barefoot contessa trademark complaint.pdf

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CIVIL COVER SHEET

*» ^r¥M3* ctvil^vir"sheet and the information contained herein neither replace nor supplement the filing apdleRcety ( ipleadings orother papers as required by law, except as provided by local rules of court. This form, approved by-fheJudicial Conference ofthe United States inSeptember 1974, is required faruse ofthe ClerkofCourt forJinitiatingthe civildocket sheet.

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&aff* 01092PLAINTIFFS

Barefoot Contessa Pantry, LLC, InaGarten, and Ina Garten, LLC

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBERPaul, Weiss, Rifkind, Wharton &Garrison LLP1285 Ave. of the Americas, New York, NY 10019(212)373-3000

CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSFJ(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Violations of15 U.S.C. §§1114,1117 and 1125; N.Y. Gen. Bus. L §360-1; and N.Y. common law

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY at any time? NcEVesQjudge Previously Assigned

If yes, was this case Vol. • Invol. • Dismissed. No • Yes • If yes, give date &Case No.

Aqua Star (USA) Co., Contessa Premium Foods, Inc., O.F.I. Imports, Inc., andRed Chamber Co. Q

ATTORNEYS (IF KNOWN)

No B Yes •

NATURE OF SUIT

IS THIS AN INTERNATIONAL ARBITRATIONCASE?

(PLACE AN[x]INONE BOX ONLY)

TORTSACTIONS UNDER STATUTES

[]110[]120[]130[]140

[J 150

PERSONAL INJURY

[ ]310 AIRPLANE[ ]315 AIRPLANEPRODUCT

LIABILITY[ ]320 ASSAULT, LIBEL&

SLANDER

[ 1330 FEDERALEMPLOYERS'

LIABILITY

[ ]340 MARINE[ ]345 MARINE PRODUCT

LIABILITY

[ ]350 MOTOR VEHICLE[ ]355 MOTOR VEHICLE

PRODUCT LIABILITY( ]360 OTHER PERSONAL

INJURY[ 1362 PERSONAL INJURY -

MED MALPRACTICE

INSURANCE

MARINEMILLER ACTNEGOTIABLE

INSTRUMENTRECOVERY OFOVERPAYMENT &

ENFORCEMENT

OF JUDGMENTMEDICARE ACTRECOVERY OFDEFAULTEDSTUDENT LOANS(EXCL VETERANS)RECOVERY OF

OVERPAYMENTOF VETERAN'SBENEFITS

STOCKHOLDERS

SUITS

OTHERCONTRACT

CONTRACTPRODUCT

LIABILITY

FRANCHISE

PERSONAL INJURY FORFEITURE/PENALTY[ ]367 HEALTHCARE/PHARMACEUTICAL PERSONAL , , 625 DRUGRELATEDINJURY/PRODUCT LIABILITY SE,ZURE 0F PROPERTY[ ]365 PERSONALINJURY 21 USC 881

PRODUCT LIABILITY . , fiqn nTuFR[] 368 ASBESTOS PERSONAL M6900THER

INJURY PRODUCTLIABILITY

PERSONAL PROPERTY

BANKRUPTCY

[ ]422 APPEAL28 USC 158

[ ]423 WITHDRAWAL28 USC 157

[]151(]152

[]153

[]160

[]190

[ ]195

[]196

REAL PROPERTY

[ ]370 OTHER FRAUD[ 1371 TRUTH IN LENDING

[ ]380 OTHER PERSONALPROPERTY DAMAGE

[ ]385 PROPERTY DAMAGEPRODUCT LIABILITY

PRISONER PETITIONS

[ ]463 ALIEN DETAINEE[ ]510 MOTIONS TO

VACATE SENTENCE

28 USC 2255

[ ]530 HABEAS CORPUS[ ] 535 DEATH PENALTY[ ]540 MANDAMUS &OTHER

ACTIONS UNDER STATUTES

CIVIL RIGHTS

[ ]440 OTHER CIVILRIGHTS(Non-Prisoner)

[ ]441 VOTING[ ]442 EMPLOYMENT[ ]443 HOUSING/

ACCOMMODATIONS[ 1445 AMERICANS WITH

DISABILITIES -EMPLOYMENT

[ 1446 AMERICANS WITHDISABILITIES -OTHER

[ ]448 EDUCATION

PRISONER CIVIL RIGHTS

[ ]550 CIVILRIGHTS( ]555 PRISON CONDITION

560 CIVIL DETAINEE

LABOR

[ ]710 FAIR LABORSTANDARDS ACT

[ ]720 LABOR/MGMTRELATIONS

[ ]740 RAILWAY LABOR ACT

[ J 751 FAMILYMEDICALLEAVE ACT (FMLA)

[ ]790 OTHER LABORLITIGATION

[ ]791 EMPL RET INCSECURITY ACT

IMMIGRATION

[ ]462 NATURALIZATIONAPPLICATION

[ ]465 OTHER IMMIGRATIONACTIONS

[ ]210

[ ]220[ ]230

11240[]245

[ ]290

LAND

CONDEMNATION

FORECLOSURERENT LEASES

EJECTMENT

TORTS TO LANDTORT PRODUCT

LIABILITY

ALL OTHERREAL PROPERTY

CONDITIONS OF CONFINEMENT

Checkifdemanded in complaint:

CHECK IF THIS IS ACLASS ACTIONUNDER F.R.C.P. 23

PROPERTY RIGHTS

[ ]820 COPYRIGHTS[ ]830 PATENTft] 840 TRADEMARK

SOCIAL SECURITY

[ ]861 HIA(1395ff)[ ]862 BLACK LUNG(923)[ ]863 DIWC/DIWW(405(g))[ ]864 SSID TITLE XVI[ ]865 RSI (405(g))

FEDERAL TAX SUITS

[ J870 TAXES (U.S. PlaintifforDefendant)

[ ]871 IRS-THIRDPARTY26 USC 7609

OTHER STATUTES

I 1375 FALSE CLAIMS( (400 STATE

REAPPORTIONMENT

[ ]410 ANTITRUST[ ]430 BANKS &BANKING[ ]450 COMMERCE[ J460 DEPORTATION[ 1470 RACKETEER INFLU

ENCED & CORRUPTORGANIZATION ACT(RICO)

[ ]480 CONSUMER CREDIT[ )490 CABLE/SATELLITE TV

[ ]850 SECURITIES/COMMODITIES/EXCHANGE

[ 1890 OTHERSTATUTORYACTIONS

[ ]891 AGRICULTURAL ACTS

[ ]893 ENVIRONMENTALMATTERS

[ ]895 FREEDOM OFINFORMATION ACT

[ ) 896 ARBITRATION[ J 899 ADMINISTRATIVE

PROCEDURE ACT/REVIEW ORAPPEAL OF AGENCY DECISIO

[ ]950 CONSTITUTIONALITY OSTATE STATUTES

DDEMAND $Unknown OTHER.

DOYOUCLAJM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?

JUDGE DOCKET NUMBER

Check YES onlyifdemandedincomplaintJURY DEMAND: EYES LNO NOTE: You must also submit at the time of filing the Statement of Relatedness form (Form IH-32)

X

#

(PLACEANxINONEBOXONLY) ORIGIN

H 1 Original • 2 Removed from • 3 Remanded • 4 Reinstated or Q 5 Transferred from • 6 Multidistrict • 7 Appeal to DistrictProceeding stateCourt from Reopened (Specify District) Litigation ^^Judge

• a. all parties represented Appellate Judgment

I | b. At least oneparty Is pro se.

(PLACE AN x INONEBOXONLY) BASIS OF JURISDICTION IFDIVERSITY, INDICATE

• 1 US PLAINTIFF • 2 U.S. DEFENDANT [x] 3 FEDERAL QUESTION • 4 DIVERSITY CITIZENSHIP BELOW.(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiff and one box for Defendant)

PTF DEF PTFDEF PTF DEFCITIZEN OF THIS STATE [11 [11 CITIZEN OR SUBJECT OF A [ ] 3 [ ] 3 INCORPORATED andPRINCIPAL PLACE [ ]5 [ ]5

FOREIGN COUNTRY OF BUSINESS INANOTHER STATE

CITIZEN OF ANOTHER STATE []2 []2 INCORPORATED orPRINCIPAL PLACE []4[]4 FOREIGN NATION []6 []6OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

Ina Garten, 46 Newton Lane, East Hampton, New York 11937, Suffolk CountyIna Garten LLC, 46 Newton Lane, East Hampton, New York 11937, Suffolk CountyBarefoot Contessa Pantry, LLC, 46 Newton Lane, East Hampton, New York 11937, Suffolk County

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

O.F.I. Imports, Inc., 1912 East Vernon Ave., Vernon, California, 90058, Los Angeles CountyContessa Premium Foods, Inc., 4000 Noakes St., Commerce, California 90023, Los Angeles CountyAqua Star (USA) Co., 1912 East Vernon Ave., Vernon, California, 90058, LosAngeles CountyRed Chamber Co., 912 East Vernon Ave., Vernon, California, 90058, Los Angeles County

DEFENDANT(S) ADDRESS UNKNOWN _,_ ^ A#>/,em.A1„REPRESENTATION ISHEREBY MADE THAT, ATTHIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TOASCERTAIN

RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

N/A

Check one: THIS ACTION SHOULD BE ASSIGNED TO: • WHITE PLAINS S MANHATTAN(DO NOT checkeither box ifthis a PRISONER PETITION/PRISONER CIVIL RIGHTSCOMPLAINT.)

DATE 02/13/15 /^IGNATURB^F ATTORNEY OFRECORD/0 ADMITTED TO PRACTICE IN THIS DISTRICT//^_^P yC(X^(i\jJ/ [J YES (DATE ADMITTED Mo.05 Yr. 1997 )

RECEIPT # Attorney Bar Code # LB-6621

MagistrateJudge is to be designated by the Clerk of the Court.

Magistrate Judge is so Designated.

Ruby J. Krajick, Clerkof Court by Deputy Clerk, DATED .

UNITEDSTATES DISTRICT COURT (NEW YORK SOUTHERN)

M,^:zmi

ORIGINALUNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK *vf A15 tf-« *\ 2

BAREFOOT CONTESSA PANTRY, LLC , INAGARTEN, and INA GARTEN, LLC,

Plaintiffs,

AQUA STAR (USA) CO., CONTESSAPREMIUM FOODS, INC., O.F.I. IMPORTS, INC.,and RED CHAMBER CO.

Defendants.

Civil Action No.

COMPLAINT

JURY TRIAL DEMANDED:

Plaintiffs Barefoot Contessa Pantry, LLC, Ina Garten ("Chef Garten"), and Ina

Garten, LLC (together "Barefoot Contessa"), by their attorneys Paul, Weiss, Rifkind, Wharton &

Garrison LLP, for their complaint against defendants Aqua Star (USA) Co. ("Aqua Star"),

Contessa Premium Foods, Inc. ("Contessa Premium"), O.F.I. Imports, Inc. ("OFI"), and Red

Chamber Co. ("Red Chamber") (collectively, "Defendants"), allege as follows:

Nature of the Action

1. Barefoot Contessa brings this action for injunctive relief and damages to

halt a campaign of consumer confusion recently launched by its ex-licensee, which is selling —

in bad faith and without any authorization by Barefoot Contessa — frozen dinners in packaging

nearly identical to Barefoot Contessa's distinctive trade dress and frozen dinners under the

BAREFOOT CONTESSA trademark.

2. Launched more than 35 years ago, Barefoot Contessa, and its owner and

founder Ina Garten, have realized enormous success across a range of cooking-related

publishing, broadcast and merchandising ventures, which include a celebrated series of

cookbooks, a celebrated Emmy-award winning television show on the Food Network for more

than twelve years, and popular lines of high-end food products. The BAREFOOT CONTESSA

CO

brand and associated trademarks and other intellectual property owned by Barefoot Contessa

have amassed substantial consumer goodwill, distinction, and commercial value.

3. In 2012, Barefoot Contessa and frozen food manufacturer and distributor

Contessa Premium — unrelated entities with similar trademarks who agreed in a prior settlement

agreement never to use the other's trademarks in a confusing manner — entered into a license in

which Barefoot Contessa granted Contessa Premium the right to use its intellectual property,

including the BAREFOOT CONTESSA mark, in connection with the manufacture, distribution

and sale of frozen dinners under the BAREFOOT CONTESSA brand. Consistent with Barefoot

Contessa's emphasis on the highest quality food, ingredients and goods across its businesses, the

license granted Barefoot Contessa strict control over the quality of the frozen dinners produced

pursuant to the license and the use of its intellectual property in connection with the licensed

products.

4. To that end, Barefoot Contessa itself designed — using its recognizable

shaded-stripe pattern that adorns nearly all of its products and a design similarto the distinctive

trade dress of its other food products — the packaging for the frozen dinners: a 22-ounce plastic

pouch with, on the front, the BAREFOOT CONTESSA mark superimposed on a pattern of

alternating vertical stripes in similar shades of red in the top third of the package, a banner

featuring the recipe name in all lower case letters, a description and photograph of the prepared

dinner that wraps around the right side of the package, and, on the back, a photo of the fresh

ingredients and a personalized note from Chef Garten, signed "Ina," including a tip on how to

make the meal "Even Better."

5. The BAREFOOT CONTESSA line of frozen dinners was launched in

February 2013, and was sold nationwide in major supermarket chains for over a year.

BAREFOOT CONTESSA frozen dinners were also marketed and promoted nationally online, on

television, and in print.

6. On April 30, 2014, Contessa Premium — facing an uncertain financial

future — assigned its assets for the benefit of its creditors, and Barefoot Contessa, consistent

with its rights under the license, terminated the license effective May 1, 2014. OFI, a worldwide

marketer and distributor of seafood products, purchased Contessa Premium's assets, including its

trademarks, and approached Barefoot Contessa to become its new frozen food licensee — an

invitation Barefoot Contessa categorically rejected given OFI's lack of experience in the frozen

food business beyond seafood. Instead, Barefoot Contessa granted OFI solely the limited right to

sell off existing inventory of BAREFOOT CONTESSA frozen dinners for a limited period,

subject to OFI's explicit acknowledgment in the sell-through agreement that OFI would not

manufacture or marketany new product, and that it wouldpromptly destroy any items, including

packaging, using Barefoot Contessa's intellectual property.

7. With full knowledge of Barefoot Contessa's intellectual property rights

and its rights under the settlement, license and sell-through agreements — and notwithstanding

that OFI and Contessa Premiumhad no rights whatsoever to use Barefoot Contessa's intellectual

property and that OFI's sell-through rights are long expired — Defendants are willfully, and in

bad faith, manufacturing, distributing and selling a line of frozen dinners (the vast majority of

which are the same dinners using the same recipes as the dinners previously manufactured under

the terminated license) in packaging that is virtually identical to the trade dress of Barefoot

Contessa's frozen dinners. Indeed, the sole differences in the packaging are immaterial:

Defendants' packaging replaces the BAREFOOT CONTESSA mark with CONTESSA CHEF

INSPIRED; it replaces the photograph of Chef Garten with a photograph of another brunette

woman; it replaces the signature "Ina" with "Enjoy," written in the same font and style; and it

substitutes barely noticeable differences in wording in the personalized note section.

8. Also in violation of Barefoot Contessa's rights and the sell-through

agreement, Defendants are still selling and, upon information and belief, manufacturing

counterfeit BAREFOOT CONTESSA frozen dinners in the actual packaging previously used by

Contessa Premium, pursuant to its now-terminated license.

9. Uponinformation andbelief, Defendants' frozen dinner line is intended to

target directly the likely consumers of BAREFOOT CONTESSA-branded products and products

bearing Barefoot Contessa's distinctive food product trade dress. Upon information and belief,

Defendants' unauthorized use of Barefoot Contessa's intellectual property is intended to take

unfair advantage of Barefoot Contessa's established and unparalleled reputation in the field of

cooking and food-related products, in order to market its frozen dinner line more successfully to

consumers. Although they have no right to do so, and were refused the right to do so by

Barefoot Contessa, Defendants will thereby obtain the benefits of the reputation and consumer

goodwill thatBarefoot Contessa has painstakingly builtovermore than35 years, andDefendants

will enjoy — for free — the benefit that would be enjoyed by official licensees or endorsees,

which they are not.

10. Defendants' conduct is likely to confuse a significant and substantial

number of consumers and to induce them into falsely believing that Defendants are somehow

associated with Barefoot Contessa, and/or that Barefoot Contessa has sponsored, endorsed, or

approved Defendants' products. Upon information and belief, Defendants' actions are

deliberate, willful, and in conscious disregard of Barefoot Contessa's rights.

11. In so acting, Defendants are engaging in willful infringement and dilution

of Barefoot Contessa's famous trade dress and trademarks and willful breach of contract, among

other violations. Barefoot Contessa therefore brings this action seeking damages arising from,

and an injunction prohibiting, Defendants' unauthorized and unlawful use of its intellectual

property.

THE PARTIES

12. Plaintiff Barefoot Contessa Pantry, LLC is a limited liability company

organized under the laws ofNew York with its principal place of business at 46 Newtown Lane,

East Hampton, New York 11937.

13. Plaintiff Ina Garten is an individual with an address at 46 Newtown Lane,

East Hampton, New York 11937. Ina Garten is an owner of Ina Garten, LLC and Barefoot

Contessa Pantry, LLC.

14. Plaintiff Ina Garten, LLC is a limited liability company organized under

the laws ofNew York with an address at 46 Newtown Lane, East Hampton, New York 11937.

15. Defendant Aqua Star (USA) Co. is a corporation organized under the laws

of Washington State with its principal place of business at 1912 East Vernon Ave., Vernon,

California, 90058.

16. Upon information and belief, Defendant Contessa Premium Foods, Inc. is

a corporation organized under the laws of California and doing business at 4000 Noakes St.,

Commerce, California 90023.

17. Defendant O.F.I. Imports, Inc. is a corporation organized under the laws of

California with its principal place of business at 1912 East Vernon Ave., Vernon, California,

90058.

18. Defendant Red Chamber Co. is a corporation organized under the laws of

California with its principal place of business at 1912 East Vernon Ave., Vernon, California,

90058. Red Chamber Co. is the parent company of OFI, Aqua Star, and, on information and

belief, Contessa Premium.

JURISDICTION AND VENUE

19. This action arises under the Lanham Act, 15 U.S.C. § 1051, etseq., and

the statutory and common laws of the State of New York. This Court's jurisdiction is based

upon 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1332, and 1338. The amount in controversy

exceeds $75,000. This Court has supplemental jurisdiction over the related state and common

law claims pursuant to 28 U.S.C. §§ 1338(b) and 1367(a).

20. This Court has personal jurisdiction over Defendants pursuant to N.Y.

Civ. Prac. L. & R. ("CPLR") § 302(a), because Defendants have (i) transacted business within

the state (CPLR § 302(a)(1)); (ii) committed a tortious act within the state (CPLR §302(a)(2));

and/or (iii) committed a tortious act without the state causing injury to person or property within

the state, expects or should reasonably expect the act to have consequences in the state, and

derives substantial revenue from interstate commerce (CPLR § 302(a)(3)(ii)).

21. This Court also has personal jurisdiction over Defendants because they

consented bycontract to be subject to thejurisdiction of this Court.

22. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b)(1) because

Defendants reside in this district (as that term is defined in 28 U.S.C. § 1391(c)(2)) and/or

pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving

rise to this action have occurred and/or will occur in this district. Venue is also proper in this

district because the contracts at issue specify that all disputes arising out of them shall be

adjudicated in this district.

BACKGROUND

Chef Garten and Barefoot Contessa

23. Chef Garten is a celebrated author and award-winning television

personality, and the creator and driving force behind the BAREFOOT CONTESSA brand of

cooking-related publications, programs and consumer products.

24. TheBAREFOOT CONTESSA brand is named after a small but celebrated

specialty food store in the Hamptons operated by Chef Garten beginning in 1978. The

BAREFOOT CONTESSA store quickly amassed a cult-like following of customers and since

then the BAREFOOT CONTESSA brand has grown through a series of highly successful

publishing, broadcasting and merchandising ventures into one ofthe premier brands in its field.

25. Since 1999, Chef Garten has published nine critically acclaimed and

highly popular cookbooks under the BAREFOOT CONTESSA brand. The first printing ofher

latest book, Make It Ahead: a Barefoot Contessa Cookbook, was 1.3 million copies and debuted

at number one on the New York Times bestseller list. Her previous and similarly successful

titles include Barefoot Contessa Cookbook (1999), Barefoot Contessa Parties! (2001), Barefoot

Contessa Family Style (2002), Barefoot in Paris (2004), Barefoot Contessa at Home (2006),

Barefoot Contessa Back to Basics (2008), Barefoot Contessa How Easy is That? (2010), and

Barefoot Contessa Foolproof (2012). Eight of the BAREFOOT CONTESSA cookbooks have

been prominently ranked on the New York Times bestseller list. Five ofthe books were number

one on the New York Times bestseller list. Two of them — The Barefoot Contessa Cookbook

and The Barefoot Contessa Parties! —were nominated for a prestigious James Beard Award in

the Entertaining & Special Occasion Cookbooks category. There currently are more than ten

million BAREFOOT CONTESSA cookbooks in print.

26. The BAREFOOT CONTESSA brand also has a substantial footprint in

television and electronic media entertainment. Its centerpiece is the award-winning home

entertainment cooking show BarefootContessa, which airs six days a week on the Food Network

— to an audience of 300,000 to 1 million viewers per episode — and has run without

interruption for twelve years. Created and hosted by Chef Garten, and filmed in the kitchen of

her East Hampton home, the show features recipes, menus, and serving ideas for entertaining.

Barefoot Contessa has a large and devoted viewership, was nominated for Daytime Emmy

awards in 2005, 2007 and 2008 and received the Daytime Emmy Award for Outstanding

Lifestyle/Culinary Show Host in 2009 and 2010. Chef Garten also received a James Beard

Award for Outstanding Personality/Host in 2014. The show is supported by a dedicated and

frequently updated website, www.barefootcontessa.com. the content of which includes recipes

and tips featured on each episode of the show, along with a popular Facebook blog by Chef

Garten that was launched in 2012. Like Chef Garten's cookbooks and television show, the

Facebook blog has a substantial following: it gained more than 100,000 followers within a few

weeks of launch, and has over 750,000 followers today. Chef Garten also has over a quarter of a

million followers on Instagram and tens of thousands of followers on Twitter and Pinterest.

27. To maintain her goodwill and the prestige of the BAREFOOT

CONTESSA brand, Chef Garten has been highly selective with respect to merchandizing

ventures. Since the inception of the BAREFOOT CONTESSA brand, she has been careful to

associate it solely with a handful of product lines over which she has substantial creative input

and absolute control over the design and quality, to ensure that any products bearing the brand

conform to the core values and high quality standards for which the brand is famous. The

Barefoot Contessa ventures into consumer food products have included a line of high-quality

packaged mixes, marinades, sauces, and preserves that Chef Garten designed and launched under

the BAREFOOT CONTESSA mark in 2006. And, as further discussed below, they also

included a line of frozen dinners manufactured and marketed under license by Contessa Premium

in 2013 and 2014.

28. The BAREFOOT CONTESSA food products have been marketed

nationally online, on television, and in print. Barefoot Contessa and its business partners and

licensees have spent millions of dollars in advertising and promoting the BAREFOOT

CONTESSA brand using the Barefoot Contessa intellectual property, including the Barefoot

Contessa trade dress and the BAREFOOT CONTESSA and INA GARTEN marks.

29. By delivering consistently high quality products and media programming,

and through its signature emphasis on natural ingredients and time-saving tips, the BAREFOOT

CONTESSA-branded ventures have generated immense commercial goodwill and acclaim for

the brand and its creator.

The Barefoot Contessa Intellectual Property

30. Ina Garten, LLC owns several valid and incontestable United States

trademark registrations for BAREFOOT CONTESSA in connection with various goods and

services associated with the BAREFOOT CONTESSA brand. {See Ex. A, Registration No.

2,892,226 (2004) (retail store services featuring gourmet foods and books); Ex. B, Registration

No. 3,216,738 (2007) (online retail store services featuring cookbooks, recipes, stationery,

journals, coffee mugs, canvas bag, t-shirts, peppermills, zester, and/or other food/cooking related

merchandise; entertainment services in the nature of ongoing television programs in the field of

food and cooking, and in the nature of providing online information services featuring Ina

Garten, her television program, and her books, providing an online data base in the field of

recipes and cooking information); and Ex. C, Registration No. 4,203,987 (2012) (jams; curds;

fruit preserves; mixes for bakery goods; cake mixes; cookie mixes; frosting mixes; icing mixes;

pancake mixes; waffle mixes; muffin mixes; marshmallow mixes; coffee; chocolate; hot

chocolate; flavoring syrups; topping syrups).) Barefoot Contessa has used the BAREFOOT

CONTESSA mark in interstate commerce continuously throughout its history as a symbol of the

consistent quality andhighvalue of its services and products.

31. Barefoot Contessa uses distinctive design elements in connection with the

BAREFOOT CONTESSA-branded ventures, which have come to represent Barefoot Contessa in

the minds of consumers. BAREFOOT CONTESSA products and promotional materials almost

always feature a pattern ofalternating vertical or horizontal stripes ofequal width, in lighter and

darker shades of the same color (the "Shaded Stripe Pattern"), which was inspired by the

wallpaper in Chef Garten's kitchen. Avisual hallmark ofthe brand, this Shaded Stripe Pattern is

featured inside and on the spine of the BAREFOOT CONTESSA cookbooks, the box for the

cookbook sets, the BAREFOOT CONTESSA website, and on the packaging for the

BAREFOOT CONTESSA food products. (See, e.g., Exs. D - E.)

32. All food products marketed under the BAREFOOT CONTESSA brand

carry a consistent and inherently distinctive trade dress (the "Food Product Trade Dress"),

developed solely by Barefoot Contessa, which incorporates the signature design elements shared

byother BAREFOOT CONTESSA-branded content and products.

33. First, in the top third of the packaging for each product, the Food Product

Trade Dress incorporates the distinctive Shaded Stripe Pattern. Second, the Food Product Trade

Dress incorporates the mark BAREFOOT CONTESSA printed in white all lower-case letters on

top of the Shaded Stripe Pattern. Third, the Food Product Trade Dress includes a horizontal

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banner beneath the striped pattern with the recipe name centered inall lower case letters. Fourth,

the Food Product Trade Dress includes a photograph of the prepared product on the lower

portion of the packaging that wraps around its right side. Fifth, the back of the package includes

quotes and tips from ChefGarten. (Exs. D - E.)

34. As a result of its inherent and acquired distinctiveness, the Food Product

Trade Dress has come to represent the BAREFOOT CONTESSA brand in the minds of

consumers.

The License with Contessa Premium

35. ContessaPremium is a manufacturer and distributor of seafood and frozen

food products, which owns the registered trademark CONTESSA. Images of examples of

packaging for CONTESSA-branded frozen food products are attached as Exhibit F.

36. In December 2011, Barefoot Contessa and Contessa Premium, recognizing

the potential for consumer confusion from the parties' use ofthe similar trademarks, entered into

a settlement and coexistence agreement regarding the use of their respective trademarks (the

"Settlement Agreement"). The Settlement Agreement specifically concerned the parties' use of

the CONTESSA mark to which Contessa Premium asserted an interest, and the BAREFOOT

CONTESSA mark owned by Barefoot Contessa. Pursuant to that Settlement Agreement, the

parties specifically agreed to "make all efforts to avoid confusion between their two brands," and

Contessa Premium was expressly prohibited from "us[ing]... any word or design element in

combination with CONTESSA that would be likely to create consumer confusion between

Contessa Premium and Garten." Barefoot Contessa agreed not to object to or interfere with

Contessa Premium's use of the CONTESSA mark in combination with other elements (exclusive

of BAREFOOT or its equivalents) in connection with frozen meals, frozen entrees, or frozen

seafood, so long as such use was consistent with the Settlement Agreement. Barefoot Contessa

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also agreed not to seek to register or use the BAREFOOT CONTESSA mark in connection with

frozen meals, frozen entrees and frozen seafood anywhere in the world. The Settlement

Agreement is binding on the parties' successors, assigns, and affiliated companies.

37. Following the settlement, Barefoot Contessa and Contessa Premium

began discussing a potential licensing venture. Thereafter, on September 12, 2012, the parties

entered into a License Agreement (the "License"), pursuant to which Barefoot Contessa granted

Contessa Premium a license to use certain of its trademarks, including BAREFOOT

CONTESSA and INAGARTEN, ChefGarten's likeness andbiographical information, andother

intellectual property in connection with a line offrozen dinners to be manufactured and marketed

by Contessa Premium.

38. The design for the packaging for the BAREFOOT CONTESSA frozen

dinners (the "Frozen Dinner Trade Dress") was developed and created byBarefoot Contessa.

39. Like all other BAREFOOT CONTESSA-branded product packaging, the

Frozen Dinner Trade Dress incorporated each element of the Food Product Trade Dress: (1) the

Shaded Stripe Pattern onthe top third ofthe package; (2) "barefoot contessa" printed inwhite on

top ofthe Shaded Stripe Pattern; (3) a horizontal banner beneath the Shaded Stripe Pattern with

the recipe name in all lower case letters; (4) a photograph of the prepared dinner on the lower

portion ofthe packaging that wraps around its right side; (5) on the back of the package, quotes

and tips from Chef Garten; as well as some additional design elements specific to the Frozen

Dinner Trade Dress. (See Ex. E)

40. Specifically, the front panel of the Frozen Dinner Trade Dress features: (1)

the Shaded Stripe Pattern in lighter and darker shades ofred inthe top third ofthe packaging; (2)

on top of the Shaded Stripe Pattern, "barefoot contessa" printed in white and a photograph of

12

Chef Garten, along with a dash and the word "Ina" in white cursive font intended to look like

handwriting; (3) a colored horizontal banner beneath the Shaded Stripe Pattern with the recipe

name (e.g., "beef stew bourguignon") in white text and all lower case letters; and (4) a

photograph of the prepared dinner on the lower portion of the front panel, with a three-line

description ofthe product in black text in the upper left corner ofthe photograph. (See Id.)

41. The right side panel of the Frozen Dinner Trade Dress carries over the

Shaded Stripe Pattern, the colored horizontal banner with the recipe name in the same type and

style as the front panel, and the photograph that are featured on the front. (See Id.)

42. The left side panel of the Frozen Dinner Trade Dress features the

nutritional panel surrounded by the same Shaded Stripe Pattern. (See Id.)

43. The back panel of the Frozen Dinner Trade Dress features a white box

surrounded by the red Shaded Stripe Pattern. The top and bottom ofthe white box is divided by

a red line. The bottom portion ofthe box contains cooking instructions and a photograph ofthe

product being prepared in a saute" pan. The top left hand corner of the white box features a

colored banner with the recipe name in white text that is all lower case. The BAREFOOT

CONTESSA brand name appears in the top right corner ofthe white box in red lettering and all

lower case letters. (See Id.)

44. Beneath the banner containing the recipe name, the back panel of the

Frozen Dinner Trade Dress features a quote from Chef Garten in black and a tip to make the

product "Even Better," with "Even Better" in red text followed by the tip in black text. Beneath

the tip there is adash followed by "Ina" in red cursive font intended to look like handwriting. To

the right of this text is a photograph of some of the ingredients found in the product and the

13

phrase "Nothing tastes better than a freshly cooked dinner made with great ingredients." in italic

red text. (See Id)

45. Consistent with Barefoot Contessa's general emphasis on high quality

food, ingredients and goods across each of its business lines, the License granted Barefoot

Contessa strict control over the quality of goods produced pursuant to the License and the use of

the licensed Barefoot Contessa intellectual property. Forexample, the License required approval

from Barefoot Contessa for any significant changes to the quality of the frozen dinners, including

changes to ingredient sourcing.

46. Using the proprietary recipes and quality standards supplied by Barefoot

Contessa and following the approval of the products by Barefoot Contessa, beginning in 2013,

Contessa Premium manufactured and marketed nine separate products in connection with the

frozen food line: "beef stew bourguignon," "sesame chicken & noodles," "shrimp scampi &

linguine," "creamy chicken stew," "garlic & ginger chicken," "jambalaya," "pasta carbonara

with pancetta," "penne pastawith five cheeses" and"tequila lime chicken."

47. The line was marketed using the Frozen Dinner Trade Dress and other

Barefoot Contessa intellectual property supplied byBarefoot Contessa, which Contessa Premium

incorporated into a dedicated website, http://www.barefoot.contessa.com, that it maintained to

promote the products to consumers.

48. The line was advertised and promotedonline, on television, and in print

and sold in supermarket chains and retailers including Stop & Shop, Safeway, Publix and

Walmart nationwide. The licensed BAREFOOT CONTESSA frozen dinners reached close to

$20 millionin retail sales in less than two years and held strong market share in severalkey

retailers.

14

OFI's Acquisition ofContessa Premium and Execution ofthe Sell-Through Agreement

49. On or around April 30, 2014, in the face ofmounting financial difficulties,

Contessa Premium executed a general assignment ofits assets for the benefit ofits creditors. In

light of the assignment, and pursuant to its rights under Section 7(a)(iii) of the License, Barefoot

Contessa terminated the License on May 1, 2014.

50. Immediately upon termination, Contessa Premium was obligated under the

License to stop manufacturing all products under the License and to cease all use ofthe licensed

Barefoot Contessa intellectual property, but was permitted to sell "Sell-Through Items," certain

then-existing inventory, for a limitedperiod.

51. Shortly after the termination ofthe License, upon information and belief,

OFI, through its affiliate Aqua Star, purchased substantially all of the Contessa Premium assets,

including the CONTESSA brand name and trademark. In connection with the acquisition, OFI

approached Barefoot Contessa with a request for a new license to continue production of the

BAREFOOT CONTESSA line of frozen dinners. Barefoot Contessa refused OFI's request

because OFI has no experience manufacturing food items beyond seafood, and therefore

Barefoot Contessa was not comfortable that OFI could manufacture the product consistent with

Barefoot Contessa's stringent quality standards.

52. Instead, OFI and Barefoot Contessa entered into a limited agreement (the

"Sell-Through Agreement"), pursuant to which OFI was permitted to sell the Sell-Through Items

for a limited period that is now long expired, but was explicitly prohibited from manufacturing or

selling any new product and was required to destroy any remaining Sell-Through Items upon the

expiration ofits rights. Other than in connection with its limited rights to sell the Sell-Through

Items, OFI had no right to use any of theBarefoot Contessa intellectual property.

15

53. Although OFI requested that it be allowed to manufacture additional

product to fill empty BAREFOOT CONTESSA frozen food dinner packages that it acquired

from Contessa Premium, Barefoot Contessa refused OFI's request. Instead, the Sell-Through

Agreement required that OFI promptly destroy any items, including packaging, that use the

Barefoot Contessa intellectual property, subject toOFI's right to sell the Sell-Through Items.

Defendants' Unlawful Activities

54. Although Defendants have no license or right to use any of Barefoot

Contessa's intellectual property and OFI's sell-through rights have expired, Defendants are

currently attempting to pass off their products as licensed BAREFOOT CONTESSA products, in

violation of their agreements with Barefoot Contessa and Barefoot Contessa's intellectual

property rights, in at least two ways: (1) Defendants are manufacturing, distributing, and selling

a new line of frozen dinners branded as CONTESSA CHEF INSPIRED using trade dress that is

a direct and brazen copy of the Frozen Dinner Trade Dress and the Food Product Trade Dress;

and (2) Defendants are selling and, upon information and belief, manufacturing and distributing,

BAREFOOT CONTESSA frozen dinners in the exact same package in which the licensed

BAREFOOT CONTESSA frozen dinners were sold (the "Licensed Package"), which

prominently displays the BAREFOOT CONTESSA trademark and other Barefoot Contessa

intellectual property (together, the "Infringing Products").

Defendants' "Contessa Chef-Inspired" Frozen Dinners

55. Defendants currently are marketing a new line of frozen dinners under the

mark CONTESSA CHEF INSPIRED. (See Ex. G.) CONTESSA CHEF INSPIRED frozen

dinners are currently being offered for sale in certain markets, including in Stop & Shop in

Hampton Bays, New York. Upon information and belief, Defendants have already begun to

16

distribute and sell their CONTESSA CHEF INSPIRED products to consumers nationally,

including in this judicialdistrict.

56. The entire package for the CONTESSA CHEF INSPIRED frozen dinners

(the "Contessa Chef Inspired Package") is directly copied from the Frozen Dinner Trade Dress

and the Food Product Trade Dress with only minor, immaterial alterations. (Compare Ex. E to

Ex. G.)

57. The front of the Contessa Chef Inspired Package is virtually identical to

theFrozen Dinner Trade Dress andthe Food Product Trade Dress. It features: (1) the exact same

Shaded Stripe Pattern in lighter and darker shades ofred in the top third ofthe packaging; (2) the

brand name, including the CONTESSA mark, printed in white on top of the Shaded Stripe

Pattern; (3) the exact same horizontal banner beneath the Shaded Stripe Pattern with the exact

same recipe name in all lower case letters, in exactly the same font, color and size; (4) the exact

same recipe name (e.g., "beef stew bourguignon"); and (5) the exact same photograph of the

prepared dinner on the lower portion ofthe packaging, with the exact same description of the

product, in the exact same place, font, color and size. Defendants merely substituted a

photograph of another brunette woman in place of Chef Garten's photograph at the top of the

package and replaced the BAREFOOT CONTESSA brand name with CONTESSA CHEF

INSPIRED, using the same white cursive font for "Chef Inspired" as that used for the word "Ina"

on the Frozen Dinner Trade Dress. (See Ex. H.)

58. The side panels of the packages are likewise virtually indistinguishable.

Like the Frozen Dinner Trade Dress and the Food Product Trade Dress, the right side of the

Contessa Chef Inspired Package carries over the Shaded Stripe Pattern, the horizontal colored

banner with the recipe name in the same type and style as the front panel, and the photograph

17

that are featured on the front (Ex. I), and the left side features the nutritional panel surrounded by

the same Shaded Stripe Pattern (Ex. J).

59. The back panel ofthe Contessa Chef Inspired Package is also essentially

identical to the Frozen Dinner Trade Dress. Like the Frozen Dinner Trade Dress, the back panel

ofthe Contessa Chef Inspired Package features: (1) awhite box surrounded by the same Shaded

Stripe Pattern divided in half by a red line; (2) in the bottom portion of the white box, cooking

instructions and a photograph of the dinner being prepared in a saute pan identical to the

photographs used in the Frozen Dinner Trade Dress; (3) acolored banner with the recipe name in

white text in the top left hand corner of the white box, using the same font and lower case text;

and (4) the brand name in the top right corner ofthe white box in red lettering. (Ex. K.)

60. The back of the infringing Contessa Chef Inspired Package also includes

language identical or substantially similar to the quotes and tips used on the Frozen Dinner Trade

Dress, using the same fonts and colors. For example, the back panel of the BAREFOOT

CONTESSA "penne pasta with five cheeses" frozen dinner includes the following language:

"This grown-up Mac &Cheese is easy enough to make for your family but delicious enough to

serve to company" and "Even Better: Sprinkle with chopped fresh basil." The Contessa Chef

Inspired Package for "penne pasta with five cheeses" contains identical language in identical

fonts and colors. Instead of being "signed" with a dash with Chef Garten's name, the Contessa

Chef Inspired Package features adash followed by the word "Enjoy" using the same font as Chef

Garten's name, also inred. The phrase "Nothing tastes better than a freshly cooked dinner made

with great ingredients." on the back panel ofthe Contessa Chef Inspired Package is also copied

directly from the Frozen Dinner Trade Dress. (Ex. K.)

18

61. All of the photographs of food or ingredients used on the Contessa Chef

Inspired Package are identical to the photographs used in the Frozen Dinner Trade Dress.

62. Further, upon information and belief, Defendants are manufacturing their

CONTESSA CHEF INSPIRED line of frozen dinners using Chef Garten's proprietary recipes

that were provided to Contessa Premium in connection with the terminated license. Defendants'

unauthorized use of ChefGarten's recipes is not subject to the strictquality control standards and

approval requirements, including with respect to ingredient sourcing, prescribed in the License.

63. Defendants' use of the Frozen Dinner Trade Dress, the Food Product

Trade Dress and other Barefoot Contessa intellectual property, without Barefoot Contessa's

authorization or oversight, is causing irreparable harm to the extensive goodwill that has been

established in the BAREFOOT CONTESSA name, trademark, and other intellectual property,

and to Barefoot Contessa's reputation for high quality products.

64. Rather than destroying any items in its possession using the Barefoot

Contessa intellectual property as required under the Sell-Through Agreement, including Barefoot

Contessa's Frozen Dinner Trade Dress, copyrighted photographs, and recipes, Defendants

unlawfully used these items to misappropriate Barefoot Contessa's goodwill when the license

they requested was denied. Defendants' use of the Barefoot Contessa intellectual property is

clearly calculated to confuse consumers into believing thatBarefoot Contessa has manufactured,

authorized, endorsed, or sponsored the CONTESSA CHEF INSPIRED frozen dinners or that the

CONTESSA CHEF INSPIRED frozen dinners are affiliated or associated with Barefoot

Contessa, all in violation of Barefoot Contessa's intellectual property rights. Indeed, the

CONTESSA CHEF INSPIRED frozen dinners have caused actual confusion in the marketplace.

19

65. Defendants' use of the very same dinners previously manufactured under

the license with Barefoot Contessa, using, upon information and belief, Barefoot Contessa's

proprietary recipes, in conjunction with the Frozen Dinner Trade Dress suggests to consumers

that the license was never terminated and that Barefoot Contessa just made small tweaks to the

Licensed Package when nothing could be further from thetruth.

66. Notwithstanding that Defendants' sole right to use the CONTESSA

trademark is subject to the Settlement Agreement between Contessa Premium and Barefoot

Contessa, which prohibits any use of the CONTESSA mark in combination with any word or

design element that would be likely to create consumer confusion between Contessa Premium

and Chef Garten, upon information and belief, Defendants — in flagrant violation of the

Settlement Agreement — chose the very name of the product, "Contessa Chef Inspired,"

intentionally to create confusion and form an association in the consumer's mind between

Defendants' products and Chef Garten, the famous chef associated with Barefoot Contessa.

Simply put, Defendants helped themselves to the license that Barefoot Contessa emphatically

refused to grant them.

Defendants' Sale of BAREFOOT CONTESSA Products

67. In addition, Defendants are continuing to sell, and, upon information and

belief, to manufacture and distribute, counterfeit BAREFOOT CONTESSA frozen dinners inthe

Licensed Package, which prominently displays the BAREFOOT CONTESSA trademark and

other Barefoot Contessa intellectual property, despite the termination of the License and the

expiration of OFI's rights under the Sell-Through Agreement.

68. Despite the expiration of OFI's only rights to sell off existing inventory,

Defendants continue to offer products in the Licensed Package, purporting to be licensed

BAREFOOT CONTESSA frozen dinners, for sale to consumers in Florida and, upon

20

information and belief, nationally, in violation of the Sell-Through Agreement. Further, some of

these products bear sell-by dates in March and April 2016. (See Ex. L.) Because BAREFOOT

CONTESSA frozen dinners have a shelf-life of no more than eighteen months and the last

permissible date to manufacture BAREFOOT CONTESSA frozendinners under the License was

before May 1, 2014, the Marchand April sell-by dates make it clear that not only are Defendants

selling products in the Licensed Package after their right to do so has expired, but they also have

been manufacturing counterfeit BAREFOOT CONTESSA frozen dinners in the Licensed

Packagedespite the clear prohibition on manufacturing in the Sell-Through Agreement.

69. Moreover, the Licensed Package for BAREFOOT CONTESSA products

containing meat or poultry includeda seal from the U.S. Department of Agriculture ("U.S.D.A.")

with the plant number at which the product was produced. At least some of the products

currently being sold in the Licensed Package have a sticker placed over the original U.S.D.A.

seal and the packagebears a new plant number for a plant that is operated by a subsidiary of Red

Chamber, further indicating that Defendants have been manufacturing new inventory and selling

counterfeit BAREFOOT CONTESSA frozen dinners using the Licensed Package in direct

violation of the Sell-Through Agreement and Barefoot Contessa's intellectual property rights.

(See Ex. L.)

70. Defendants also continued to advertise the sale of frozen dinners in the

Licensed Package using the Barefoot Contessa intellectual property and Frozen Dinner Trade

Dress online at http://www.barefoot.contessa.com.

71. Defendants' continued advertising, manufacturing, distribution, and sale

of frozen dinners in the Licensed Package is a flagrant violation of the Sell-Through Agreement,

21

the License Agreement, the Settlement Agreement and Barefoot Contessa's intellectual property

rights.

Barefoot Contessa's Notice to Defendants of Their Infringement and Breach of Contract

72. Barefoot Contessa first learned of Defendants' unlawful activity on

February 4, 2015. By letter dated February 9, 2015, Barefoot Contessa asked Defendants

immediately to cease and desist from any further sale, distribution, importation or exportation,

manufacturing, marketing and/or advertising of any BAREFOOT CONTESSA products or any

other products that infringe the Barefoot Contessa intellectual property, including, without

limitation, any remaining Sell-Through Items, items sold using the Frozen Dinner Trade Dress,

and items sold using the BAREFOOT CONTESSA brand name, and to comply with Barefoot

Contessa's demands to remedy the infringement.

73. Other than taking down the website at http ://www.barefoot.contessa.com,

to date, Defendants have refused to comply with the rest of Barefoot Contessa's demands, and

Defendants' infringing conduct has not ceased.

74. Defendants are well aware of the goodwill represented and symbolized by

the Barefoot Contessa intellectual property and Barefoot Contessa's rights to that intellectual

property, and know that likely consumers of Defendants' Infringing Products have long

recognized and relied upon the Barefoot Contessa intellectual property to identify products and

services associated with or sponsored by Barefoot Contessa. Indeed, Defendants have

recognized the value of the Barefoot Contessa intellectual property by engaging Barefoot

Contessa, unsuccessfully, in discussions to obtain a new license to use the Barefoot Contessa

intellectual property in connection with Defendants' frozen dinners.

75. Defendants' brazen copying of the Frozen Dinner Trade Dress and use of

the Barefoot Contessa intellectual property on its packaging and in associated marketing or

22

advertising, as well as its manufacturing and sale offrozen dinners in the Licensed Package, is a

clear and deliberate attempt to trade upon Barefoot Contessa's valuable reputation and goodwill,

absent any authorization from Barefoot Contessa. Indeed, as Barefoot Contessa's ex-licensee, a

likelihood of confusion of Defendants' products with the BAREFOOT CONTESSA brand, due

to Defendants' wholesale copying, in bad faith, of the Frozen Dinner Trade Dress, can be

presumed.

76. A significant proportion of the consuming public is likely to be confused

by Defendants' use ofthe Barefoot Contessa intellectual property in the manner described above

and is likely to believe that the Infringing Products derive from Barefoot Contessa or are

associated or affiliatedwith, and/or endorsedor sponsored by, Barefoot Contessa.

Barefoot Contessa's Injury

77. As a direct and proximate result of Defendants' unauthorized conduct,

Barefoot Contessa has been substantially damaged in, among other ways, creation of confusion

among consumers as to Barefoot Contessa's association or connection with or endorsement or

authorization of Defendants and the Infringing Products, and the dilution of the Barefoot

Contessa intellectual property, including the Food Product Trade Dress, the Frozen Dinner Trade

Dress, the famous BAREFOOT CONTESSA and INA GARTEN trademarks, the copyrights in

the photographs used in connection with the Frozen Dinner Trade Dress, and Chef Garten's

name and likeness and the BAREFOOT CONTESSA name, which has come to identify Chef

Garten. Further, Defendants' conduct is indirect violation of its obligations under the Settlement

Agreement, License Agreement, and Sell-Through Agreement.

78. As a result of Defendants' misappropriation of the Barefoot Contessa

intellectual property, Defendants have caused, and will continue to cause, irreparable injury to

23

Barefoot Contessa and have substantially damaged the value of the Barefoot Contessa

intellectual property.

79. In addition, Defendants have enriched themselves at Barefoot Contessa's

expense by advertising and selling a product that appropriates and exploits Barefoot Contessa's

intellectual property as well as Barefoot Contessa's goodwill and reputation. Among the benefits

Defendants have gained from this conduct are increased revenues from the sale of their

Infringing Products using the Barefoot Contessa intellectual property, through consumer

confusion as to the source of the products or their association or connection with or endorsement

of or authorization by Barefoot Contessa, and increased goodwill.

FIRST CLAIM

(Trade Dress Infringement Under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a))

80. Barefoot Contessa repeats and realleges paragraphs 1 through 79 above.

81. Barefoot Contessa owns the Frozen Dinner Trade Dress and the Food

Product Trade Dress, which are non-functional, inherently distinctive, and also have acquired

substantial secondary meaning in the marketplace by virtue of their use by Barefoot Contessa

and its licensees in connection with the promotion and sale of goods and services, and have

developed valuable goodwill associated therewith.

82. Upon information and belief, Defendants have used, are using, and/or

imminently intend to use a trade dress in interstate commerce, that is identical and/or confusingly

similar to the Frozen Dinner Trade Dress and the Food Product Trade Dress without the consent

of Barefoot Contessa, on Defendants' products or in connection with the advertising and

promotion of such goods.

83. Defendants' conduct as alleged above constitutes the unauthorized use in

commerce of the Frozen Dinner Trade Dress and the Food Product Trade Dress in connection

24

with the Infringing Products and has caused and/or is likely to cause confusion, mistake, or

deception of the public as to (i) the affiliation, connection, and/or association of Barefoot

Contessa with Defendants and the Infringing Products; (ii) the origin of the Infringing Products;

and/or (iii) the sponsorship, endorsement, or approval of the Infringing Products by Barefoot

Contessa, in each case in violation of Section 43(a)of the Lanham Act, 15 U.S.C. § 1125(a).

84. Upon information and belief, Defendants' actions were deliberate, willful,

and in conscious disregard of Barefoot Contessa's rights.

85. Defendants' conduct as alleged above has caused and/or will cause

Barefoot Contessato suffer injury, for which it has no adequate remedy at law.

86. Pursuant to 15 U.S.C. § 1117, Barefoot Contessa is entitled to injunctive

relief, actual damages in an amount to be determined at trial, to have such damages trebled, to

Defendants' profits, and to the costs of this action and to attorneys' fees.

SECOND CLAIM

(Trademark Infringement Under the Section 32 of the Lanham Act, 15 U.S.C. § 1114(1))


88. Barefoot Contessa owns the BAREFOOT CONTESSA registered

trademark.

89. The BAREFOOT CONTESSA registered mark is valid and subsisting.


imminently intend to use the BAREFOOT CONTESSA registered mark in interstate commerce,

without the consent of Barefoot Contessa, in connection with the sale of goods and/or in

connection with the advertising and promotion of such goods.


commerce in the United States of the BAREFOOT CONTESSA registered mark in connection

25

with the sale, offering for sale, distribution, or advertising of its products, and has caused and/or

is likely to cause confusion or mistake or deception of the public as to (i) the affiliation,

connection, and/or association with Barefoot Contessa of the Infringing Products; (ii) the origin

of the Infringing Products; and/or (iii) the sponsorship, endorsement, or approval of the

Infringing Products by Barefoot Contessa, in each case a violation of Section 32 of the Lanham

Act, 15 U.S.C. §1114(1).


and in consciousdisregard of Barefoot Contessa's rights.

93. Defendants' conduct as alleged above has caused and/or will imminently

cause Barefoot Contessa to suffer irreparable harm, for which it has no adequate remedy at law.



Defendants' profits, andto the costsof this action andto attorneys' fees.

THIRD CLAIM

(Unfair Competition and False Designation of OriginUnder Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a))


96. In addition to the registered BAREFOOT CONTESSA mark, Barefoot

Contessa owns valuable common law trademark rights in the BAREFOOT CONTESSA

trademark, which, by virtue of its use by Barefoot Contessa, in connection with the promotion

and sale of goods and services, has gained widespread consumer recognition, and has developed

valuable goodwill associated therewith.


imminently intend to use the BAREFOOT CONTESSA mark in interstate commerce, without

26

the consent of Barefoot Contessa, to identify Defendants' goods and/or in connection with the

advertising and promotion of such goods.


commerceof the BAREFOOT CONTESSA mark in connection with the Infringing Products and

has caused and/or is likely to cause confusion, mistake, or deception of the public as to (i) the

affiliation, connection, and/or association of Barefoot Contessa with Defendants and the

Infringing Products; (ii) the origin of the Infringing Products; and/or (iii) the sponsorship,

endorsement, or approval of the Infringing Products by Barefoot Contessa, in each case in

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




Barefoot Contessa to suffer injury, for which it has no adequate remedy at law.



Defendants' profits, and to the costs of this action and to attorneys' fees.

FOURTH CLAIM

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


103. The Frozen Dinner Trade Dress, the Food Product Trade Dress and the

BAREFOOT CONTESSA trademark, are famous and distinctive within the meaning of Section

43(c) of the Lanham Act, 15 U.S.C. § 1125(c), and Barefoot Contessa has built up valuable

goodwill in the Frozen Dinner Trade Dress, the Food Product Trade Dress, and the BAREFOOT

CONTESSA trademark. The Frozen Dinner Trade Dress, the Food Product Trade Dress, and the

27

BAREFOOT CONTESSA trademark have enjoyed such distinction and fame since long before

Defendants commenced unauthorized use of the Frozen Dinner Trade Dress, the Food Product

Trade Dress, and the BAREFOOT CONTESSA trademark.


intend to use the Frozen Dinner Trade Dress, the Food Product Trade Dress, and the

BAREFOOT CONTESSA trademark in interstate commerce in connection with the advertising

and promotion of goods and services sold or offered by Defendants.


Trade Dress, and the BAREFOOT CONTESSA trademark has caused actual harm and is likely

to cause harm to Barefoot Contessa by diluting and weakening the unique and distinctive

significance and quality of the Frozen Dinner Trade Dress, the Food Product Trade Dress, and

the BAREFOOT CONTESSA trademark to identify Barefoot Contessa's goods and services and

by tarnishing the Frozen Dinner Trade Dress, the Food Product Trade Dress, and the

BAREFOOT CONTESSA name and trademark in the minds of consumers.

106. By reason of the foregoing, Defendants have violated Section 43(c) of the

Lanham Act, 15 U.S.C. § 1125(c).







Defendants' profits, to the costs of this action, and to attorneys' fees.

28

FIFTH CLAIM

(Common Law Trademark Infringement)

110. BarefootContessarepeats and realleges paragraphs 1 through 109above.

111. Defendants' conduct as alleged above constitutes infringement and

misappropriation of the BAREFOOT CONTESSA trademark in violation of Barefoot Contessa's

rights under common law and in equity.




BarefootContessa to suffer injury, for which it has no adequate remedy at law.

114. Barefoot Contessa is entitled to injunctive relief, actual damages in an

amount to be determined at trial, to have such damages trebled, to Defendants' profits, to the

costs of this action, and to attorneys' fees.

SIXTH CLAIM

(Common Law Unfair Competition)


116. Upon information and belief, by using the Frozen Dinner Trade Dress, the

Food Product Trade Dress, and the BAREFOOT CONTESSA trademark in commerce without

authorization by Barefoot Contessa, Defendants knowingly and willfully are confusing

consumers by creating the false and misleading impression that Defendants and their Infringing

Products are related to, affiliated with, or connected with Barefoot Contessa.

117. Upon information and belief, Defendants' deliberate use of the Frozen

Dinner Trade Dress, the Food Product Trade Dress, and the BAREFOOT CONTESSA

trademark in connection with the marketing, advertising, promotion, and/or distribution of its

Infringing Products was done in bad faith with the intent to unfairly benefit from the expense,

29

time, effort, and labor expended by Barefoot Contessa in developing and promoting its

BAREFOOT CONTESSA mark and products.

118. By reason of the foregoing, Defendants' conduct constitutes willful and

deliberate false designation of origin, false description and representation, and unfair

competition, in violationof BarefootContessa's rights under common law and in equity.




BarefootContessa to suffer injury, for which it has no adequate remedy at law.

121. Furthermore, Barefoot Contessa is entitled to injunctive relief, actual

damages in an amount to be determined at trial and to Defendants' profits attributable to their

unlawful conduct.

SEVENTH CLAIM

(Trademark and Trade Dress Dilution Under Section 360-1of the New York General Business Law)

122. Barefoot Contessa repeats and realleges the allegations of paragraphs 1

through 121 above.

123. The Frozen Dinner Trade Dress, the Food Product Trade Dress, and the

BAREFOOT CONTESSA trademark are famous and distinctive, and Barefoot Contessa has built

up valuable goodwill in the Frozen Dinner Trade Dress, the Food Product Trade Dress, and the

BAREFOOT CONTESSA trademark. The Frozen Dinner Trade Dress, the Food Product Trade

Dress, and the BAREFOOT CONTESSA trademark have enjoyed such distinction and fame

since long before Defendants commenced use of the Frozen Dinner Trade Dress, the Food

Product Trade Dress, and the BAREFOOT CONTESSA trademark.

30


intend to use the Frozen Dinner Trade Dress, the Food Product Trade Dress, and the

BAREFOOT CONTESSA trademark in commerce in connection with the advertising and

promotion of goods and services sold or offered by Defendants.


Trade Dress, and the BAREFOOT CONTESSA trademark, has caused actual harm and is likely

to cause harm to Barefoot Contessa by diluting and weakening the unique and distinctive

significance and quality of the Frozen Dinner Trade Dress, the Food Product Trade Dress, and

the BAREFOOT CONTESSA trademark to identify Barefoot Contessa's goods and services and

by tarnishing Barefoot Contessa's name and trademark in the minds of consumers.

126. By reason of the foregoing, Defendants have violated Section 360-1of the

General Business Law of the State ofNew York.





129. Barefoot Contessa is entitled to injunctive relief.

EIGHTH CLAIM

(Breach of the Settlement Agreement against All Defendants)


through 129 above.

131. In December 2011, Barefoot Contessa and Contessa Premium entered into

the Settlement Agreement, pursuant to which the parties agreed not to use the other's trademarks

in a confusing manner.

31

132. Barefoot Contessa has performed all of the conditions, covenants, and

promises required by it to be performed in accordance with the terms and conditions of the

Settlement Agreement.

133. Pursuant to Sections 3(e) and 8 of the Settlement Agreement, Contessa

Premium is prohibited from using the CONTESSA mark in combination with any word or design

element that would be likely to create consumer confusion between Contessa Premium and Chef

Garten. As a successor, assign, and/or affiliate of Contessa Premium, OFI, Red Chamber, and

Aqua Star are likewise bound by those restrictions pursuant to Section 11(d).

134. Defendants breached their respective obligations under the Settlement

Agreement by using the CONTESSA mark in connection with the Frozen Dinner Trade Dress

and the Food Product Trade Dress and by using the CONTESSA mark in connection with the

product name "Contessa Chef Inspired," which has created or is likely to create consumer

confusion between Contessa Premium and Barefoot Contessa.

135. Barefoot Contessa has suffered, and continues to suffer, significant

damages as a result of Defendants' breach of contract.



137. Barefoot Contessa gave Defendants notice of their infringing conduct on

February 9,2015.

NINTH CLAIM

(Breach of the License against Contessa Premium)


through 137 above.

32

139. In June 2012, Barefoot Contessa and Contessa Premium entered into the

License Agreement pursuant to which Barefoot Contessa granted Contessa Premium the right to

use certain of its intellectual property, including the BAREFOOT CONTESSA mark in

connection with the manufacture, distribution, and sale of frozen dinners under the BAREFOOT

CONTESSA brand.


promises required by it to be performed in accordance with the terms and conditions of the

License Agreement.

141. Pursuant to the License, upon termination of the agreement, Contessa

Premium was obligated to stop manufacturing all products under the License, to cease all use of

any Barefoot Contessa intellectual property, and to promptly destroy and cause its customers to

destroy any Sell-Through Items after their right to sell those items expired.

142. Contessa Premium breached its obligations under the License by:

(a) upon information and belief, continuing to manufacture

BAREFOOT CONTESSA frozen dinners following the termination of the License;

(b) continuing to use Barefoot Contessa intellectual property following

the termination of the License, including their use of the Frozen Dinner Trade Dress and the

Food Product Trade Dress in connection with the Infringing Products and the Contessa Premium

website; and

(c) continuing to sell and/or failing to recall and destroy all Sell-

Through Items after expiration of their limited rights.


damages as a result of Contessa Premium's breach of contract.

33

144. Upon information and belief, Contessa Premium's actions were deliberate,

willful, and in conscious disregard of Barefoot Contessa's rights.

145. Barefoot Contessa gave Contessa Premium notice of its infringing

conduct on February 9,2015.

TENTH CLAIM

(Breach of the Sell-Through Agreement against OFI)


through 145 above.

147. In May 2014, Barefoot Contessa and OFI entered into the Sell-Through

Agreement, pursuant to which Barefoot Contessa granted OFI the limited right to sell then-

existing inventory for a limited time after the License was terminated.


promises required by it to be performed in accordance with the terms and conditions of the Sell-

Through Agreement.

149. Pursuant to the Sell-Through Agreement, OFI was obligated to stop

manufacturing all products under the License, to cease all use of any Barefoot Contessa

intellectual property, to promptly destroy and cause its customers to destroy any Sell-Through

Items after their right to sell those items expired, and to promptly destroy any items, including

packaging, that use Barefoot Contessa intellectual property.

150. OFI breached its respective obligations under the Sell-Through Agreement

by:

(a) upon information and belief, continuing to manufacture

BAREFOOT CONTESSA frozen dinners following the termination of the License;

34

(b) upon information and belief, failing to destroy items, including

packaging, that use Barefoot Contessa intellectual property;

(c) continuing to use Barefoot Contessa intellectual property following

the termination of the License, including their use of the Frozen Dinner Trade Dress and the

Food Product Trade Dress in connection with the Infringing Products and the Contessa Premium

website; and

(d) continuing to sell and/or failing to recall and destroy all Sell-

Through Items after expiration of their limited rights.


damages as a result of OFI's breach of contract.

152. Upon information and belief, OFI's actions were deliberate, willful, and in

conscious disregard of Barefoot Contessa's rights.

153. Barefoot Contessa gave OFI notice of its infringing conduct on February

9,2015.

ELEVENTH CLAIM

(Right of Publicity Under New York Civil Rights Law § 51)

154. Barefoot Contessa repeats and realleges the allegations of paragraph 1

through 154 above.


intend to use Chef Garten's name, picture, and likeness, as well as the Barefoot Contessa name,

which has come to refer to Chef Garten, within New York state for advertising purposes and/or

for the purposes of trade, without Chef Garten's written consent.

156. By reason of the foregoing, Defendants have violated Section 51 of the

New York Civil Rights Law.

35

157. Defendants' conduct as alleged above has caused and/or will cause Chef

Garten tosuffer injury, for which she has no adequate remedy at law.

158. Chef Garten is entitled to actual and exemplary damages in an amount to

be determined at trial.

TWELFTH CLAIM

(Unjust Enrichment)

159. Barefoot Contessa repeats and realleges the allegations of paragraph 1

through 159 above.

160. By the acts alleged above, Defendants have been unjustly enriched by

their unlawful conduct at the expense of Barefoot Contessa. Defendants' acts have unjustly

enriched and wrongfully benefited Defendants, in an amount to be determined at trial and to

which Barefoot Contessa is rightfully entitled.

PRAYER FOR RELIEF

WHEREFORE, Barefoot Contessa demands judgment against Defendants asfollows:

1. Preliminarily and permanently enjoining and restraining Defendants, their

officers, agents, servants, employees, attorneys, and all persons acting in concert or participation

with them, or having actual notice of this Order, from:

(a) imitating, copying, or making unauthorized use of the Barefoot

Contessa intellectual property, including, without limitation, the Food Product Trade Dress, the

Frozen Dinner Trade Dress, the famous BAREFOOT CONTESSA and INA GARTEN

trademarks, the copyrights in the photographs used in connection with the Frozen Dinner Trade

Dress, and Chef Garten's name and likeness and the Barefoot Contessa name, which has come to

identify ChefGarten, or anyvariation thereof;

36

(b) manufacturing, producing, distributing, advertising, promoting,

selling, or offering for sale the Infringing Products and any food product bearing the Barefoot

Contessa intellectual property including, without limitation, the famous BAREFOOT

CONTESSA and INA GARTEN trademarks, the Food Product Trade Dress, the Frozen Dinner

Trade Dress, the copyrights in the photographs used in connection with the Frozen Dinner Trade

Dress, and Chef Garten's name and likeness and the Barefoot Contessa name, which has come to

identify Chef Garten, orany design confusingly similar thereto;

(c) manufacturing, producing, distributing, advertising, promoting,

selling, or offering for sale any food product using the Barefoot Contessa recipes in connection

with the CONTESSA mark;

(d) using the Barefoot Contessa intellectual property, including,

without limitation, the Food Product Trade Dress, the Frozen Dinner Trade Dress, the famous

BAREFOOT CONTESSA and INA GARTEN trademarks, the copyrights in the photographs

used in connection with the Frozen Dinner Trade Dress, and Chef Garten's name and likeness

and the Barefoot Contessa name, which has come to identify ChefGarten, or any mark ordesign

confusingly similar thereto in connection with the promotion, advertisement, display, sale,

offering for sale, or distribution of anyfood product;

(e) making any designation of origin, descriptions, or representations

indicating or suggesting that Barefoot Contessa is the source or sponsor of, or in any way has

endorsed or is affiliated with Defendants, or any food product manufactured, distributed,

promoted, marketed, or sold by Defendants;

(f) engaging in any conduct that tends to dilute, tarnish, or blur the

distinctive quality of the Barefoot Contessa intellectual property, including, without limitation,

37

the Food Product Trade Dress, the Frozen Dinner Trade Dress, the famous BAREFOOT

CONTESSA and INA GARTEN trademarks, the copyrights in the photographs used in

connection with the Frozen Dinner Trade Dress, and Chef Garten's name and likeness and the

Barefoot Contessa name, which has come to identify Chef Garten;

(g) aiding or abetting any party in the commission of the acts specified

in subparagraphs (a)-(f) above;

2. Ordering Defendants to recall and destroy all existing inventory of the

Infringing Products and any associated advertising, promotional, marketing, or other materials

that include Barefoot Contessa intellectual property, including, without limitation, the Food

Product Trade Dress, the Frozen Dinner Trade Dress, the famous BAREFOOT CONTESSA and

INA GARTEN trademarks, the copyrights in the photographs used in connection with the Frozen

Dinner Trade Dress, and Chef Garten's name and likeness and the Barefoot Contessa name,

which has come to identify Chef Garten;

3. Ordering Defendants to account to Barefoot Contessa for all gains, profits,

savings, and advantages obtained by it as a result of its unlawful conduct, and awarding to

Barefoot Contessa restitution in the amount of all such gains, profits, savings, and advantages;

4. Awarding to Barefoot Contessa damages resulting from Defendant's

unlawful conduct, including the amount by which Defendants were unjustly enriched, in an

amount to be determined at trial and trebled pursuant to 15 U.S.C. § 1117;

5. Awarding to Barefoot Contessa Defendant's profits attributable to its

unlawful conduct, in an amount to be determined at trial and increased in the Court's discretion

pursuant to 15 U.S.C. § 1117;

38

6. Awarding to Barefoot Contessa reasonable attorneys' fees, together with

the costs and disbursements of this action;

7. Awarding Barefoot Contessa punitive damages in an amount sufficient to

deter other and future similar conduct by Defendants, in view of Defendants' wanton and

deliberate unlawful acts; and

8. Granting Barefoot Contessa such other and further relief as the Court

deems just and proper.

DEMAND FOR JURY TRIAL

Barefoot Contessa hereby demands a trial by jury of all issues so triable.

Dated: New York, New YorkFebruary 17, 2015

PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP

Lynn B. Bayard (lbayara^paulweiSsTCQm)Aidan Synnott ([email protected])Darren W. Johnson ([email protected])Rachale C. Miller ([email protected])

1285 Avenue of the Americas

New York, New York 10019-6064(212)373-3000

Attorneys for Plaintiffs Barefoot Contessa Pantry, LLC, InaGarten, and Ina Garten, LLC

39

Int Cls.: 29, 30, 31, 32 and 35

Prior U.S. Cls.: 1, 45, 46, 48,100,101 and 102Reg. No. 2,892,226

United States Patent and Trademark Office Registered Oct 12,2004

TRADEMARKSERVICE MARK

PRINCIPAL REGISTER

BAREFOOT CONTESSA

GARTEN FOOD CORPORATION (NEW YORKCORPORATION)

46 NEWTOWN LANEEAST HAMPTON, NY 11937

FOR: DIPS, NAMELY, VEGETABLE. YOGURT.FISH AND HERB BASED DIPS; HUMMUS, CHILI.STEWS RIBOLLITA, SOUPS, NAMELY, GAZPACHOAND CHOWDERS; SALADS EXCEPT MACARONI,RICE AND PASTA; CRANBERRY SAUCE; APPLESAUCE, DRIED FRUITS, PROCESSED NUTS, CANDIED NUTS, SNACK MIX CONSISTING PRIMARILY OF PROCESSED FRUITS, PROCESSED NUTSAND/OR RAISINS; PROCESSED PEAS WITH WA-SABI FLAVORING, IN CLASS 29 (U.S. CL. 46).

FIRST USE 0-0-1979; IN COMMERCE 0-0-1979.

FOR: VEGETABLE STRUDEL, VEGETABLE COBBLERS, SPRING ROLLS, COFFEE. BREADCRUMBS, CROUTONS, GRANOLA, CAKES, NAMELY SOUR CREAM COFFEE CAKE; CANDY, NAMELY. STRAWBERRY FLAVORED LACES;QUESADILLA, SALSA, IN CLASS 30 (U.S. CL. 46).


FOR: FRESH VEGETABLES AND FRESH NUTS,IN CLASS 31 (U.S. CLS. 1 AND 46).


FOR: ORANGE JUICE, GRAPEFRUIT JUICE,LEMONADE; NON-ALCOHOLIC COCKTAILMIXES, IN CLASS32 (U.S. CLS. 45,46 AND 48).


FOR: RETAIL STORE SERVICES FEATURINGGOURMET FOODS AND BOOKS, IN CLASS 35 (U.S.CLS. 100, 101 AND 102).


THE ENGLISH TRANSLATION OF "CONTESSA"IS "COUNTESS".

SER. NO. 76-172,249, FILED 11-22-2000.

ELIZABETH HUGHITT, EXAMINING ATTORNEY

04/01/2008 TUE 11:31. FAX 5164311127 Galgano h Associates 0002/006

Fonn PTO-1594 (Rev. 07/05)OMB Collectton 0651-0027 (exp. 6/30/2008)

Docket #: 1442-22

U.S. DEPARTMENT OF COMMERCEUnited States Patent and Trademark Office

RECORDATION FORM COVER SHEET

TRADEMARKS ONLYTo the Director of the U. S. Patent and Trademark Office: Please record the attached documente or the new addresses) below.

1. Name of conveying party(ies):

GARTEN FOOD CORPORATION

• Indlvidual(s) • Association

LJ General Partnership L_J Limited PartnershipH Corporation- State: New ¥ork• Other

Citizenship (see guidelines)

Additional names of conveying parlies attached? fj"Yes {7|no

3. Nature of conveyance )/Executlon Date(s):

Execution Date(s) March 19.2005

171 Assignment • Merger

I ISecurity Agreement

• OtherLZ1 Change ofName

2. Name and address of receiving party(les)I I Yes

Additional names, addresses, orcitizenship attached? r^i No

Name: INA GARTEN LLC

Internal

Address:

Street Address: 46 Newtown Lane

City: East Hampton

State: New York

Country: U.S. Zip: 11937

I | Association Citizenship

I IGeneral Partnership Citizenship.I I Limited Partnership Citizenship.I ICorporation Citizenship[x]OtherLLC (NY) citizenship

Ifassignee is not domiciled in the United States, a domesticrepresentative designation isattached: LJ Yes • No

(Designationsmust be a separate document fromassignment)

4. Application number(s) or registration number(s) and identification or description of the Trademark,B. Trademark Registration No.(s)2,692,226 3,216,738 3,315,273

A. Trademark Application No.(s)

Additional sheet(s) attached? • Yes f/l NoC. identification or Description of Trademark(s) (and Filing Date ifApplication or Registration Number Is unknown):BAREFOOT CONTESSA BAREFOOT CONTESSA BAREFOOT CONTESSA PANTRY

5. Name & address of party to whom correspondenceconcerning document should be mailed:

Name: Thomas M. Galoano. GALGANO A ASSOCIATES. PLLC

Internal Address:

Street Address: 2Q w, Park Avflnim, Sulfa 204

City: Long Beach

State: n,sw York

Phone Number:5i6-431-Ii77

Fax Number: si&431--|127

Email Address: ttngaJs

Zip:11561

Name of Person Signing

6. Total number of applications andregistrations involved:

7. Total fee (37 CFR 2.6(b)(6) & 3.41) $ 90.00

[7] Authorized to be charged bycredit cardr"l Authorized to be charged to deposit accountLJ Enclosed

8. Payment Information:

a. Credit Card Last 4 Numbers 1QQ4Expiration Date a/OR

b. Deposit Account Number 50-3990

Authorized User Name Thomas M. Qnloann

Total number of pages includingcoversheet, attachments, and document:

Documents to be recorded (Including cover sheet) should be faxed to (571) 273-0140, or mailed to:Mail Stop Assignment Recordation Services, Director of the USPTO, P.O. Box 1450, Alexandria, VA 22313-1450

700366127TRADEMARK

REEL: 003750 FRAME: 0833

04/01/2008 TUB 11; 32 FAX 5164311127 Galgano & Associates 0P.?.3/°9J

ASSIGNMENT

WHEREAS, GARTEN FOOD CORPORATION, ("Assignor") a company

organized under the laws of the New York havinga business address of 46 Newtown

Lane, East Hampton, New York 11937, is the owner of the marks and U.S.

registrations set forth in attached SCHEDULE I, and is the owner of the marks and

foreign application and registration set forth in attached SCHEDULE II (collectively

'Marks1');

WHEREAS, INA GARTEN LLC ('Assignee"), a limited liability company

organizedunder the lawsof the New York having a business address of46 Newtown

Lane, East Hampton, New York 11937, is desirous of acquiring said Marks,

application and registrations;

NOW, THEREFORE, in consideration of the sum of one dollar ($1.00)

and/or other good and valuable consideration, receipt of which is hereby

acknowledged, Assignor, herebyassigns toAssignee, all right, titleand interest in and

to said Marks and the aforesaid application and registrations thereof as set forth in

SCHEDULES Iand II, togetherwith the goodwill of the business connected with the

use of and symbolized by said Marks, as fully and entirely as the same would have

been held and enjoyed by Assignor, if this assignment had not been made, together

with all claims for damages by reason of past infringement of said Marks, with the

right to sue for and collect the same for its own use and enjoyment, and for use and

enjoymentof its successors, assigns, or other legal representatives.

TRADEMARK

REEL: 003750 FRAME: 0834

• + • •04/01/2008 TUB 11:32 FAX 5164311127 Galgano & Associates 0004/006

)frExecuted at East Hampton, New York, and effective as of the // day of

March, 2008.

TMG/kddF:\G&b\1442\22\lrnassignrnent.wpd


By: fa-LlName:* ina GartenTitle: President

TRADEMARK

REEL: 003750 FRAME: 0835

04/01/2008 TUB 11:32 FAX 5164311127 Galgano 6. Associates

SCHEDULE I

U.S. REGISTRATIONS

Mark

BAREFOOT CONTESSA

BAREFOOT CONTESSA

BAREFOOT CONTESSA PANTRY

Regis'n Ifo,

2,892,226

3,216,738

3,315,273

Reals'n Date

10/12/2004

03/13/2007

10/23/2007

0005/006

RECORDED: 04/01/2008TRADEMARK

REEL: 003750 FRAME: 0836

Int. Cls.: 16,18,21, 25, 30, 35, 41 and 43

Prior U.S. Cls.: 1,2,3,5,13,22,23,29,30,33,37,38,39, 40,41, 46, 50,100,101,102 and 107 Reg ^ ^^United States Patent and Trademark Office Registered Mar. 13,2007

TRADEMARKSERVICE MARK

PRINCIPAL REGISTER

BAREFOOT CONTESSA

GARTEN FOOD CORPORATION (NEW YORKCORPORATION)

46 NEWTOWN LANEEAST HAMPTON, NY 11937

FOR: STATIONERY—NAMELY, NOTECARDS,AND RECIPE JOURNALS , IN CLASS 16 (U.S. CLS.2, 5, 22, 23, 29, 37, 38 AND 50).


FOR: CANVAS TOTE BAGS, IN CLASS 18 (U.S.CLS. 1, 2, 3, 22 AND 41).


FOR: MUGS. IN CLASS 21 (U.S. CLS. 2, 13, 23, 29,30, 33, 40 AND SO).


FOR: CLOTHING—NAMELY, TEE SHIRTS, CAPSAND COOKING APRONS, IN CLASS 25 (U.S. CLS. 22AND 39).


FOR: COFFEE, IN CLASS 30 (U.S. CL. 46).


FOR: ONLINE RETAIL STORE SERVICES FEATURING COOKBOOKS, RECIPES, STATIONERY,

JOURNALS, COFFEE, MUGS, CANVAS BAG, T-SHIRTS, PEPPERMILLS, ZESTER, AND/OR OTHERFOOD/COOKING RELATED MERCHANDISE, INCLASS 35 (U.S. CLS. 100, 101 AND 102).


FOR: ENTERTAINMENT SERVICES IN THENATURE OF ONGOING TELEVISION PROGRAMSIN THE FIELD OF FOOD AND COOKING, AND INTHE NATURE OF PROVIDING ONLINE INFORMATION SERVICES FEATURING INA GARTEN,HER TELEVISION PROGRAM, AND HER BOOKS,IN CLASS 41 (U.S. CLS. 100, 101 AND 107).


FOR: PROVIDING AN ONLINE DATA BASE INTHE FIELD OF RECIPES AND COOKING INFORMATION, IN CLASS 43 (U.S. CLS. 100AND 101).


THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PARTICULARFONT, STYLE, SIZE, OR COLOR.

OWNER OF U.S. REG. NO. 2,892,226.

SER. NO. 76-626,056, FILED 12-27-2004.

KATHERTNE CHANG, EXAMINING ATTORNEY

04/01/2008 TUE lis 31. FAX 5164311127 Galgano & ^sqciates 502/006

Fonn PTO-15P4 (Rev. 07/05)OMB Collection 0651-0027 (exp. 6/30/2008)

Docket §i 1442-22

U.S. DEPARTMENT OF COMMERCEUnited States Patent and Trademark Office

RECORDATION FORM COVER SHEET

TRADEMARKS ONLYTo the Director of the U. S. Patent and Trademark Office: Please record the attached documents or the new addresses) below.

1. Name of conveying party(ies):


• Indlvidual(s) • AssociationLJ General Partnership LJ Limited PartnershipH Corporation- State: New york• Other

Citizenship (see guidelines)

Additional names of conveying parties attached? PJYes [7] No

3. Nature of conveyance )/Executlon Date(s):

Execution Oate(s) March 19.2008

171 Assignment • Merger

I ISecurity Agreement

• OtherO Change ofName

2. Name and address of receiving party(les) _ ^I I Yes

Additional names, addresses, orcitizenship attached? ra ^

Name; INAGARTEN LLC

Internal

Address:

Street Address: 46 Newtown Lane

City: East Hampton

State: New York

Country: U.S. ZIP: 11937

I | Association Citizenship

I IGeneral Partnership Citizenship.I I Limited Partnership Citizenship.[ )Corporation Citizenship[xjOtherLLC (NY) Citizenship __

Ifassignee is not domiciled in the United States, a domesticrepresentative designation isattached: LJ Yes • No

(Designations must be a separate document from assignment)

4. Application numbers) or registration number(s) and Identification or description of the TrademarkB. Trademark Registration No.(s)2,692,226 3,216,738 3,315,273

A. Trademark Application No.(s)

Additional sheet(s) attached? f~] Yes f/l NoC. Identification or Description of Trademark(e)(and Filing Date ifApplication or Registration Number is unknown):BAREFOOT CONTESSA BAREFOOT CONTESSA BAREFOOT CONTESSA PANTRY

5. Name & address of party to whom correspondenceconcerning document should be mailed:

Name: Thomas M. Galoano. GALGANO & ASSOCIATES. PLLC

Internal Address: ___

Street Address: pq w. park Avamm. suite prut

City: Long Baaoh

Stat9:jNflw.YorK.

Phone Number: 5)5-431 -1177

Fax Number: 516^431-1127

EmailAddress: tcngals

Zip: 11561

Name of Person Signing

6. Total number of applications andregistrations involved:

7. Total fee (37 CFR 2.6(b)(8) & 3.41) 8 90.00

[7] Authorized to becharged bycredit card| I Authorized to becharged todeposit accountL_l Enclosed

6. Payment Information:

a. Credit Card Last 4 Numbers 1QQ4Expiration Date a/oa

b. Deposit Account Number 60-3990

Authorized User Name Thomas M. flnlqano

Total number of pages includingcoversheet, attachments, and document:

Documents to be recorded (including cover sheet) should be taxed to (571) 273-0140, or mailed to:Mail Stop Assignment Recordation Services, Director Of the USPTO, P.O. Box 1450, Alexandria, VA 22313-1450

700366127TRADEMARK

REEL: 003750 FRAME: 0833

04/01/2008 TUE 11:32 FAX 5164311127 Galgano & Associates ®9J3/lP.f

ASSIGNMENT

WHEREAS, GARTEN FOOD CORPORATION, ("Assignor") a company

organized under the laws of the New York having a business address of 46 Newtown

Lane, East Hampton, New York 11937, is the owner of the marks and U.S.

registrations set forth in attached SCHEDULE I, and is the owner of the marks and

foreign application and registration set forth in attached SCHEDULE II (collectively

"Marks");

WHEREAS, INA GARTEN LLC ("Assignee"), a limited liabilitycompany

organized under the laws of the New York having a business address of 46 Newtown

Lane, East Hampton, New York 11937, is desirous of acquiring said Marks,

application and registrations;

NOW, THEREFORE, in consideration of the sum of one dollar ($1.00)

and/or other good and valuable consideration, receipt of which is hereby

acknowledged, Assignor, hereby assigns to Assignee, all right, title and interest inand

to said Marks and the aforesaid application and registrations thereof as set forth in

SCHEDULES I and II, together with the goodwill of the business connected with the

use of and symbolized by said Marks, as fully and entirely as the same would have

been held and enjoyed by Assignor, ifthis assignment had not been made, together

with all claims for damages by reason of past infringement of said Marks, with the

right to sue for and collect the same for its own use and enjoyment, and for use and

enjoyment of its successors, assigns, or other legal representatives.

TRADEMARK

REEL: 003750 FRAME: 0834

04/01/2008 TUE 11:32 FAX 5164311127 Galgano & Associates

Executed at East Hampton, New York, and effective as

March, 2008.

0004/006

14fcof the // day of


TMG/kddF:\G&b\1442\22\trnassignment.wpcl

Name:* Ina Garten

Title: President

TRADEMARK

REEL: 003750 FRAME: 0835

04/01/2008 TUE 11:32 FAX 5164311127 Galgano 6. Associates

SCHEDULE[

U.S. REGISTRATIONS

Mark

BAREFOOT CONTESSA

BAREFOOT CONTESSA

BAREFOOT CONTESSA PANTRY

Regis'n Nq,

2,892,226

3,216,738

3,315,273

Regis'n Date

10/12/2004

03/13/2007

10/23/2007

0005/006

RECORDED: 04/01/2008TRADEMARK

REEL: 003750 FRAME: 0836

^iteto states of ®mee,tJiMV*' Wnim &mz* patent atrtr qtra&etnartt Office ^tf

BAREFOOT CONTESSA

Reg. No. 4,203,987 ina garten, llc (new york limited liability company)46 NEWTOWN LANE

Registered Sep. 11,2012 east hampton.ny 11937

Int. Cls.: 29 and 30

TRADEMARK

PRINCIPAL REGISTER

Director of the United Smie-i Pnlent und Trademark Office

FOR: JAMS; CURDS; FRUIT PRESERVES, IN CLASS 29 (U.S. CL. 46).


FOR: MIXES FOR BAKERY GOODS, CAKE MIXES, COOKIE MIXES; FROSTING MIXES;ICING MIXES; PANCAKE MIXES; WAFFLE MIXES; MUFFIN MIXES; MARSHMALLOWMIXES; COFFEE; CHOCOLATE; HOT CHOCOLATE; FLAVORING SYRUPS; TOPPINGSYRUPS, IN CLASS 30 (U.S. CL. 46).


THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PAR

TICULAR FONT, STYLE, SIZE, OR COLOR.

OWNER OF U.S. REG. NOS. 2,892,226 AND 3,216,738.

SER. NO. 77-550,245, FILED 8-19-2008.

KEVIN DINALLO, EXAMINING ATTORNEY

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beef stew bourguignon

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Rich beefstew with carrots,pearl onions and mushroomsin a Burgundy wine sauce

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Nutrition Facts

Serving Size'/ipackageServings Per Container

WithSauc* WWiotrl Saw*

312g|11oz| 184g(6.5oz)2 2

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Catories fromFat

270 140

80 45

ani m»»* Bill Mm*

Total Fat

SaturatedFat

Trans Fat

Cholesterol

toeHum

TMrrf CwtMhrent*

9g 14% 59 «%

3.5g 1»% 15g t%

09 0945mg 15% «0mg 11%

1340mg H% 450mg~'t«%20g 7% 9g J%

3g 11% 2g 1%49 19

Dietary Fiber

Sugars

«9 149

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cam. ton ixb

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CMHW Ur<m 30OmB SomeSodun UBSi* 3.409mg Z.rCwgbWCMKftiMt 300p 3?SoMsyFtw »o 30g

VitwwiA 80% VtaMlA 00%

VBaminC 10% WttmiriC 0%

Calcium 4% Cataum 4%

Iron 35% taw 10%

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COmESSA PRBUM noos.SMtW, WA W121 USAForcjuasdom or cnmWRIs •boul Bis product.plsaw kaep packageat proof o( purchaseMidwriteto20251st A«e. Sunt 200. Same. W» 96121 USA

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OONTESSA


Penne pasta with tomatoes, igorgonzola,fontina, ]and Romano cheese

GOMTESSA


Nutrition Facts

SewingSizeVipackageSewingsPar Container

WrthSauca Without Sauce

3128(1102) 205g(7.202)2 2

Caeariae

Calories (Tom Fat

640 400

320 110

Odajrtaiya' aaai aatar

Tatalfal

Saturated Fat

Trans Fat

36g H% 12g 1t%21g 100% 7g 15%

Og Og

110mg »?% 30mg 10%

940mg 30% 540mg 11%

HeM CaiawhyaVlaa

Dietary Flier

Sugars

59g S»% 54g 11%

4g 11% 4g 10%

•0 3022fl 18g

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VtarenA 15% WarninA 8%

WamaiC 15% VUminC 0%

Caeun 35% Calcium 30%

ton 20% Iron 15%

Pmm Paafc (WMt<. OurumWheat Stmohna ltiifK*»»0i»»TmiTW(fwn»aSuHaH|a)«BV)tommsi1ttacm.nufi^ FofcfeidH,Salt].

•mm (Dtm (PntBurtiad Cream,WaVCarraqannan], Groundtomatofhmatoaa.TomatoPuree,St*. Mnc Acd,Wcamatoru^.Wal*. RomanoOiaeaefPartnmud IW-StoraMM.GMaae Ciitont Sat, EtvpimJ. UnaaiadMM. Anita ChaeseFmtam&m1*f*m#tMmtyVmtqm,$UMm

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PMDUCEO AND fHSTRPWTEOlY

contessa premium foods,SMttfa),WAW121USA.for Quaatjomorammmtii about tat product.

2025 1st Aw. State 200; Seattle. ** 98121 USA

Barefoot Contessa

barefooteonfossa

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feef stew with carrots,pearlOnionsand mushroomsin a Burgundywine sauce

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barefooteontessa


Contessa Chef Inspired


Rich beefstew with carrots,pearlonions andmushroomsin a Burgundywine sauce

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OONTTESSA


Barefoot Contessa

barefooteontessa

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; .GONTESSA


Pennepasta with tomatoes, mqjgorgonzola, fontina, Panneand Romano cheese

OONTESSA


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Barefoot Contessa Contessa Chef Inspired


Nutrition Facta

Serving See %packageServing! Per Container

WWiSauea WWieolSauce

312g(llKl 1S4gfS.SK)2 2

lm»m*P*Ur+t

Calories fromFat270 140ao 45

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fatal Pat

SatuanxJfat

TransFat

ClmlieleuM

9g 14% 5g 1%3.5g US 159 •%

09 Og4Smg 11% 40mg 11%1340mg M% 450mg ten

^aa^rf faaaVebBallllBBWaTJBBl 20g 7% 99 1%Dietary Flcer

Sugars3g 11% 2g «%4g 1g

•retain 17g 14g

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WUmnC 10% VaarrnC t%

Caldurn 4K Calcilm 4K

Iron 35* Iron 10H

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muouoeo «m oatiKeuiai ncomma, nrataw races.»eeMe,W»ieuiUSlfar euHHonsorcoranantiaboutthaiproduct,oiaaaakeep padtaoa at pool of purehaaeandwrite to2025 let Am, SuHb20ft SaaOa. WAW121 USA

338'

Beef Stew Bourguignon

Barefoot Contessa

Nutrition Facte

Servng Sue ft peerageServrgsParContainai

SMiMvot WMMMImm

1129(11(2) 206g(72oi)2 2

ajeeeatfteaeaaae

en 4ioCttorieBtorn Fat 360 120

l>ll • aa%Mar>

*MM 4Dj •»% 13j M%Saturated Fat 2D I1H ig 4*%Inn Fal 0Jg Og

CMaatml 1Sng 40% 3Smg IMMeat Wkn] 41% ASOrrej MKMalCarMeyoMa 5t) 1t% S1g 1T%IMvy Flier *j 1t%2g t%

Sogers Jf Ig

24 20g

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WnnA 25% VwnifiA 10%

temnC 10% VtatfnC 0%

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Nutrition Facts

Serving Size'hpackageServings PerContainer

Wrth Sauce Wittioul Sauce

312g(11oz) 205g(7ioz)2 2

uaraM,

Caeoelea 640 400

Calories from Fat 320 110

OaHflaaie- OefcSBlae-

Total FM 36g M% 12g 1t%

21g 1M% 7g *S%0g 0g

Saturated Fat

Trans Fat

fulfill

nOmg *T% 30mg 10%

940mg M% 540mg »%

59g «0% 54g 1t%

49 11% 4g 1(%

♦9 3g22g 18g

Tetal CarMiyeYat*

Dietary F)nr

Sugars

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WamnA 15% VitamhA 8%

VtomnC 15% VkammC 0%

Cataum 35% Cakaurn 30%

•on 20% kon 15%

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laaaaj(CreampasteiUM Cream.Mft. CeTOQMr«r<i frwM tonutoftjMoaa, tomato Pine. Sat Cure **(&&nCmnty.'mK,fiam»Chaeaepawunied Part-Skimttfc. CtamCua«r*,Saa,&ij»nie«}.ii™aft«JBitter nana Ch-ew |Pattaurind Mm,Pm**t^m*i.*ui9m.&***"aaodftatl F00BStarch.GuarCuiuCiBiBBirtarfl.Salll^twtiwSsrtai^.HottedCom Sft^.ConM 2% v j

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CONTESSAPREMUM FOODS.atone, an Ml 21 USAForqueebons or onrnants anout He product,OMeeekeep packaoe at proofot pircnaie and writeto.20» 1>tAn, Soia 200; Seaffie. W HI21 USA

Penne Pasta with Five Cheeses

barefootcontessa

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ie£stewwith carrots,pearl©Moris and mushroomsina Burgundywine sauce

, p IM ?\MINUTES/

NET.VT. 22 OZ (1.375 LBS) (624c

barefootcontessa


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barefoot contessa trademark complaint.pdf

Documents

appeal28 usc

withdrawal28 usc

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motor vehicleproduct

educationprisoner civil

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