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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COMPLAINT
Plaintiff Gummy Bear International, Inc. (hereinafter “GBI” or Plaintiff), by its
undersigned counsel, for its complaint against Rusan Kocakus (“Kocakus”) and Rudy’s Family
Restaurant Diner Inc. (“RFRD,” collectively with Kocakus, “the Defendants”), alleges as
follows:
NATURE OF THE ACTION
1. This lawsuit arises out of the Defendants’ infringement and misappropriation of
GBI’s intellectual property, specifically, its copyrighted, trademarked and highly popular
Gummibär character. The Defendants have blatantly and willfully infringed GBI’s trademark
and copyrights through the creation and operation of a Gummibär-themed yogurt shop called
“Rudy’s Gummy Berry Frozen Yogurt Shop” (“Yogurt Shop”). The Defendants extensively
displayed actual images of the Gummibär character and artwork throughout the Yogurt Shop
without GBI’s authorization as part of the Defendants’ flagrant effort to pass off the Yogurt Shop
GUMMY BEAR INTERNATIONAL, INC.,
Plaintiff, CIVIL ACTION NO.
v.
RUSAN KOCAKUS, JURY TRIAL DEMANDED
and
RUDY’S FAMILY
RESTAURANT DINER INC.,
Defendants.
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as an authorized Gummibär franchise. Accordingly, GBI brings this civil action for copyright
infringement under the Copyright Act, 17 U.S.C. §101 et seq.; trademark counterfeiting,
trademark infringement, trademark dilution, unfair competition, false advertising and false
designation of origin under the Lanham Act, 15 U.S.C. §101 et seq.; and for violations of the
Deceptive Trade Practices Act and Unfair Competition under Delaware state law. Plaintiff seeks
actual and statutory damages, attorneys’ fees, punitive damages, and injunctive relief.
PARTIES
2. Plaintiff GBI is a corporation duly organized and existing under the laws of the
State of New Jersey, with its principal place of business located in New Jersey.
3. Upon information and belief, RFRD is a corporation organized under the laws of
the State of Delaware, with its principal place of business located at 17064 South Dupont
Highway, Harrington, Delaware.
4. Upon information and belief, Kocakus is an individual, who resides in Delaware.
Kocakus, upon information and belief, is the principal owner, officer, director and/or shareholder
of RFRD, and regularly conducts business in Delaware through the operation of multiple
restaurants. Upon information and belief, Kocakus had full knowledge and control over the
infringing activities of RFRD, including those specifically occurring within this judicial district.
JURISDICTION AND VENUE
5. This Court has jurisdiction over the subject matter of this action pursuant to the
Copyright Act, 17 U.S.C. § 101, et seq. and the Trademark Act of 1946, 15 U.S.C. §§ 1051, et
seq. (the “Lanham Act”). This Court has original jurisdiction over this action under 28 U.S.C.
§§ 1331, 1332 and 1338 (a) and (b), 17 U.S.C. § 501 and 15 U.S.C. §§ 1116 and 1121, and
supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a).
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6. This Court has personal jurisdiction over the Defendants as the Defendants reside
in this district, transact business in this district, and have sold or distributed infringing
merchandise within this district. Hence, a substantial part of the events giving rise to the claims
alleged herein occurred in and continue to occur in this district.
7. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) and (c).
FACTS
GBI’S GUMMIBÄR
8. Gummibär, a singing and dancing animated gummy bear, is the most watched
animated character on YouTube, with more than three million video views each day and over
five billion total views.
9.
In 2005, Christian Schneider began developing the concept for the Gummibär
character, along with the lyrics and sound recordings for Gummibär songs.
10. In 2006, the song “I am a Gummy Bear” and then a music video of the same
name, became viral internet sensations first in Europe and then throughout the United States and
the world. Schneider then authored a number of other songs to be sung by Gummibär which also
became immensely popular.
11. Christian Schneider and his son of the same name (collectively referred to as “the
Schneiders”) conducted business in Europe under the name of Yazoo Music (GBR) (“Yazoo”).
12. In 2007, the Schneiders and Jurgen Korduletsch formed GBI for the purpose of
exploiting the copyright and trademark rights to the animated Gummibär character in the United
States and in other territories. The Schneiders and Korduletsch are the owners of GBI and
Korduletsch serves as the President of GBI.
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13. GBI devoted a considerable amount of time, money and effort in developing an
original, animated Gummibär character to be featured in music videos and other media. GBI
also extensively promoted and marketed its original Gummibär character.
14. GBI has produced a series of immensely popular Gummibär music videos.
Gummibär’s upbeat music and humorous videos have been released in more than forty countries
and in over twenty-seven languages.
15. In 2012, GBI released a Gummibär Christmas long-form video.
16. In February 2014, John Travolta agreed to provide the voice for the Gummibär
character for a $30 million budgeted theatrical movie titled “Gummy Bear the Movie.” A
Gummibär television series, to be broadcast worldwide, is currently in production as well.
17.
GBI has obtained the following copyrights in the United States pertaining to
Gummibär:
a. In 2006, the sound recording and music rights for “Gummibär – Ich Bin Dein
Gummibär ”;
b.
In 2007, the sound and recording music rights for “Gummibär – I Am Your
Gummy Bear”; and
c. In 2012, the motion picture r ights for “The Yummy Gummy Search for
Christmas.”
18. Copies of the relevant Certificates of Copyright Registration obtained by GBI are
attached hereto as Exhibit 1.
19. Copies of images of Gummibär from the “The Yummy Gummy Search for
Christmas” are attached hereto as Exhibit 2.
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20. GBI also owns the United States Registration for the Gummibär Mark
(Trademark Registration Number 4335076), a copy of which is attached hereto as Exhibit 3. The
GBI Trademark Registration covers a number of uses including but not limited to: i) candy,
cookies and crackers; ii) food staples such as ice cream, frozen yogurt, candy sweets and candy
bars; iii) toys and playthings; iv) children’s books and coloring books; and v) video files and
video animation.
21. The Gummibär Mark has been in continuous use in the United States since 2007,
and is recognized throughout the United States and internationally.
22.
The distinctive Gummibär Mark consists of an anthropomorphic, pudgy gummy
bear, with a green torso, one chewed up ear, wearing only yellow and white shorts and white
sneakers with yellow stripes.
23. GBI has successfully merchandized the Gummibär character internationally,
including throughout the United States. Gummibär merchandise includes but is not limited to t-
shirts, plush toys, children’s costumes, backpacks, candy and food products, party supplies,
school supplies and mouse pads.
24. GBI presently licenses its trademark to a candy manufacturer who sells
Gummibär branded gummy bear candies through national retail outlets and on GBI’s website.
25. GBI has received inquiries about licensing its intellectual property rights
domestically to open Gummibär-themed yogurt, ice cream, candy or other food stores. At all
times relevant hereto, GBI has been considering and evaluating opening Gummibär-themed
food, candy and/or merchandise stores.
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26. GBI has expended considerable sums each year in advertising and promoting the
famous Gummibär Mark and the goods associated therewith, and has generated significant
publicity with respect to its business operations and brand name.
THE DEFENDANTS’ INFRINGEMENT OF GBI’S TRADEMARK AND COPYRIGHTS
27. RFRD is a large family restaurant located in Harrington, Delaware. RFRD
consists of a large dining room and two banquet halls.
28. On or about October 30, 2014, the Delaware State News reported, in an article
attached hereto as Exhibit 4, that RFRD was expanding its business through the creation of the
Yogurt Shop. The Delaware State News further reported that RFRD was constructing a 2,600
square foot building adjacent to the existing restaurant to house the Yogurt Shop.
29.
The Defendants have blatantly infringed GBI’s trademark and copyrights through
their unbridled exploitation of Gummibär to promote the Yogurt Shop.
30. The Yogurt Shop extensively displayed actual images of the Gummibär character
and Gummibär artwork without GBI’s authorization. Unmistakably, the Defendants intended to
pass off the Yogurt Shop as an authorized Gummibär franchise. To accomplish this illicit goal,
RFRD misappropriated actual images of Gummibär from GBI’s website, and other sources, and
exploited those images to promote its business and to sell counterfeit Gummibär goods and
services.
31. Upon entering the Yogurt Shop, customers saw a large framed poster of
Gummibär (Exhibit 5).
32. The Yogurt Shop contains seven yogurt machines – each of which prominently
displayed three actual images of the distinctive Gummibär character (Exhibit 6). RFRD
provided its customers with cups conspicuously bearing a Gummibär image (Exhibit 7).
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33. Defendants pasted decals containing images of Gummibär on the floor of the
Yogurt Shop to direct customers through the self-serve yogurt shop (Exhibit 8). Upon entering
the Yogurt Shop, customers were directed, by following the decals, to first select a small,
medium or large cup containing an image of Gummibär and then to select the flavor of yogurt to
be dispensed from the yogurt machines. After filling their cups, customers could then select
from a variety of candy and cookie toppings of their choice, including gummy bears, to add to
their cups filled with “Rudy’s Gummy Berry” yogurt.
34. To promote the Yogurt Shop, RFRD also displayed the Gummibär image in its
diner on placemats (Exhibit 9), on business cards (Exhibit 10), and on t-shirts worn by waiters
(Exhibit 11).
35.
The Yogurt Shop also featured a connected Gummibär themed party room which
prominently displayed another large framed Gummibär poster (Exhibits 12 & 13). The party
room contained large easels to allow groups to engage in coloring and painting together.
Tellingly, GBI’s trademark registration covers coloring books, and GBI sold coloring books to
children.
36. RFRD further exploited the Gummibär character in its in-store promotions by
misappropriating an image of Gummibär taken from the popular “I am a Gummy Bear” music
video (Exhibit 14).
37. Strikingly, RFRD misappropriated the precise image of Gummibär contained in
the Trademark Registration for use on the floor decals, the business cards and the yogurt
machines. Thus, due to RFRD’s unauthorized use of the precise mark contained in GBI’s
trademark registration, RFRD confused customers mistakenly believed they were purchasing
Gummibär-licensed frozen yogurt and toppings.
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38. RFRD also prominently displayed a knock-off image of the Gummibär character
in a large billboard located in front of the store to direct traffic to the Yogurt Shop (Exhibit 15).
This knock-off image was the product of the Defendants’ crude effort to replicate Gummibär.
The Defendants interchangeably used the knock-off and actual images of Gummibär
simultaneously in the Yogurt Shop. The knock-off images were substantially and strikingly
similar to the actual images of Gummibär.
39. The Defendants also created and employed an unauthorized dancing Gummibär
mascot to entertain patrons in the store or to solicit cars driving by the store (Exhibits 16 & 17).
40.
The Defendants displayed on RFRD’s website and Facebook page photographs of
their exploitation of Gummibär throughout the Yogurt Shop, along with videos of their
Gummibär mascot performing inside and outside the restaurant (Exhibit 18).
41. Due to RFRD’s flagrant infringement and counterfeiting, confused Gummibär
fans have communicated to GBI in substance their mistaken impression that RFRD was an
authorized franchise of GBI, or licensed by GBI to exploit its intellectual property.
42.
This customer confusion is particularly disconcerting in light of some of the
negative reviews received by RFRD on various social media websites regarding R FRD’s
allegedly unsanitary conditions and rude staff. Further, Defendants tarnished the brand through
their use of a crude costume for its Gummibär mascot (as opposed to the professional costumes
used by GBI at trade shows or sold during Halloween).
43. A former manager at RFRD transmitted an email to GBI alerting GBI that the
Defendants were infringing GBI’s trademark. This communication confirms that the Defendants
willfully infringed GBI’s intellectual property rights.
44. GBI sent a cease and desist letter to the Defendants on July 13, 2015.
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45. The Defendants nonetheless continued willfully and flagrantly to infringe GBI’s
trademark and copyright through the end of August 2015, and upon information and belief, are
continuing to do so.
COUNT I
COPYRIGHT INFRINGEMENT UNDER 17 U.S.C. §101 et seq.
46. The allegations of the preceding paragraphs are incorporated by reference herein
with the same force and effect as if set forth in full below.
47. GBI is the copyright owner of the exclusive rights under copyright with respect to
the Gummibär images and character for which GBI has obtained a Certificate of Copyright
Registration issued by the Register of Copyrights.
48. Gummibär is protectable under copyright law as an original expression consisting
of the unique combination of Gummibär ’s appearance, characteristics, traits and behaviors.
49. The Defendants have never sought, and GBI has never granted to the Defendants,
any license to exploit Gummibär.
50. The Defendants have infringed GBI’s copyrights by displaying actual images of
Gummibär on the yogurt machines, on decals pasted on the floor of the Yogurt Shop, and in
large framed photographs displayed throughout the Yogurt Shop.
51. The Defendants further infringed GBI’s copyrights by displaying actual images of
Gummibär on the Defendants’ website and on the Defendants’ Facebook page to promote the
Yogurt Shop.
52.
Simultaneous with their use of actual images of Gummibär, the Defendants also
displayed knock-off images of Gummibär on a billboard in front of the store and inside the
Yogurt Shop (“knock-off images”). The knock -off images were substantially and strikingly
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similar to the actual images of Gummibär. The Defendants intended for their customers to view
the actual and knock-off images of Gummibär as representations of one and the same character.
53. The Defendants also violated GBI’s copyrights by directing an agent of RFRD to
dress in a Gummibär costume and to perform publicly in front of RFRD, and inside the Yogurt
Shop, as Gummibär. The Defendants then further infringed GBI’s copyrights by displaying
videos of these illegal performances on RFRD’s website and Facebook page.
54. Upon information and belief, the Defendants also have played GBI’s copyrighted
songs in the Yogurt Shop to solicit and entertain customers, including with the Defendants’
mascot present.
55. Upon information and belief, the Defendants are continuing in their unlicensed
and infringing activities.
56. The Defendants unauthorized acts constituted, and will continue to constitute,
willful infringement of GBI’s exclusive rights under copyright to Gummibär.
57. Defendants have unlawfully derived, and will continue to derive, income and
profits from their infringing acts. GBI has sustained, and will continue to sustain, substantial
injury, loss and damage.
58. As a direct and proximate result of the Defendants’ acts of copyright
infringement, GBI is entitled to actual damages and Defendants’ profits pursuant to 17 U.S.C. §
504(b). Alternatively, GBI is entitled to the maximum statutory damages in the amount of
$150,000 with respect to each infringed copyright pursuant to 17 U.S.C. § 504(c).
59. GBI is also entitled to attorneys’ fees pursuant to 17 U.S.C. § 505.
60. The Defendants’ conduct is causing and, unless enjoined by this Court, will
continue to cause irreparable injury to GBI that cannot be fully compensated or measured in
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money damages. GBI has no adequate remedy at law and, pursuant to 17 U.S.C. § 502, is
entitled to permanent injunctive relief prohibiting the Defendants from continuing to infringe
GBI’s copyrights.
COUNT II
FEDERAL TRADEMARK COUNTERFEITING
AND INFRINGEMENT UNDER 15 U.S.C. § 1114 et seq.
61. The allegations of the preceding paragraphs are incorporated by reference herein
with the same force and effect as if set forth in full below.
62. The Gummibär mark and goodwill of the business associated with the mark in the
United States is of great and incalculable value, is highly distinctive and has become universally
associated in the public mind with GBI’s products of the highest quality and reputation.
63.
The Defendants have sold candy and yogurt products in containers, and dispensed
from machines, bearing marks which are identical to the true Gummibär mark (“the Counterfeit
Products”).
64. The Defendants have manufactured, distributed, offered for sale and sold the
Counterfeit Products to the consuming public, in or affecting interstate commerce. At all times,
the Defendants acted without GBI’s authorization and consent, and with knowledge of GBI’s
prior rights in the Gummibär mark.
65. The Defendants’ use of actual copies of or simulations of the true Gummibär
mark on their Counterfeit Products and in conjunction with the Defendants’ infringing websites
is likely to cause and has caused confusion, mistake and deception among the general purchasing
public as to the origin of the Counterfeit Products, and has deceived and is likely to continue to
deceive the public into believing that the Counterfeit Products being sold by Defendants
originate from, are associated with or are otherwise authorized by GBI, all to the damage and
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detriment of GBI’s reputation, goodwill and sales. Accordingly, Defendants have used and are
using reproductions, counterfeits and copies of GBI’s federally registered marks in violation of
15 U.S.C. § 1114.
66. GBI has no adequate remedy at law and, if Defendants’ activities are not
enjoined, GBI will continue to suffer irreparable harm and injury to its goodwill and reputation.
67. Defendants’ actions demonstrate an intentional, willful and malicious intent to
trade on the goodwill associated with the Gummibär mark, to GBI’s great and irreparable injury.
68. Defendants are causing and will continue to cause substantial injury to the public
and to GBI, and GBI is entitled to injunctive relief and to recover Defendants’ profits, treble
damages, or, in the alternative, maximum statutory damages as well as costs, and reasonable
attorneys’ fees under 15 U.S.C. §§ 1114, 1116 and 1117.
COUNT III
UNFAIR COMPETITION AND
FALSE DESIGNATION OF ORIGIN UNDER 15 U.S.C. § 1125(a)
69. The allegations of the preceding paragraphs are incorporated by reference herein
with the same force and effect as if set forth in full below.
70. The Defendants’ knowing use of the Gummibär mark, or confusingly similar
imitations of the true Gummibär mark, in connection with the sale of goods in the Yogurt Shop,
has caused and will continue to cause confusion, deception and mistake among the general
purchasing public, by creating the false and misleading impression that Defendants’ goods are
manufactured or distributed by Gummibär, or are affiliated, connected or associated with
Gummibär, or have the sponsorship, endorsement or approval of Gummibär.
71. By misappropriating and using the Gummibär mark and trade dress, Defendants
have misrepresented and falsely described to the general public the origin and source of the
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products being sold in the Yogurt Shop and have created a likelihood of confusion by consumers
as to the source of such merchandise.
72. Defendants have expressly and implicitly represented that the products sold in the
Yogurt Shop were created, authorized or approved by GBI, all to Defendants’ profit and to
GBI’s great damage and injury.
73. Defendants’ aforesaid acts are in violation of Section 43(a) of the Lanham Act, 15
U.S.C. § 1125(a), in that Defendants’ use of the GBI mark, in connection with their goods and
services, in interstate commerce constitutes a false designation of origin and unfair competition.
74.
GBI has no adequate remedy at law and, if the Defendants’ activities are not
enjoined, GBI will continue to suffer irreparable harm and injury to its goodwill and reputation.
75.
Defendants’ actions demonstrate an intentional, willful and malicious intent to
trade on the goodwill associated with the GBI mark to GBI’s great and irreparable injury.
COUNT IV
TRADEMARK DILUTION UNDER 15 U.S.C. § 1125(C)
76. The allegations of the preceding paragraphs are incorporated by reference herein
with the same force and effect as if set forth in full below.
77. Plaintiff’s mark is a famous mark within the meaning of 15 U.S.C. §1125 (c)(1)
and had become a famous mark prior to the Defendants’ conduct complained of herein.
78. Plaintiff ’s trademark is famous by virtue of its inherent and acquired
distinctiveness, along with through the Plaintiff’s extensive use, advertising and publicity of the
mark that has resulted in strong and widespread recognition of the mark, and by virtue of the
registration of the mark on the Principal Trademark Register of the United States Patent and
Trademark office.
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79. The Defendants’ use of the Plaintiff’s mark on and in connection with the sale and
distribution of the infringing products dilutes the strength and distinctive quality of Plaintiff’s
famous trademark and lessens the capacity of the Plaintiff’s trademark to identify and distinguish
Plaintiff’s products. Defendants also have tarnished the Plaintiff’s trademark by associating it
with the negative review of the Defendants’ business and through their public display of their
crude Gummibär mascot.
80. The acts and conduct complained of herein constitute willful and deliberate
dilution of Plaintiff’s trademark. The foregoing acts of the Defendants constitute a violation of
the federal anti-dilution statute, Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).
81. By reason of all the foregoing, Plaintiff has been damaged by the Defendants’
willful use of the Plaintiff’s trademark in the manner set forth above and will continue to be
irreparably injured unless the Defendants are permanently enjoined from using the mark.
82. Plaintiff is entitled to all damages it has sustained in an amount to be determined
at trial including but not limited to the Defendants’ profits and gains as a result of their unfair
competition described above, attorneys’ fees and costs of this action. Moreover, by virtue of the
Defendants’ willful infringement, Plaintiff is entitled to statutory damages.
COUNT V
FALSE ADVERTISING – LANHAM ACT § 43(A), 15 U.S.C. § 1125(A)
83. The allegations of the preceding paragraphs are incorporated by reference herein
with the same force and effect as if set forth in full below.
84.
Upon information and belief, the Defendants advertised the Yogurt Shop, through
exploitation of the Gummibär mark, on the internet, in the print media, in a billboard in front of
the store and through public performances by their unlicensed Gummibär mascot.
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85. Section 43(a) of the Lanham Act , 15 U.S.C. § 1125(a) provides in relevant part
that “any person who, or in connection with any goods or services, … uses in commerce any …
false or misleading description of fact, which … in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities or geographic origin of his or her or another
person’s goods, services, or commercial activities, shall be liable to a civil action by any person
who believes that he or she is likely to be damaged by such act.”
86. The aforementioned advertising contained false representations as to the origin,
sponsorship, or approval of Defendants’ goods, services, or commercial activities by GBI.
87.
By reason of the Defendants’ conduct, Plaintiffs have suffered and will continue
to suffer, damage to their businesses, reputations and goodwill. Pursuant to 15 U.S.C. § 1117,
Plaintiffs are entitled to damages for Defendants’ Lanham act violations, an accounting of profits
made by Defendants through their sale of infringing goods and services, and the recovery of
Plaintiff’s costs and reasonable attorneys’ fees incurred in this action.
88. Defendants’ acts are willful, wanton and calculated to deceive, and are undertaken
in bad faith, making this an exceptional case entitling Plaintiff to recover additional damages and
reasonable attorneys’ fees pursuant to 15 U.S.C. § 1117.
89. Unless enjoined by this Court, Defendants’ acts will irreparably injure Plaintiffs’
goodwill. Pursuant to 15 U.S.C. § 1116, Plaintiffs are entitled to permanent injunctive relief to
prevent Defendants’ continuing acts.
COUNT VI
VIOLATION OF THE DELAWARE DECEPTIVE TRADE PRACTICES ACT
90. The allegations of the preceding paragraphs are incorporated by reference herein
with the same force and effect as if set forth in full below.
91. 6 Del. C. § 2532 provides that:
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(a) A person engages in a deceptive trade practice when, in the course of his business,
vocation, or occupation, that person:
(1) Passes off goods or services as those of another;
(2) Causes likelihood of confusion or of misunderstanding as to the source,
sponsorship, approval, or certification of goods or services;
(3) Causes likelihood of confusion or of misunderstanding as to affiliation,
connection, or association with, or certification by, another … ;
(5) represents that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities that they do not have or that a person
has a sponsorship, approval, status, affiliation or connection that he or she
does not have;
(12) engages in any other conduct which similarly creates a likelihood of
confusion or of misunderstanding.
92. 6 Del. C. § 2532 provides a private right of action to enforce the provisions of 6
Del. C. § 2532.
93. In the course of their business, the Defendants, by and through their false and
misleading representations of fact and conduct concerning Gummibär have engaged in and
continue to engage in deceptive trade practices in violation of 6 Del. C. § 2532.
94. Defendants have willfully engaged in their actions regarding Gummibär knowing
them to be deceptive.
95. By reason of the Defendants’ conduct, Plaintiffs have suffered and will continue
to suffer damage to its business, reputation and goodwill.
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COUNT VII
COMMON LAW UNFAIR COMPETITION
96. The allegations of the preceding paragraphs are incorporated by reference herein
with the same force and effect as if set forth in full below.
97. Defendants’ actions as described above have been undertaken with the intention
of benefiting from and profiting upon the name and associated goodwill connected with
Gummibär. Defendants accomplished this goal through the use of the Gummibär trademark and
trade dress owned by Plaintiffs.
98. Defendants’ use of the trademark and trade dress owned by the Plaintiff was
intended to, and unless restrained by this Court, will lead and tends to lead the public to believe
that there is a connection or association between Defendants and Plaintiff, when in fact there is
none.
99. Upon information and belief, Defendants have made, and unless enjoined, will
continue to make considerable profit as the direct result of their wrongful actions, which have
been undertaken in wanton, willful and reckless disregard of Plaintiff’s rights.
100. Defendants’ actions injured Plaintiff’s reputation and goodwill and expressly
misled the public by falsely imputing a connection or relationship between Defendants’ inferior
products and services and Plaintiff. This has caused the Plaintiff to suffer financially, and
constitutes unfair competition in derogation of the common law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests the following relief:
1.
That Defendants and their respective agents, servants, employees,
contractors and all persons, firms, corporations, or entities acting under Defendants’ direction,
authority or control, and all persons acting in concert with any of them, be permanently enjoined
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from: a) using the Plaintiff’s copyrights, trademarks, service marks, logos and trade dress, or any
copy, counterfeit or imitation of any of them in any manner, including but not limited to in
advertising, promoting, and/or marketing their Yogurt Shop; b) committing or inducing others to
commit any other infringing acts calculated to cause purchasers to believe that Defendants are
selling Plaintiff’s genuine products;
2. That Defendants be required to account pursuant to 17 U.S.C. § 504 and
15 U.S.C. § 1117 for Plaintiff’s losses and Defendants’ profits derived from advertising,
promoting, marketing, purchasing, distributing, displaying, selling, offering to sell product which
infringe upon Plaintiff’s copyrights and trademark.
3.
That Defendants be ordered to pay statutory damages for willful copyright
infringement in an amount of not less than $150,000 per copyrighted work infringed;
4. That Plaintiff be awarded damages in an amount to be determined at trial
in connection with Defendants’ acts of trademark infringement, unfair competition, and dilution
of Plaintiff’s trademark and trade dress under both the Lanham Act and Delaware Law;
5. That Defendants be ordered to pay either actual damages and infringing
profits or statutory damages for willful trademark counterfeiting in an amount of up to
$2,000,000 per counterfeit mark per type of goods sold, offered for sale or distributed as the
Court considers just;
6. That all infringing merchandise, advertisements, containers, photographs,
decals and posters, which incorporate the Plaintiff’s copyrights, trademarks, service marks, logos
and trade dress, or any copy or imitation of any of them, be surrendered, impounded and
destroyed pursuant to Lanham Act, 15 U.S.C. § 1118 and Copyright Act, 17 U.S.C. § 503;
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7. That Defendants be ordered to pay Plaintiff’s costs incurred herein,
including reasonable attorneys’ fees;
8. That treble damages be awarded for all trademark damages assessed
herein;
9. That exemplary and punitive trademark damages be awarded; and
10. That Plaintiff be awarded such other and further relief as is just, proper
and equitable.
DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a trial
by jury as to all issues so triable.
LAW OFFICES OF
MICHELE D. ALLEN, LLC
/s/ Michele D. AllenMichele D. Allen, Esq. (Bar ID 4359)724 Yorklyn Road, Suite 310
Hockessin, DE 19707Telephone: (302) 234-8600Facsimile: (302) [email protected] Attorney for Plaintiff
Dated: February 24, 2016
KAGEN & CASPERSEN
/s/ Russell Bogart
Russell Bogart, Esq. (RB 0320)900 Third Avenue, 17th Floor New York, N.Y. 10007
(212) [email protected] Pro Hac Vice pending
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mailto:[email protected]:[email protected]:[email protected]
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EXHIBIT
NUMBER
DESCRIPTION
1 Copies of the Certificates of Copyright Registration pertaining to Gummibärobtained by GBI.
2 Images of Gummibär from “The Yummy Gummy Search for Christmas” DVD.
3 The Trademark Registration for the Gummibär Mark.
4 October 30, 2014 Delaware State News Article.
5 Photographs of a large, framed Gummibär poster present in the front of theYogurt Shop.
6 Photographs of the displaying of actual Gummibär images on the yogurtmachines contained in the Yogurt Shop.
7 Photographs of the cups used in the Yogurt Shop which display the Gummibärimage.
8 Photographs of the Gummibär decals pasted to the floor of the Yogurt Shop.
9 Photograph of the Gummibär image on placemats.
10 Photographs of the Gummibär image on business cards.
11 Photographs of the Gummibär image on t-shirts.
12 Photograph of the Gummibär themed party room.
13 Photograph of the exploitation of Gummibär in promotions.
14 Photograph of the exploitation of Gummibär in promotions.
15 Photograph of the display of Gummibär in a billboard located in front of theYogurt Shop.
16Images from a video available on the Facebook page for the Defendants whichdepicted the Defendants’ use of a Gummibär mascot to entertain children in theYogurt Shop.
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17Images from a video available on the Facebook page for the Defendants whichdepicted the Defendants’ use of a Gummibär mascot located in front of theYogurt Shop soliciting customers for the Defendants.
18 Photographs displayed on the Defendants’ website and Facebook page whichexploit the Gummibär image.
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