LLP’s

website at WWW.US.KPMG.COM. KPMG International’s federal registrations for the KPMG

Marks are valid, subsisting, and in full force and effect, and have become incontestable. Such

registrations constitute prima facie evidence of the validity of the KPMG Marks and of KPMG

LLP’s right to use the KPMG Marks in the United States in connection with its services.

42. Such registrations provide constructive notice to Defendants and all others of

KPMG International’s claim to ownership of the KPMG Marks pursuant to Section 22 of the

Lanham Act (15 U.S.C. § 1072).

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43. Through KPMG LLP’s extensive expenditure of time, money, labor, and other

efforts in marketing and promoting the KPMG Marks in the United States, KPMG LLP has

created a distinctive designation to the U.S. public that it is the source of the KPMG Services

associated with the KPMG Marks, and KPMG LLP has developed exceedingly valuable

goodwill and reputation for the KPMG Marks in the United States.

44. Despite Plaintiffs’ well known and established prior rights in the KPMG Marks,

Defendants used and are using the Infringing Name in connection with the same or substantially

the same services that are provided by KPMG LLP in the United States under the KPMG Marks,

which services move through the same or similar channels of trade and are sold to the same or

similar classes of customers.

45. Defendants have continued their unauthorized and infringing use of the Infringing

Name even after receiving a demand from counsel for KPMG LLP that such activity cease.

46. Defendants’ use of the Infringing Name is likely to cause confusion, mistake

and/or deception. For example, by reason of Defendants’ use of the Infringing Name, the public

is likely to believe, contrary to fact, that Defendants are affiliated with Plaintiffs, that

Defendants’ website is approved by or connected with Plaintiffs, and that Defendants’ services

are approved by or associated with Plaintiffs.

47. Unless enjoined, Defendants will continue their unauthorized use of the Infringing

Name.

48. Defendants’ aforementioned uses of the Infringing Name constitute willful and

knowing infringement of the KPMG Marks, in violation of Section 32(1) of the Lanham Act,

15 U.S.C. § 1114(1).

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49. Defendants’ infringement has caused irreparable injury and damage to Plaintiffs,

and unless enjoined will continue to cause irreparable injury and damage to Plaintiffs for which

Plaintiffs have no adequate remedy at law.

50. Plaintiffs are entitled to injunctive, monetary and other relief pursuant to Sections

34, 35 and 36 of the Lanham Act, 15 U.S.C. §§ 1116, 1117, and 1118.

Count II - False Designation of Origin and False Representations


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

51. Plaintiffs re-allege paragraphs 1 - 50 as though set forth in full herein.

52. Defendants’ use of the Infringing Name as set forth above constitutes false

designation of origin and false descriptions and representations of fact, in that such use is likely

to cause confusion, mistake and/or deception as to the affiliation, connection or association of

Defendants and/or their services with Plaintiffs and/or the services provided by KPMG LLP in

the United States.

53. For example, Defendants’ use of the Infringing Name is likely to cause the public

to believe falsely that Defendants and their services originate with or are sponsored, approved or

licensed by, or are in some other way associated or connected with Plaintiffs and/or the services

of KPMG LLP conducted under the KPMG Marks.

54. Defendants’ acts complained of herein constitute willful violations of Section

43(a)(1) of the Lanham Act, 15 U.S.C. §1125(a).

55. Defendants’ acts complained of herein have caused irreparable injury and damage

to Plaintiffs, and unless enjoined will continue to cause irreparable injury and damage to

Plaintiffs for which Plaintiffs have no adequate remedy at law.

56. Plaintiffs are entitled to injunctive, monetary and other relief pursuant to Sections

34, 35 and 36 of the Lanham Act, 15 U.S.C. §§ 1116, 1117, and 1118.

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Count III - Trademark Dilution


(Violation of § 43(c) of the Lanham Act, 15 U.S.C. § 1125(c))
(Against all Defendants)

57. Plaintiffs re-allege paragraphs 1-56 as though fully set forth herein.

58. KPMG LLP has extensively used the KPMG Marks in the United States for many

years to identify its services. By virtue of KPMG LLP’s long, extensive and continuous use of

the KPMG Marks in interstate commerce, the KPMG Marks have acquired great recognition and

have become and continue to be famous within the meaning of Section 43(c) of the Lanham Act,

15 U.S.C. § 1125(c).

59. The KPMG Marks were famous and distinctive in the United States years before

Defendants commenced use of the Infringing Name.

60. Defendants’ aforementioned use of the Infringing Name is likely to cause dilution

by blurring in that such use impairs the distinctiveness of the famous KPMG Marks, and dilution

by tarnishment of the famous KPMG Marks in that such use by persons or entities not affiliated

with Plaintiffs harms the reputation of the famous KPMG Marks.

61. Defendants’ acts set forth above constitute trademark dilution in violation of

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

62. Defendants’ acts of dilution by blurring and dilution by tarnishment have caused

irreparable injury and damage to Plaintiffs, and unless this Court enjoins Defendants from further

commission of said acts, Plaintiffs will continue to suffer irreparable injury and damage for

which they have no adequate remedy at law.

63. Plaintiffs are entitled to injunctive, monetary and other relief pursuant to

Sections 34, 35 and 36 of the Lanham Act, 15 U.S.C. §§ 1116, 1117, 1118, and 1125(c).

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Count IV - Dilution
(Violation of New York General Business Law 360-I)
(Against all Defendants)

64. Plaintiffs re-allege paragraphs 1-63 as though set forth in full herein.

65. The KPMG Marks are famous and are of a distinctive quality. KPMG LLP has

used the KPMG Marks in the United States, including in the State of New York, for many years

to identify its services. By virtue of KPMG LLP’s long, extensive and continuous use of the

KPMG Marks throughout the United States, including in the State of New York, the KPMG

Marks have acquired great recognition and have become and continue to be famous.

66. The KPMG Marks were famous and distinctive in the State of New York years

before Defendants commenced use of the Infringing Name.

67. Defendants’ aforementioned use of the Infringing Name in commerce in the State

of New York is likely to dilute the distinctive quality of the KPMG Marks, and, among other

things, to diminish the KPMG Marks’ ability to serve as source identifiers.

68. As a direct and proximate consequence of Defendants’ willful violation of

Plaintiffs’ rights, Plaintiffs’ business reputation and the goodwill associated with their KPMG

Marks and the favorable associations that consumers and the public make with the KPMG Marks

have been diluted, impaired and diminished.

69. Defendants’ acts set forth above constitute trademark dilution in violation of New

York General Business Law 360-I.

70. Defendants’ acts of dilution have caused irreparable injury and damage to

Plaintiffs, and unless this Court enjoins Defendants from further commission of said acts,

Plaintiffs will continue to suffer irreparable injury and damage for which they have no adequate

remedy at law.

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71. On information and belief, because of Defendants’ knowledge and awareness of

the fame and distinctiveness of the KPMG Marks at the time they adopted and used the

Infringing Name, Defendants’ actions were willful, and intentionally designed to trade off of and

dilute the fame of the KPMG Marks.

72. Plaintiffs are entitled to injunctive, monetary and other relief pursuant to New

York General Business Law 360-I.

Count V - Common Law Trademark Infringement


(Violation of New York Unfair Competition Law)
(Against all Defendants)

73. Plaintiffs re-allege paragraphs 1-72 as though set forth in full herein.

74. Defendants’ use in the State of New York of the Infringing Name as complained

of above capitalizes and trades upon and is intended to capitalize and trade upon the goodwill

and reputation of Plaintiffs and the KPMG Marks.

75. Defendants’ acts complained of above are designed with the intent to mislead and

deceive persons into believing that Defendants are sponsored, endorsed, licensed or authorized

by Plaintiffs or affiliated, connected or associated in some way with Plaintiffs, which they are

not.

76. Without Plaintiffs’ authorization, Defendants have intentionally and unlawfully

copied the KPMG Marks for the calculated purpose of passing off and/or palming off their

services as those of KPMG LLP, thereby trading upon the goodwill and reputation of Plaintiffs’

KPMG Marks, thus deceiving the public as to the true nature and source of Defendants’ services,

and falsely suggesting a connection or associate with Plaintiffs, all to Defendants’ profit and to

the damage and detriment of Plaintiffs.

77. Defendants’ past and continued copying and imitation of the KPMG Marks

falsely designate the origin of Defendants’ services, and are likely to cause consumer confusion,

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mistake or deception. Defendants have committed unlawful predatory practices intended to

deceive consumers rather than engage in legitimate competition.

78. Defendants’ acts of trademark infringement and unfair competition complained of

herein have caused irreparable injury and damage to Plaintiffs, and unless enjoined will continue

to cause irreparable injury and damage to Plaintiffs for which Plaintiffs have no adequate remedy

at law.

79. For this unfair competition, Plaintiffs are entitled to injunctive, monetary and

other relief pursuant to the common law of New York.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray the Court for its judgment:

1. Enjoining Defendants and Defendants’ officers, agents, servants, employees, and

attorneys, and all others acting in active concert or participation with them, who receive actual

notice of the judgment, from using as or as part of any trademark, service mark, trade name,

company name, corporate name, domain name, or other indicia of origin: (a) KBMG, or (b) any

other word, term, phrase or combination of letters or symbols that is confusingly similar to any

of the KPMG Marks;

2. Directing Defendants to provide an accounting of all revenues and profits derived

from their activities under the Infringing Name, or any other word, term, phrase or combination

of letters or symbols that is confusingly similar to any of the KPMG Marks;

3. Directing Defendants to deliver up for destruction any and all promotional

materials, advertisements, brochures, letterhead, business cards, and all prints, mechanicals,

plates or means to produce any such promotional materials bearing the Infringing Name;

4. Awarding Plaintiffs:

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