navan foods v. spangerl candy - trademark complaint.pdf

8/18/2019 Navan Foods v. Spangerl Candy - trademark complaint.pdf

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FILED

I N T H E U N I T E D S TA T E S D IS T R IC T C O U R T

F O R T H E E A ST E RN D IS T RI CT O F V I R G IN IA

N o r f o lk D i v is i o nim H R 31 P l{ 51

NAVAN FOODS, L L C

Plaint i ff ,

V

S PA N G L E R CANDY COMPANY,

INC.,

a n d

FISHE R DESIGN, INC.

D e f e n d a n t s .

CLERKUS DISTRICT COURT ^EXyiDRI VIRGINI

C i v i l A c t i o n N o .

D E M A N D F O R J U R Y T R I A L

C O M P L A I N T

PlaintiffNavan Foods, LLC Plaintiff), by and through its undersigned attorney, alleges

as follows, based upon actual knowledge with respect to its own acts and upon infonnation and

belief with respect to all other matters.

N A T U R E O F T H E C A S E

1. This is a civil action to remedy the actions taken by Defendant Spangler Candy

Company, Inc. Defendant Spangler ), with the assistance of Defendant Fisher Design Group

Defendant Fisher ) collectively Defendants ) to deprive Plaintiff of what lawfully belonged

to Plaint iff, thereby causing economic injury to Plainti ff. Specifica lly, the Defendants stole

Plaintiffs intellectual property including Plaintiffs t rademarks and copyr ights, as described

here in) and used and reproduced said intellectual property without the knowledge, consent, or

a u t h o r i z a t i o n o f Pla in t i ff .

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 1 of 44 PageID# 1


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2. On information and belief. Defendant Fisher designed certain o f the icons used by

Defendant Spangler, which infringed Plaintiffs intellectual property and are now the subject of

this lawsuit. As such. Defendant Fisher acted in concert with Defendant Spangler, and,

therefore, all Counts alleged in this Complaint are alleged against both Defendants. An

announcement posted on Defendant Spangler s website, dated May 23, 2012, states Fisher

Design, a brand strategy and package design agency located in Cincinnati, Ohio, was brought on

to develop the new artwork [that contained intellectual property that Plaintiffalleges infringed on

Plaintiffs legal rights] with the marketing depar tment using a multi-phase process that also

incorporated input from sales, production and quality assurance.

3. Defendants legal violations include, inter al ia. Federal Infringement of an

Unregistered Trademark and False Designation of Origin, False or Misleading Description of

Fact and False or Misleading Representation of Fact under Section 43(a)(1)(A) of the Lanham

Act 15 U.S.C. § 1125(a)(1) Asserted by Plaintiff Against Defendants; Federal Infringement of an

Unregistered Trade Dress and False Designation of Origin, False or Misleading Description of

Fact and False or Misleading Representation of Fact under Section 43(a)(1)(A) of the Lanham

Act 15 U.S.C. § 1125(a)(1) Asserted by Plaintiff Against Defendants; Federal Unfair

Competition o f Trademarks under Section 43(a) of the Lanham Act 15 U.S.C. § 1125(a) Asserted

by Plaintiff Against Defendants; Federal Unfair Competition of Trade Dress under Section 43(a)

o f the Lanham Act 15 U.S.C. § 1125(a) Asserted by Plaintiff Against Defendants; Common Law

Trademark Infringement and Unfair Competition under Virginia Common Law Asserted by

Plaintiff Against Defendants; o mmo n aw Trademark Infringement an d Unfair Competition

under Ohio ommon aw Asserted by Plaintiff Against Defendants; Unfair Competition under

Virginia s Consumer Protection Act, Virginia Stat. Ann. § 59.1-200(A) Asserted by Pla inti ff



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Against Defendants; Deceptive Trade Practices under Ohio Law, O.R.C. § 4165.02 A , Asserted

by Plaintiff Against Defendants; Dilution of an Unregistered Trademark under the Federal

Trademark Dilution Act 15 U.S.C. § 1125 c Asserted by PlaintiffAgainst Defendants; Federal

Copyright Infringement Under the Copyright Act 17 U.S.C. § 501 a Asserted by Plaintiff

Against All Named Defendants; False Advertising under Section 43 a of the Lanham Act 15

U.S.C. § 1125 a 1 B Asserted by Plaintiff Against Defendants; False Advertising under Va.

Code § 18.1-216 Asserted by Plaintiff Against Defendants; Tortious Interference with Business

Relations, Opportunities, Expectancy and Prospective Economic Advantage Asserted by Plaintiff

Under Virginia Common Law Against Defendants; Tortious Interference with Business

Relations, Opportunities, Expectancy and Prospective Economic Advantage Asserted by Plaintiff

Under Ohio Common Law Against All Defendants; Breach of Contract Asserted by Pleiintififand

Derivative Plain tif f Against Defendants; Civil Conspiracy under Virginia Common Law

Asserted by Plaintiff Against Defendants; and Civil Conspiracy under Ohio Common Law

Asserted by Plaintiff gainst Defendants.

J U R I S D I T I O N N D V E N U E

4. This Court has subject matter jurisdiction over this action, pursuant to 28 U.S.C. §

1331, because this suit asserts causes of action under both 15 US §1125 and 17 U.S.C. §501 a .

This court also has subject matterjurisdiction under 28 U.S.C. §1338 a - b .

5. Pursuant to 28 U.S.C. § 1367 a , this Court has supplemental jurisdiction over the

claims in this Complaint that arise under the common law and the statutes of the Commonwealth

of Virginia and the State of Ohio because the claims ar e so rela ted to th e federal claims that they

form part of the same case or controversy and derive from a common nucleus o f operative facts.

6. In the alternative, pursuant to 28 U.S.C. § 1332 a 1 , this Court has diversity



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jurisdiction over the claims in this Complaint because the amount in controversy exceeds Seventy

Five Thousand Dollars ( 75,000.00), exclusive of interest and costs, and the parties are citizens of

d i f f e r en t s ta tes

7. Defendants are each subject to this Court s personal jur isdict ion because Plaintiff

is a limited liability company organized to do business in the Commonwealth of Virginia,

Plainti ff has its principal place of business in the Commonwealth of Virginia, Plaintiff has

suffered injury in Virginia as a result of Defendants unlawful acts, the parties operate and

transact business in the State of Virginia, the parties can be found in State of Virginia, Defendant

Fisher acted with, assisted, conspired, and engaged in acts related to Defendant Spangler

conducting business in the Commonwealth of Virginia, Defendants have committed the acts in

furtherance of their business in the Commonwealth of Virginia, and Defendant Spangler has a

broad distributorship network in the Commonwealth of Virginia that generates a substantial

amount o f r evenue for t h e e f en d a nt

8. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)-(c) and § 1400(a)

because Plaintiffis located in this district; Plaintiff is a business organized under the laws of the

Commonwealth of Virginia with a principal place of business in this district; the property that is

the subject of this litigation was created, situated, and used in this district; Defendants are doing

and have done business within the district; and a substantial part of the events or omissions giving

r is e t o P l a i n t i f f s c l ai m s a r e s it u at ed in th is district

T H P R T I S

9. Plaintiff is a limited liabili ty company orgsinized under the laws of the

Commonwealth of Virginia with its principal place of business located at 1080 San Marco Road,

Virginia Beach, Virginia 23456.



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10. Defendant Spangler is a corporation organized under the laws of the State of Ohio

with its principal place of business located at 400 North Portland Street, Bryan, Ohio 43506.

11. Defendant Fi she r is a corporation organized under the laws of the State of Ohio

with its principal place of business located at 4101 Spring Grove Avenue, Unit B, Cincinnati,

O H 4 5 3

I N F O R M T I O N B O U T P L I N T I F F P L I N T IF F S I N T E L L E C T U L P R O P E R T Y

12. Pla in ti ff i s a l imited liability company that was star ted by Jennifer El izondo, a

mother whose youngest son Vaughn was diagnosed with multiple, life-threatening food allergies

when he was eighteen months old that resulted in multiple emergency room visits that left

Vaughn's parents worried for his life.

13. After Vaughn was diagnosed, Ms. Elizondo quickly learned how difficult it was

to find safe foods for he r son. She was forced to make regular weekly trips to several different

grocery stores and was left v^th a great deal of uncertainty regarding the safety of what she was

buying, primarily as a result of cross-contamination issues in the production and handling of

these food items. Despite the labels on these foods indicating that the product did not contain

harmftil ingredients, cross-contamination of even the smallest trace o f harmftil ingredients in the

production and handling of these foods could be lethal to her son. For example, if certain

ingredients even touch the same conveyer belt upon which safe foods are later placed or even

handled in the same room, the results could be deadly.

14. Ms. Elizondo quickly realized that there were other parents who had children with

the same medical issues a nd w ho were dealing with the same challenges. As such, she created a

concept for a store that would find alternative, allergy-friendly foods not carried by chain



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grocery stores and then contact the manufacturers directly to inquire about ingredients and the

specific manufacturing environment in which the products are made and handled.

15. On or about July 27 2007 Ms. Elizondo founded Navan Foods LLC and started

working diligently to develop her business plan and obtain the resources information and

contracts n ee de d t o e xe cu te h e r vis ion.

16. The business concept was a calculated risk as to Ms. Elizondo s knowledge there

were no brick-and-mortar stores of this type anywhere in the country. Because she felt strongly

about her concept and was fueled by a desire to help other families facing medical challenges

including food allergies. Autism and Celiac disease Ms. Elizondo pushed forward and executed

her vision without a single proven prototype.

17. At the center of Ms. Elizondo s vision was an icon system that would be integral

to the success of her business model. Plaintiffengaged a graphic design company to design from

scratch the icons and began exchanging e-mails with the graphic design company on or about

January 15 2008.

18. After the graphic design company sent Pla inti ff the initial proofs of the icons.

Plaintiffand the design company continued exchanging e-mails wherein Plaintiffrequested

changes and modifications of the icons. The graphic design company changed and tweaked the

icons per her requests. Plaintiffwas invoiced for the icons on or about March 5 2008 and

Plaintiffpaid this invoice on March 7 2008.

19. On or about April 25 2008 the design company sent Plaintiffan e-mail that

included an attachment containing inter alia the final version of fifteen individual allergen

icons. A copy of each individual allergen icon is attached collectively hereto and incorporated

herein as Plaintiffs Exhibit A. These fifteen allergen icons attached as Exhibit A are the sole



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and exclusive trademarks of Plaintiff. Nine of these fifteen allergen icons would eventually be

used and reproduced illegally by Defendants. A copy of the nine allergen icons that are the

subject matter of this litigation are attached hereto and incorporated herein as Plaintiffs Exhibit

B (hereinafter the Trademarks or Plaintiffs Trademarks ).

20. On or about May 3, 2008, Ms. Elizondo s vision came to fruition when Plaintiff

opened a brick-and-mortar store in a strip mall in Virginia Beach, Virginia. A copy of an article

from the Health Central website titled Allergy-Free Grocery Shopping at Navan, dated June 6,

2008, is attached hereto and incorporated herein as Plaintiffs Exhibit C.

21 The article marked as Plaintiffs Exhibit C details Plaintiffs business concept

which featured the Trademarks as part of Plaintiff s icon system. As explained in the article.

Plaintifffound and researched alternative, allergy-friendly foods that larger stores usually did not

carry and then contacted the manufacturer of all the products in writing to obtain information

regarding ingredients, the production facility, testing at the facility, the manufacturing

environment, handling of the foods and cross-contamination issues. This information was then

gathered onto a shelf card, which was placed beside each individual product found in

Pla in t i ff s store These she l f ca rds feature Pla in t i ff s Trademarks a n d a re r e fe renced in the

article. The shelf cards containing the Trademarks are visible in the small photo included in

E x hi bi t C

22. The shelfcards referred to in Exhibit C reflected a coding system developed by

Plaintiff that consisted of various, proprietary icons consumers could use to quickly and easily

determine whether a product was safe for consumption. These icons, consisting of Plaintiff s

Trademarks, were assigned to foods only after Plaintiffconducted independent research, and the

Trademarks are intended to convey the research performed by Ms. Elizondo to consumers in a



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quick and easy fashion, so that consumers can rely on such information to determine if a product

i s s af e t o eat .

23. Plaintiffs Trademarks often convey information that a consumer cannot ascertain

just from reading the labels. For example, the manufacturer of Froose gummies claims their

product to be allergen free (including nut free). However, coconut oil is used in the

manufacturing of the product and coconut is a t ree nut according to the Food Drug

Administration. Despite the FDA recognizing coconut as a tree nut, FDA exemptions allow the

company to not declare on its packaging that it contains tree nuts

24. A press release dated May 10 2008 titled With Alarming Increase in Food

Allergies, a Ne w Type of Food Store Helps Families Cope with Special Diets contained photos

of Plaintiffs shelf cards displaying the Trademarks and states that what separates Plaintiffs

business from other grocery or health food stores are the services offered as evident in the

product cards and the Trademarks displayed therein,

25. Not only did Plaintiffuse the Trademarks on the shelf cards displayed

prominently in her store, but Plaintiffalso provided consumers with a brochure that details

Plaintiffs icon system and how consumers can rely on Plaintiffs Trademarks.

26. On or about late August 2008, Plaintiff launched a website at

https://www.navanfoods.com that, like Plaintiffs store, also used the Trademarks to inform

consumers and sell products online. Plaintiffregularly placed the Trademarks on the website

alongside products sold on the website so consumers could rely on the special information and

special meaning conveyed by the Trademarks to make their purchase. The website also

contained a guide explaining Plaintiffs labeling system, the information each Trademark is



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intended to convey, how the information each Trademark is intended to convey was collected,

and ho w consumers may rely on the Trademarks.

27. A press release dated August 27, 2008, titled Navan Foods Brings Easy Food

Allergy Shopping Online discusses the launch of laintiffs website, includes a copy of a

product card containing the Trademarks and reads,

Navan Foods concept is to provide shoppers with point of saleinformation regarding product ingredients and the manufacturing environment.The website, designed by 3 Waves Media, follows the store s concept byproviding a wealth of information about food products using the company sicon system to denote Made Without ingredients (i.e., gluten free, peanutfree, etc.), healthy options, and other special diet information like whether the

product is Organic or Kosher.

28. laintiffs Trademarks as featured in her shelf cards, website and marketing

materials were the primary selling point of Plaintiff s business as they comprised the central,

unique feature of Plaintiffs business model because the Trademarks were used and depended on

by laintiffs customers. This business model and the Trademarks associated therewith are what

attracted the attention of the allergy-free community and resulted in Plaintiff receiving both local

and national press.

29. Plaintiffs business model and its Trademarks resulted in a great deal of media

coverage from local and national news outlets as well as from individuals who are pillars in the

food allergy community. In fact, within the first six months of being in business, Plaintiffwas

named by the leading nationally circulated trade magazine for the food distribution industry.

Supermarket News, as one of their Top Fit 25 which celebrates the efforts of food retailers

leading the industry in health, wellness, and sustainability. The designation recognizes 25

retailers that are leading the way in smarter shopping and better living. Thisis an honor usually

bestowed upon larger companies, such as Trader Joes, Walmart, and Whole Foods. This article



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points out the intrinsic importance of the shelf cards featuring the Trademarks to Plaintiff s

s u c ce s sf u l b u s in e s s m o d e l .

29. In an article posted on GoDairyFree.org on September 1, 2008, the author

discusses how Plaintiffs business operation and reach is extending beyond their local area and

how Plaintiffships products to customers throughout the United States. Additionally, the article

highlights Plaintiffs unique proprietary icon system featuring Plaintiff s Trademarks. In fact,

Plaintiffregularly sold and shipped products to customers throughout the United States through

b o th o n li n e an d i n - st o r e s a le s .

30. Another article from the Virginia Pilate Beacon newspaper, dated May 25, 2008,

titled Navan Foods Helps Shoppers Find Edibles that Don t Irritate, discusses Plaintiffs

labeling system as designated through Plaintiffs Trademarks and states that the Trademarks

provided a major time-saver to one of Plaintiffs customers, a view shared by the vast majority

of Plaintiff s customer base. Additionally, the article references ho w most products labeled

c om free may contain citric acid which £ n actually come from com or fmit. As such.

Plaintiffs com-free proprietary icon conveys this information to the consumer.

31. There were many independent articles written featuring Plaintiffs Trademarks.

For example, an article from Link magazine, dated July 29, 2008, discussed Plaintiffs labeling

system, featured photos of the Trademarks and discussed the large amount of time saved by

consumers who rely on Plaintiffs Trademarks, while an article from the July/August 2009 issue

of Thrive Magazine, titled The Navan Foods Story: How a Virginia Beach Woman Took

Matters in Her Own Hands, references Plaintiffs icon labeling system and icon system

w h i c h f ea tu re t h e Tr a de m a rk s .

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32. The Trademarks are an integral part o f laint iffs branding as the Trademarks

quickly and succinctly advise the consumer of the safety o f food products and the results o f

research conducted by Plaintiffprior to affixing these Trademarks to certain foods. Plaintiff

brought these Trademarks and the unique icon system associated therewith to the food allergy

community and spent a great deal o f time building the brand and, most importantly, the trust that

attaches to the brand, the Trademarks and the research conveyed by the Trademarks. In addit ion

to laintiffs website, the Trademarks were and are featured prominently on Plaintiff s Facebook

and Twitter pages.

33. Ms. Elizondo was a speaker and panelist at events and gather ings including, inter

alia, the Natural Food Products Expo in Baltimore, Maryland, where she displayed laint iffs

Trademarks during a PowerPoint presentation made at the event.

34. The Trademarks were also featured in laint iffs print advertisements, including,

inter alia, a) a book insert flyer for a cookbook; b) the Celiac Disease Foundation quarterly

newsletter which reaches 15,000 people per month; c) the Five Points Farmers Market

Newsletter; d) Baby Guide newspaper; e) Tidewater Parents newspaper; f) National Autism

Conference Program; g) Thrive Magazine; h) Living Without Magazine, which, at the time the

ads ran in 2010 and 2011, was the only national publication specifically targeting readers who

need to adhere to a special diet lifestyle; i) Talk About Curing Autism Journey Guide and event

programs; and j) a web banner ad on Go Dairy Free, which gets millions of visitors each yearin

2010, when Plaintiff started running its ads, the website got over 350,000 hits by 120,000unique

visi tors per month and over 3 mil lion hits by over 1 mill ion unique visi tors for the year; k) Kids

With Food Allergies Support Net magazine; 1 Virginia Pilot newspaper; m) Tidewater Parents

magazine; and n) US Today.

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35. Plaintiff is t he sol e and exclusive owner o f the Trademarks each o f which is

inherently distinctive wa s used in intrastate and interstate commerce and conveys certain

information compiled by Plaintiffthat is intended for consumers to rely on and upon which

consumers actually rely thereby acquiring a secondary meaning.

36. Pla int ifffirst used its Trademarks in commerce in the Commonweal th of Virginia

when Plaintiffopened its brick and mortar store in Virginia Beach Virginia on or about May 3

2008 .

37. Plaintiffbegan using its Trademarks in interstate commerce on or about August

2008 when Plaintifflaunched its website and started selling products designated with Plaintiffs

Trademarks online to consumers throughout the country.

38. On or about March 30 2016 Plaintifffiled applications with the U.S. Copyright

Office to copyright 31 of Plaintiff s proprietary icons including the Trademarks. The copyright

c as e n um b er s f or e ac h th e n in e m a rk s t h a t c o n s ti tu t e the T r ad e m ar k s a re a s fol lows: 1

3255345829 1 3255345782 1 3255345876 1 3255345923 1 3255346017 1 3255346111 1

325534615 8 1 3257236346 an d 1 3257236393.

39. Plaintiffs Trademarks are inherently distinctive.

40. Plaintiffs Trademarks have become distinctive by acquiring a secondary meaning

as a result of use of the Trademarks the research and information conveyed by the Trademarks

and the reliance consumers have on the information conveyed by the Trademarks. In purchasing

products at Plaintiffs store and website consumers have relied on information and independent

research conveyed by the Trademarks that could be the difference between life an d death.

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25. Plaintiffs us e o f t h e Trademarks has been deliberate and continuous not

sporadic, casual, or transitory as Plaintiffstarted using the Trademarks on or about May 8, 2008,

and has used such Trademarks continuously through the present.

25. As of the date of the filing of this Complaint, Plaintiff has had 1,746,975 page

views o n P l a in t if fs websi te .

26. Plaint iffhas received countless e-mai ls from customers demonstra ting the t rust

they have in the Trademarks, the work and research conveyed by the Trademarks, appreciation

for Plaintiffs business model and icon system, and appreciation for helping them learn how to

interpret and use the Trademarks. Many customers communicated the trust they have in

Plaintiffs brand and icon system represented by the Trademarks directly to Plaintiff. Some of

the comments submitted by customers to Plaintiffand Ms. Elizondo include the following:

Loved your shop. So well laid ou t and labeled Marvelous. It is the way a health

o r ie n t ed s t or e shou ld b e l a id o u t.

I appreciate the fact that I can come here (website), click on his allergies and it narrows

down the options for me[.] Saves so much time [T]hank you, thank you, thank you[.]

The icons are incredibly helpful.

I just wanted to extend my sincere gratitude for your fantastic store and easy to shop

website. I just had my first shopping experience and was delighted at how easy it was to

shop as I have both celiac and food allergies.

It is really wonderful what you all do and I am so thankful to have found Navan Foods.

I just want to thank yo u for opening a store like this...I think it is going to be the answer

to a lot of our problems,

What a remarkable idea...your store is like a paradise to me.

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It was a great experience at your store yesterday very shopper friendly. Your labels

make the process so easy.

This will help other moms out[.]

There are a number of allergy type food sites out there but you are the only one which

s e e m s to d o m o s t th e work .

Wanted to let you know how much our family appreciates your store and what you do

fo r f a m il i es l i ke ours .

Just wanted your Navan Foods to know that what you do is greatly appreciated

so . . . .Thank Yo u

Thank you for what you do for my family and so many others .

I wanted to pass on to you my sincerest appreciation for doing all the work that has led

me to tears more than once in the past few weeks.. ..you have just made my life

easier....thank you thank you thank you[.]

I am so thankftil that you've opened up this store when [I] found out he had an egg

allergy [I] would be reading label after label to make sure he could eat the product.

27. Due to the inherent distinctiveness special characteristics and unique nature of

Plaintiffs Trademarks Plaintiffhas had many third parties contact Plaintiffabout opening

similar businesses. Specifically Plaintiff has had many third parties contact it about inquiring

about the proprietary nature of the Trademarks who developed the Trademarks and whether the

third parties could use the Trademarks themselves. Plaintiff responded in writing to all third

parties wh o requested use o f the Trademarks and asserted Plaintiffs sol e and exclusive

ownership and proprietary interest in the Trademarks by advising third parties that the

Trademarks were developed by Plaintiffand that Plaintiffs policy was to not allow anyone to

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use the Trademarks for any purpose whatsoever. However Defendants never contacted Plaintiff

to seek permission to use Plaintiffs trademarks. Due to the proprietary nature of the Trademarks

and the unique information conveyed through each icon that make up the Trademarks Plaintiff

has never authorized the use of the Trademarks to any third party.

I N FO R M T I O N B O U T D E F E N D A N T S A N D D E F E N D N T S W R O N G F U L A C T S

28. Defendant Spangler is an Ohio corporation that was formed on March 30 1946

29. Defendant Spangler is a family-owned private company that has been making

candy since 1906. Spangler Candy is headquartered in Ohio where it owns a manufacturing

facility covering 500 000 square feet and they also operate a co-manufacturing facility in Juarez

Mexico. Defendant Spangler s familiar brand names are Dum Dums Saf-T-Pops Spangler

Candy Canes Spangler Circus Peanuts Jelly Belly Smarties Sweethearts Werther s and Life-

Savers. They also make familiar select lollipop marshmallow candy cane and hard candy items.

They manufacture alone 12 million Dum Dums each day 2.7 million candy canes each day and

over 500 000 Saf-T-Pops per day.

30. Defendant Spangler sells and distributes their products nationally including inter

alia in the Commonwealth of Virginia through grocery drug stores mass market club stores

and candy wholesalers and sell their products through export brokers in many international

countries. Their products have a very high brand recognition.

31. Defendant Fisher is an Ohio corporation that was formed on May 22 1958.

32. Defendant Fisher is a brand strategy and package design agency that collaborated

and conspired with Defendant Spangler to effectuate the improper use and copying of the

Tr a d e m a r k s

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31. On or about April 1, 2014, Plainti ffd iscovered that Defendants were imlav^lly

using and copying the Trademarks without Plaintiffs knowledge, permission, a license or any

other authority to do so.

32. When Plaintiffs Trademarks first appeared on Plaintiffs website on or about

August 2008, there was a clear copyright designation on the bottom of every page on the

website. From the time Plaintiffs website was launched on or about late August 2008, the

website also contained a Terms and Conditions page that was clearly visible and accessible to

all v i s i to r s to th e webs i t e

33 On information an d belief Defendants stole and used the exact s ame Trademarks

from Plaintiffs website and copied them to Defendant Spangler s website at

www.spanglercandy.com, and for use in various Spangler marketing materials and Spangler

products, as alleged herein.

34. Defendants agreed to the terms and conditions posted on Plaintiffs website when

they used Plaintiffs website. Defendants were therefore subject to the Terms and Conditions

that appear on Plaintiffs website and committed violations of these Terms and Conditions

when they used Plaintiffs Trademarks without permission. Defendants knew or should have

known about the terms an d conditions on Plaintiffs website so Defendants had actual or, in the

alternative, constructive knowledge. Defendants also have their own similar terms and conditions

on their ovm websites, so at the very least, should have known about Plaintiffs terms and

cond i t ions

34. Defendants also have terms and condi tions on their websi tes so Pla in ti ffknew or,

at the very least, should have known about the terms and conditions on Plaintiffs website.

Defendants gave their assent to agree to the terms and conditions posted on Plaintiffs website

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when they used Plaintiffs website. When Ms. Elizondo accessed Defendant Spangler s website

on April 1 2014 she was shocked and upset to find that Defendants were using Plaintiffs

Trademarks on Defendant Spangler s website. The Trademarks being used by Defendants were

exactly identical to the Plaintiffs Trademarks. A screenshot of the Allergen Section of

Defendant Spangler s website dated April 1 2014 demonstrating Defendants unauthorized use

and copying of the Trademarks is attached hereto and incorporated herein as Plaintiffs Exhibit

D. A screenshot of the Saf-T-Pops Allergen Information Section of Defendant Spangler s

website demonstrating Defendants unauthorized use and copying of the Trademarks dated April

1 2014 is attached hereto and incorporated herein as Plaintiffs Exhibit E.

35. After Plaintiff discovered Defendant Spangler s improper use and copying of

Plaintiffs icons online. Plaintiff purchased a package of Dum Dums lollipops on or about April

1 2014. A photo of the Dum Dums lollipop package taken by Plaintiffshowing what the

package looked like on April 1 2014 and what Defendant Spangler s packaging still looks like

as of the date of the filing of this Complaint is attached hereto and incorporated herein as

Plaintiffs Exhibit F. This packaging contained icons that were not identical but still infringed

on Plaintiffs Trademarks as the icons are sufficiently similar to cause confusion. In two

instances the marks for eggs and milk the pictorial representation of those icons was identical to

Pla in t i ff s Trademarks

36. Some of the graphic depictions found in the Trademarks used by Defendant

Spangler remain exactly the same as those contained in Plaintiffs Trademarks while other icons

currently being used on Defendant Spangler s candy packaging is sufficiently similar to

Plaintiffs Trademarks to cause confusion in the marketplace and is a continuing infringement

and continued unauthorized use and unauthorized copying of Plaintiff s Trademarks.

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37. The icons which appear in Plaintiffs Exhibit F appear on the packaging o f the

following brands o f candy owned by Defendant Spangler: SweetNature Candy Canes, Saf-T-

Pops, Dum Dums, Dum Dums Holiday Pops, Dum Dums Gummy Snacks, Dum Dums

Valentine s Day Kit and D um D um s Candy Canes, Defendants use of such icons constitutes

infringement o f Plaintiff s Trademarks.

38. Defendants further engaged on the improper use and copying of the Trademarks

when they used and copied the underlying images contained in the Trademarks without

Plaintiffs consent, authorization or knowledge, and only changed the colors before using the

Trademarks in documents and marketing materials such as Defendant Spangler s Allergen-Free

Handout. A copy o f Defendant Spangler s Allergen Free Handout is attached hereto and

incorporated herein as Plaintiffs Exhibit G (the Handout ). Defendant s use o f such icons

constitutes infringement o f Plaintiff s Trademarks.

39. Defendants further engaged in the improper use and copying of the Trademarks

when they used and copied the images contained in the Trademarks and only changed the colors

of the individually trademarked icons without Plaintiffs consent, authorization, or knowledge in

Defendant Spangler s Allergen Brochure. A copy o f Defendant Spangler s Allergen Brochure is

attached hereto and incorporated herein as Plaintiffs Exhibit H (the Brochure ). Defendant s

use of such icons constitutes infringement of Plaintiff s Trademarks.

40. The Brochure was illegally copied and published on Defendant Spangler s

website without Plaintiffs knowledge, consent, or authorization. A screenshot taken o f

Defendant Spangler s website containing the Brochure is attached hereto and incorporated herein

a s l i n t i f f s E x h i b i t I.



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41. The Brochure and Defendant Spangler s website, both o f which improperly used

and copied Plaintiffs Trademarks, were used by Defendants to reach out to food allergy support

groups to make the food allergy community aware of Defendant s allergy free offerings. A letter

dated February 28, 2010, was posted on the Seacoast Food Allergy Group website informing the

group of Defendant Spangler s new website with a link to the Brochure attached. The identical

letter with the same link to the Brochure posted on February 24, 2010, to the Parents Having

Allergic Children Team Yahoo Group, a group whose website is funded by Food Allergy

Research and Education group which is located in McLean, Virginia.

42. Defendants marketing and promotion efforts obviously resulted in the

dissemination o f the Brochure and publicizing o f Defendant Spangler s website, both of which

contained unauthorized use and copying o f the Trademarks. Fo r example, on February 22, 2010,

someone posted a link to the Brochure on the Kansas City Northland Food Allergy Support

Group website with a message commending Defendant Spangler for the Brochure and

encouraging the group members to buy Defendant Spangler s products. Also, Defendants used

the Brochure at various events and fundraising including, inter alia, the Kids With Food

Allergies Support Group fundraiser.

43. Immediately upon discovering that Defendant Spangler was illegally using and

copying Plaintiffs Trademarks, Ms. Elizondo sent a message via twitter to Dum Dums

@dum_dums) on April 1, 2014, wherein she inquired as to why Defendant Spangler was using

Plaintiffs Trademarks. Plaintiffreceived a response instructing her to contact Defendant

Spangler through their e-mail address or 888 telephone number. Plaintiff responded by advising

Defendant Spangler that she already sent an e-mail to Defendant, dated April 1, 2014, wherein

she asserted her ownership o f the Trademarks she saw on Defendant Spangler s website and



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included her phone number in it. Plaintiffdid receive two calls from Defendant Spangler s

Trademarks Department thereafter.

44. Even after April 1 2014 Defendant Spangler continued to use modified icons on

its website marketing materials and packaging that infringe on Plaintiffs Trademarks because

such icons remain sufficiently similar to the Trademarks to cause confusion. Furthermore at

least two of the icons contain a graphical representation of items contained in the Trademarks

that is still identical to the images in Plaintiffs Trademarks and therefore Defendants are

continuing to infringe on Plaintiffs trademark and copyright rights.

46. A post made to the Raleigh Cel-Kids Celiac Support Group on or about

November 11 2009 that infringed on Plaintiffs Trademarks is attached hereto and incorporated

herein as Plaintiffs Exhibit J. At the time the link to Defendant Spangler s main allergen page

was posted in the aforementioned Kansas City Seacoast and Yahoo Groups the Trademarks in

Exhibit J are what appeared on Defendant Spangler s website.

47. While it is difficult for Plaintiffto state precisely when Defendant began

improperly using and copying Plaintiffs Trademarks information obtained on

waybackmachine.org provides at least some information.

48. On information and belief waybackmachine.org demonstrates that Defendant

Spangler s main allergen webpage that contained the Trademarks was first indexed on or about

September 2010. A post on Dum Dums Facebook page announcing their new packaging that

conta ined Pla in t i f f s Trademarks is da ted June 2011

50. Plaintiff spent a great deal of time and money building its brand as represented in

their Trademarks and most important the trust that is attached to the brand and the Trademarks.

This trust is crucial for a business in the food allergy community as a small misstep could mean



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life or death to the consumer. Defendant s unauthorized use and duplication of Plaintiff s

trademark and copyrights diminishes this trust and has caused confusion in the marketplace.

51. Defendant Spangler s specific use of Plaintiffs Trademarks has helped Spangler

achieve marketing gains with consumers and members of the allergy free community. There are

many articles and blogs online that discuss Defendant Spangler s allergy free products which

focus on the Trademarks on the back of Defendant Spangler s packaging where the Trademarks

are located and not the fronts of the packages where Defendant Spangler makes a simple allergy

f ree d e c l a r a t i o n .

52. The use of the Trademarks by Defendants are either exactly the same as that of

Plaintiffor, in the cases of the altered Trademarks, sufficiently similar that it is likely to deceive

or to cause confiision or mistake on the part of the average purchaser.

53. Defendants infringed on Plaintiffs copyright in the Trademarks by both copying

the material and copying a substantial portion of the protected work.

54. Defendants unauthorized use o f Plaintiff s Trademarks and the various al tered

marks, are either identical or sufficiently similar such that the resemblance between the marks is

so close that it is likely to confuse a prospective buyer or customer exercising ordinary caution in

his or her dealings.

55. Defendants continued unauthorized use and copying of the Trademarks was and

still is willful, malicious, fraudulent, intentional, deliberate, an d carried ou t in ba d faith.

56. Plaintiffs Trademarks as used by Plaintiffconstitute a trade dress since it refers

to characteristics of the visual appearance of the product at issue as all products sold in Plaintiffs

store and website were assigned Trademarks ( Trade Dress )

I N J U R Y T O P L I N T I

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57. Defendants wrongful and unauthorized use and replication of laintiffs

Trademarks and similar versions thereof in connection with the sale offering for sale

distribution and advertising o f goods has caused confusion mistake and deception on the part

o f consumers and members o f the allergy free community as to the products using laintiffs

Trademarks the ownership o f Platinfiffs Trademarks and the association between Plaintiff and

Defendant. Defendants unlawful acts have irreparably injured Plaintiff by diminishing and

damaging laintiffs reputation and the reputation o f laintiffs Trademarks and their hard-

earned goodwill.

58. Defendants wrongful and unauthorized use and replication of laintiffs

Trademarks and similar versions thereof have caused damage to Plaintiff because they have

misled and are likely to continue to mislead the public and the allergy fi community into

believing that Defendant Spangler s business and activities are authorized by attributable to

sponsored by or associated with. Plaintiffor otherwise were the original property o f Defendant.

59. Defendants wrongful and unauthorized use and replication of Plaintiffs

Trademarks and similar versions thereof constitutes unfair competition and unfair and deceptive

trade practices that have adversely affected Plaintiff financially in the form of lost profits.

60. Defendants wrongful and unauthorized use and replication of Plaintiffs

Trademarks and similar versions thereof have caused irreparable damage to Plaintiffs personal

and business reputation resulting in lost income.

61. Defendants without Plaintiffs authority consent or knowledge commenced

using and replicating laintiffs Trademarks and sufficiently similar versions thereof in

commerce thereby diluting laintiffs Trademarks by giving rise to an association between the

marks that is likely to impair the distinctiveness o f the Trademarks and harm the reputation o f



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the Trademarks. Defendants unauthorized use o f the Trademarks has and is likely to cause

dilution by blurring and dilution by tarnishing.

62. Plaintiffhas properly applied for registration with the Copyright Office o f each o f

the Trademarks to secure Plaintiffs ownership of the copyright to the Trademarks. By copying

constituent original elements of the Trademarks that are original Defendants have encroached

upon the exclusives right conferred by Plaintiffs copyright by reproducing the Trademarks

preparing derivatives o f the Trademarks distributing copies o f the Trademarks and by

displaying the Trademarks publicly in marketing materials and on product packaging in interstate

o m m e r e

63. Through the unauthorized use o f Plaintiffs Trademarks in commercial

advertising promotion and packaging. Defendants have misrepresented the nature

characteristics qualities and origin o f Defendant s goods and commercial activities by using the

goodwill and consumer trust in Plaintiffs Trademarks without Plaintiffs authority or consent.

Defendants have made a false and misleading description o f fact and representation o f fact in

commercial advertising that is material and actually deceives or has the tendency to deceive a

substantial segment o f the consumers who purchase allergy free products amd Plaintiff has been

or is likely to be injured as a result of Defendant s misrepresentation either by direct diversion

of sales or by a lessening o f goodwill associated with Plaintiffs Trademarks.

64. Defendants intentional wrongful negligent tortious reckless and unauthorized

use and replication of Plaintiffs Trademarks and similar versions thereof has negatively

impacted Plaintiffs relationships with manufacturers customers and third parties in the allergy

free community thereby interfering with Plaintiffs business relations opportunities

expectancies and prospective economic advantages thereby resulting in damage to Plaintiffs



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e c o n o m i c in teres ts

C O U N T I

Federal Infringement of an Unregistered Tra de ma rk a nd False Designation of

Origin False or Misleading Description of F ac t a nd False or Misleading Representation ofFact under Section 43 a) 1) A) of th e Lanham Act 15 U.S.C. § 1125 a) 1) Asserted byPlaintiff Against Defendants

65. Plainti ff repeats and realleges every allegation set forth in Paragraphs 1 through 64

above

66. Plaintiff s Trademarks are inherently dist inctive designations for allergy free food

items and have acquired recognition and secondary meaning in and among the general public and

the allergy free community as a safe, trusted and dependable designation that conveys certain

i nf o rm a ti on t o t h e c o ns u m er

67. By virtue of Plaintiffs longstanding and extensive use of the Trademarks in

interstate commerce, the Trademarks have come to serve as a designation of origin for Plaintiffs

research on food ingredients and production, and have become valuable symbols of the goodwill

Plaintiffhas labored to acquire over the years.

68. The actions of Defendants in unlawfully using the Trademarks are likely to cause

confusion, or to cause mis take , or to deceive as to the affil ia tion, connect ion, or associa tion of

each Defendant, and their commercial activities, by or with Plaintiff, and thus constitute

trademark infnngement, false designation of origin, false or misleading description of fact, and

false or misleading representation of fact and unfair competition in violation of Section 43 a) of

the Lanham Act, 15 U.S.C. § 1125 a) l) A)69.

69. The actions of Defendants in unlawfully using the Trademarks are likely to cause

confusion, or to cause mistake, or to deceive or as to the origin, sponsorship, or approval of

Defendant s goods, services, or commercial activities by another person.



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70. The actions of Defendants in unlawfully using the Trademarks in commercial

advertising and promotion as detailed herein, have misrepresented the nature, characteristics, and

qualities, of Defendant s goods, services, and commercial activities.

71. Defendants and their activities, as described above, have damaged the reputation

of Plaintiff, and the reputation, and goodwill of Plaintiff s Trademarks and the value thereof 72.

72. Defendants wrongful acts have irreparably injured Plaintiff and will continue to

do so unless and until such acts are enjoined by this Cour t under 15 U.S.C. § 1116. Pla in ti ff has

no adequate remedy at law.

O U N T

Federal Infringement of an Unregistered Trade Dress an d False Designation ofOrigin, False or Misleading Description of Fact and False or Misleading Representation ofFact u nd er Section 43 a) 1) A) of t he L an ha m Act 15 U.S.C. § 1125 a) 1) Asserted byPlaintiff Against Defendants

73. Plaintiff repeats and realleges every allegation set forth in Paragraphs 1 through 72

above .

74. Plaitiffs Trade Dress is inherently distinctive.

75. Plaintiffs Trade Dress is has acquired secondary meaning so that it is perceived as

identifying and distinguishing the source of the goods.

76. Pla in t i ff s Tr ad e D r e ss is n o n functional.

77. Defendants unauthorized use and copying of the Trademarks is likely to cause

confucsion in the marketplace and amongt the relevant purchasing public.

O U N T

Federal Unfa i r Competition of Trademarks under Sect ion 43 a of the Lanham Act15 U.S.C. § 1125 a) Asserted by Plaintiff Against Defendants


25



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above

79. Defendants have used the Trademarks without permission in interstate commerce

in connection with the provision of goods or services, including the promotion and sale of

various brands of Defendant Spangler s candy.

80. Defendants use of Plaintiffs Trademarks is likely to cause confusion, in part

because third parties were likely to believe that Defendant Spangler owned or licensed Plaintiffs

Trademarks which it di d not

81. By continuing to utilize the Trademarks, Defendants have impaired the

distinctiveness of the Trademarks, and unfairly competed with Plaintiff; and caused irreparable

harm to the reputation and goodwill of Plaintiffs Trademarks and the business reputation of

P l a i n t i f f

C O U N T I V

Federal Unfair Compet i tion of Trade Dress under Section 43 a) of th e Lanham Ac t15 U.S.C. § 1125 a) Asserted by Plaint iff Against Defendants


above

83. Plaintiffs Trade Dress has aquired secondary meaning.

84. Defendants unauthorized use and copying of the the Trade Dress or sufficiently

similar versions of the Trade Dress has caused and is likely to cause confusion, deception and

mistake by creating the false and misleading impression that Defendant Spangler s goods are

approved by Plaintiff as a result of the Trade Dress attached to said goods, or that Defendant

Spangler s goods are affiliated, connected or association with Plainitff, or have the sponsorship,

endorsement or approval of Plaintiff



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85. Defemdants have made false misrepresentations, false descriptions, and false

designations of origin of Defendant Spangler s goods in violation of 15 U.S.C. § 1125 a), and

Defendants act ivi ties have caused and, unless enjoined by this Cour t, will cont inue to cause a

likelihood of confusion and deception of the trade and publ ic and injury to Plaintiffs goodwill

and reputation as symbolized by the Trade Dress for which Plaintiff has no adquate remedy at

l aw

86. Defendants conduct has caused and is likely to continue causing, substantial

injury to the public and to Plaintiff.

O U N T Y

Common Law Trademark Infringement and Unfa ir Competition under VirginiaCommon La w Asserted by Plaint iff Against Defendants

87. Plaintiff repeats and realleges every allegation set forth in Peiragraphs 1

through 86 above.

88. The aforesaid acts of Defendants constitute common-law trademark infnngement,

misappropriation of Plaintiff s goodwill, and unfair competition under Virginia common law.

89. Defendants activities, as described above, have damaged the reputation and

goodwill held by the Trademarks and the value thereof. Defendants wrongful acts have

irreparably injured Plainti ff as set forth above, and will continue to do so unless and until such

acts are enjoined by this Court .

90. Plaintiff was the first party to use the Trademarks and thus has a common law

right to prevent others from using the Trademarks or from using confusingly similar Trademarks.

O U N T V

Common Law Trademark Infringement and Unfair Competit ion under OhioCommon Law Asserted by Plaint i ff Against Defendants

7



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a b o v e .

O U N T V

Unfair Competition under Virginia s Consumer Protect ion Act Virginia Stat . Ann.§ 59.1-200 A) Asserted by Plaintiff Against Defendants

92. Plaintiffrepeats and realleges every allegation set forth in Paragraphs 1 through 91

above .

93. Defendants violated § 59.1-200 A) 2) of Virginia s Consumer Protection Act by

misrepresenting the source, sponsorship, approval, or certification of goods or services.


misrepresenting the affiliation, connection, or association of the supplier, and of the Defemdant s

goods or services, with Plaintiff.


misrepresenting that goods or services have certain quantities, characteristics, ingredients, uses, or

benefits since specific information is converyed to the consumer through the unauthorized use of

Pla in t i ff s Trademarks .


misrepresenting that goods or services are of a particular standard, quality, grade, style, or model

since specific information is converyed to the consumer through the unauthorized use of

Pla in t i ff s Trademarks .

97. Defendants, through the unauthorized use and reproduction of Plaintiffs

Trademarks, engaged in an intentional misrepresentation designed to cause consumers to believe

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that Plaintiff was endorsing the safety of the goods through use of the Trademarks and further

misled consumers by improperly benefitting from the goodwill built up and attached to the

Trademarks as a resul t o f P l a i n t i f f s effor ts

C O U N T V I I I

Deceptive Trade Practices under Ohio Law O.R.C. § 4165.02 A), Asserted byPlaintiff Against Defendants

98. Plaintiffrepeats and realleges every allegation set forth in Paragraphs 1 through 97

a b o v e


Trademarks, violated O.R.C. § 4165.02 A) 2) by causing the likelihood of confusion or

misunderstanding as to the source, sponsorship, approval, or certification of Defendant s goods.


Trademarks, violated O.R.C. § 4165.02 A) 3) by causing a likelihood of confusion or

misunderstanding as to affiliation, connection, or association with, or certification by Plaintiff.


Trademarks, violated O.R.C. § 4165.02 A) 7) by representing that goods or services have

sponsorship, approval, characteristics, ingredients, uses and benefits that they do not have since

the use of Plaintiffs Trademarks are intended to convey specific information to the consumer.


Trademarks, violated O.R.C. § 4165.02 A) 2) by representing that Defendant has a sponsorship,

approval, status, affiliation, or connection with Plaintiffthat Defendant does not have.

C O U N T I X

Dilution o f a n Unregistered Trademark under t he Federal Trademark Dilution Ac t 15 U.S.C. § 1125 c) Asserted by Plainti ff Against Defendants



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103. Plaintiff repeats and realleges every allegation set forth in Paragraphs 1 through

1 2 a b ov e

104. Pla in ti ff s Trademarks were famous since they were used in interstate commerce

and both featured and advertised in various magazines, newspapers and trade journals including

USA Today.

105. Defendants, without Plaintiffs authori ty, consent or knowledge, commenced

using Plaintiffs Trademarks in commerce thereby diluting Plaintiffs Trademarks.

1 6 T h a t Defendan t s h a ve u s ed the ident ical Tr a de m a rk s i n c o m m e rc e and Defendan t s

have also used modified versions of the Trademarks that give rise to an association between the

marks that is likely to impair the distinctiveness of Plaintiff s Trademarks.

1 7 T h a t D efendants have used the ident ical T rad em arks in co m m erce an d

Defendants have also used modified versions of the Trademarks that give rise to an association

between the marks that is likely to harm the reputation of Plaintiffs Trademarks.

108. Defendants use of Plaintiff s Trademark and sufficiently similar versions thereof

in commerce is likely to cause dilution by blurring since Defendant s use impairs the

distinctiveness o f Pla in t i ff s Tr ad e ma rk s w h ic h w e re central to Pla in t i ff s business

109. Defendants use of Plaintiffs Trademarks and sufficiently similar versions

thereof in commerce is likely to cause dilution by tarnishing as Defendant s use harms the

reputation of Plaintiff s Trademarks as it affects consumer s trust in Plaintiffs Trademarks.

C O U N T X

Federal Copyright Infringement Under th e Copyright Ac t 17 U.S.C. § 501 a)) Asserted byPlaintiff Against Al l Named Defendants



31/44


1 9 above

111. Pla in ti ff has applied for copyr ight regist ra tion with the Copyright Office of each

o f i t s Trademarks i n E x hi bi t B

112. Defendants have copied constituent, original elements of the Plaintiff s copyrights

that are original.

113. Defendants have encroached upon the exclusives right conferred by Plaintiffs

copyrights by reproducing the Trademarks, preparing derivatives of the Trademarks, distributing

copies of the Trademarks, displaying the Trademarks publicly in marketing materials and on

product packaging in interstate commerce.

O U N T X

False Advertising under Section 43 a) of th e Lanham Ac t 15 U.S.C. § 1125 a) 1) B)Asserted by Plaintiff Against Defendants


1 13 a b ov e

115. Defendants have used the Trademarks without permission in interstate commerce

in connection with the provision of goods and/or services, including the promotion, advertising

and Trade Dress of various brands of Defendant Spangler s candy.

116. Through the unauthorized use of the Trademarks in commercial advertising,

promotion and packaging. Defendants have misrepresented the nature, characteristics, qualities,

and origin of Defendant s goods and commercial activities by using the goodwill and consumer

trust in the Trademarks without Plaintiffs authority or consent.

117. Defendant made a false and misleading description of fact and representation of

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fact in commercial advertising by improperly using the Trademarks in advertising marketing

materials and product packaging as Plaintiffs practice of affixing the Trademarks on certain

packaging is intended to inform the consumer as to the safety o f the products based on Plaintiffs

independent research and is relied on by the consumer as a result o f the goodwill Plaintiff has

built in the allergy free community.

118. Defendants misrepresentation are material in that it is likely to influence the

consumers purchasing decisions as Plaintiffs customers rely on the Trademarks for their

physical health.

119. Defendants misrepresentations actually deceived or had the tendency to deceive a

substantial segment of the consumers who purchase allergy free products.

120. Defendants placed the false or misleading statements in interstate commerce as

s t a t e d h e r e i n

121. Plaintiff has been or is likely to be injured as a result of Defendants

misrepresentation either by direct diversion of sales or by a lessening o f goodwill associated

w i t h t h e T r a d e m ar k s

C O U N T X I I

False Advertising under Va. Code § 18.1-216 Asserted by Plaintiff AgainstD e f e n d a n t s


2 a b o v e

123. Defendants with the intent to sell and dispose of Defendant Spangler s goods to

the public in the Commonwealth of Virginia and throughout the country made published

disseminated circulated and placed or caused to be made published disseminated circulated and



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placed the Trademarks before the pubHc in marketing materials promotional materials

newspapers websites various publications and on the packaging of Defendant Spangler s goods

and advertisements regarding goods offered to the public.

124. As a result of Defendants unauthorised use and reproduction o f Plaintiffs

Trademarks Defendant s advertisements contained untrue assertions representations and

statements of fact that were to be conveyed through the consumer through the Trademarks

namely that the products were in conformity with the usual information conveyed by Plaintiffs

Tr ad e ma rk s a n d t h at P l a in t if f w a s s o m e h o w assoc ia t ed with Defendan t

125. Defendants advert ising was untrue decept ive an d misleading and utilized to

induce the public to purchase Defendant Spangler s candy products

O U N T X

Tor tious Inter fe rence with Business Relations Opportunities Expectancy an dProspect ive Economic Advantage Asserted by Plaintiff Under Virginia Common LawAgainst Defendants


125 above

127. Plaintiff had the existence of a business relationship and expectancy with a

probability of a prospective economic advantage to Plaintiff as many consumers relied on

Plaintiffs Trademarks to purchase products through Plaintiff

128. Defendants had knowledge of the business relationships opportunities and

prospective economic advantage Plaintiffhad with m m rs of the allergy free community as a

result of being one of the first brick and mortal allergy-free stores in the nation and as a result of

the interstate commerce Plaintiffengaged in.

129. Defendants acted intentionally when it used Plaintiffs Trademarks without

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Plaintiffs knowledge, consent or authority thereby diminishing the trust and value consumers

had in Plaintiffs Trademarks and business model thereby adversely affecting Plaintiffs sales,

business relations, opportunities, prospective economic advantage and expectancy, all of which

Plaintiff was commercially reasonable to anticipate.

130. There is a reasonable certainty that, absent Defendants misconduct. Plaint iff

would have realized the economic advantage, opportunities and expectancy.

131. As a direct and proximate result of these tortious acts, as described above.

Plaintiffs industry reputation, and relationships with current and prospective customers and

industry contacts have been irreparably damaged, resulting in a loss of sales and other damage to

P l a i n t i f f s economic in teres ts .

C O U N T X I V

To rt io us I nt er fe re nc e w ith Business Relat ions, Opportunities, Expectancy andProspective Economic Advantage Asserted by Plaintiff Under O hi o C om mo n L aw AgainstA l l D e f e n d a n t s

132. Plaint iff repeats and realleges every allegation set forth in Paragraphs 1 through

13 1 a b o v e .

C O U N T X V

Breach of Contract under Virginia and/or Ohio Common La w Asserted by Plaintiffan d Derivative PlaintiffAgainst Defendants


1 32 abo ve.

134. Defendan ts v iola ted the U se o f th e Navan Foods Site section o f th e Ter m s a nd

Conditions page, contained on Navan Foods website, which states as follows: The Navan

Foods Site contains copyrighted material, trademarks and other proprietary information



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including but not limited to text software logos photos video graphics music and sound and

the entire contents of the Navan Foods Site are copyrighted as a collective work under the United

States copyright laws. Navan Foods L.L.C. is the owner o f the copyright in the entire Navan

Foods Site. Navan Foods LLC owns a copyright in the selection coordination arrangement and

enhancement of such content as well as in the content original to it. Each third party content

provider owns the copyright in content original to it. You may not modify publish transmit

display participate in the transfer or sale create derivative works or in any way exploit the

content of the Navan Foods Site or any portion of it. Except as otherwise expressly permitted

under copyright law you may not copy redistribute publish display or commercially exploit

any material from the Navan Foods Site without the express permission o f Navan Foods LLC

and the copyright owner. In the event of any permitted copying redistribution or publication o f

material from the Navan Foods Site no changes in or deletion o f author attribution trademark

legend or copyright notice shall be made. You acknowledge that you do not acquire any

ownership rights by downloading copyrighted material. Without limiting the generality of the

foregoing you agree that any text photo graphic audio and/or video on the Navan Foods Site

shall not be broadcast rewritten for broadcast or publication or redistributed directly or indirectly

in any media. Neither these materials nor any portion thereof may be stored in a computerexcept

for personal and non-commercial use.

1 3 5 D e f en d a nt s v i o la t ed t he T r ad em a rk s s e c t i o n th e T erm s a nd C on di ti on s

page contained on Navan Foods website which states Any trademarks logos service marks

and trade names used on the Navan Foods Site are the property of their respective owners

including in some instances Navan Foods LLC and may not be used in connection with any

product or service or in any manner whatsoever without the prior written permission of Navan

3 5



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Foods LLC. The Terms and Conditions page also states that all violations are subject to the

laws of the Commonwealth of Virginia and that attorney s fees and costs can be recovered from

a party who violates the terms and conditions as stated therein.

136. The Terms and Conditions located on Plaintiffs website were easily visible and

accessible to all visitors to t he websi te an d therefore Defendant s had or should have had

knowledge of these Terms and Conditions.

137. Defendants have breached these Terms and Condi tions by copying, using and

infringing Plaintiffs Trademarks and copyrights without permission. As a result of Defendants

breaches of contracts, the Plaintiff has suffered damages caused by the breaches, including but

not l imi ted to loss of income, damage to reputation, damage to the Trademarks, dilution of the

Trademarks

C O U N T X V I

Civil Conspiracy under Virginia Common Law Asserted by Plaintiff AgainstD e f e n d a n t s

138. Plaintiff and Derivative Plaintiff repeat and reallege every allegation set forth in

Paragraphs 1 through 137 above.

139. Defendants have agreed to participate in conspiracies to engage in each of the

other Counts as pled herein.

140. The unlawful overt acts committed by Defendants as alleged herein have resulted

in injuries to Plaintiff, in furtherance of the common scheme as alleged herein.

C O U N T X V I I

Civil Conspiracy under Ohio Common Law Asserted by Plaintiff AgainstD e f e n d a n t s

141. Plainti ff and Derivative Plaint iff repeat and reallege every allegation set forth in



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Paragraphs 1 through 140 above.

J U R Y T R IA L D E M A N D E D

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby demands a

trial by jury on any issue triable of r ight by a jury.

P R A Y E R F O R R E L I E F

WHEREFORE, Plaint iff prays that this Court enter judgment in its favor on each and

every Count set forth above, and award it reliefincluding, but not limited, the following:

A. An Order declaring that Defendants use of Plaintiffs Trademarks and altered but

sufficiently similar and/or confusing derivations thereof and/or Plaintiffs Trade Dress was an

unlawful infringement and constitutes unfair competition under Section 43 a) of the Lanham Act

15 U.S.C. § 1125 a) , Virginia common l w and/or Ohio common law;

B. An Order declaring that Defendants use of Plaintiffs Trademarks and altered but

sufficiently similar and/or confusing derivations thereof and/or Plaintiffs Trade Dress was an

unlawful infringement and constitutes False Designation of Origin, False or Misleading

Description of Fact and/or False or Misleading Representation of Fact under Section 43 a) 1) A)

of the Lanham Act 15 U.S.C. § 1125 a) 1);

C. An Order declaring that Defendants use of Plaintiffs Trademarks and altered but

sufficiently similar and/or confusing derivations thereof constitutes Unfair Competition under

Virginia s Consumer Protection Act, Virginia Stat. Ann. § 59.1-200 A);

D. An Order declaring that Defendants use of l intiffs Trademarks and altered but

sufficiently similar and/or confusing derivations thereof constitutes Deceptive Trade Practices

under Ohio Law, O.R.C. § 4165.02 A);

E. An Order declaring that Defendants use of Plaintiffs Trademarks and altered but



38/44

sufficiently similar and/or confusing derivations thereof constitutes Dilution of an Unregistered

Trademark under the Federal Trademark Dilution Act 15 U.S.C. § 1125 c));

F. An Order declaring that Defendants unauthorized reproduction of Plaintiffs

copyrights which include the Trademarks) and altered but sufficiently similar and/or confusing

derivations thereof constitutes Federal Copyright Infringement Under the Copyright Act 17

U.S.C. § 501 a));

G. An Order declaring that Defendants unauthorized use of Plaintiffs Trademarks

and altered but sufficiently similar and/or confusing derivations thereof constitutes False

Advertising under Section 43 a) of the Lanham Act 15 U.S.C. § 1125 a) 1) B);

H. An Order declaring that Defendants unauthorized use o f Plaintiffs Trademarks

and altered but sufficiently similar derivations thereof constitutes False Advertising under Va.

Code § 18,1-216;

I. An Order declaring that Defendants unauthorized use of Plaintiffs Trademarks

and altered but sufficiently similar and/or confusing derivations thereof constitutes Tortious

Interference with Business Relations, Opportunities, Expectancy and Prospective Economic

Advantage Under Virginia Common Law and/or Ohio Common Law;

J. An Order declaring that Defendants unauthorized use and reproduction of

Plaintiffs Trademarks and altered but sufficiently similar and/or confusing derivations thereof

constitutes a Breach of Contract under Virginia and/or Ohio common Law;

K. An Order declaring that Defendants unauthorized use and reproduction of

Plaintiffs Trademarks and altered but sufficiently similar derivations thereof constitutes Civil

Conspiracy under Virginia C om mo n L aw and/or Ohio Common Law to commit all of the

unlawful act ions as asserted in t h e C o un ts herein;



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L. A preliminary and permanent injunction issued under 15 U.S.C. §1116 enjoining

Defendants and their respective employees, agents, officers, directors, members, shareholders,

subsidiaries, related companies, affiliates, and all persons in active concert or participation with

any of them from using or otherwise reproducing Plaintiffs Trademarks or sufficiently similar

and/or confusing derivations thereof under 15 U.S.C. §1116;

M. An Order issued and judgment entered under 15 U.S.C. §1117 a) wherein

Plaintiff shall be entitled to recover Defendants profits associated with the sale from all products

wherein Defendants used Plaintiffs Trademarks, and altered but suffic ient ly simi lar and/or

confusing derivations thereof;

N. An Order issued and judgment entered under 15 U.S.C. §1117 a) wherein

Plaintiff shall be entit led to recover all damages sustained by Plaintiff as a result of Defendants

improper use of Plaintiffs Trademarks, and altered but sufficiently similar and/or confusing

derivations thereof;

O, An Order issued and judgment entered under 15 U.S.C. §1117 a) wherein

Plaintiff shall be entitled to recover all costs of the action incurred by Plaintiff as a result of

Defendants improper use of Plaintiffs Trademarks, and altered but sufficiently similar and/or


P. An Order issued and judgment entered under 15 U.S.C. §1117 a) wherein

Plaintiff shall be entitled to recover reasonable attorney s fees from Defendants a result of

Defendants improper use of Plaintiffs Trademarks, and altered but sufficiently similar and/or


Q. A temporary and final injunction issued under 17 U.S. Code § 502 enjoining

Defendants and their respective employees, agents, officers, directors, members, shareholders.



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subsidiaries related companies affiliates and all persons in active concert or participation with

any of them from copying or otherwise reproducing Plaintiffs Trademarks or sufficiently similar

and/or confusing derivations thereof;

R. An Order issued and judgment entered under 17 U.S.C. §504 wherein Plaintiff

shall be ent it led to recover all costs of the action incurred by Pla inti ff as a resul t of Defendants

improper copying and reproduction of Plaintiffs Trademarks and altered but sufficiently similar


S. An Order issued and ju gm nt entered under 17 U.S.C. §504 wherein Pla in ti ff

shall be entitled to recover all actual damages incurred by Plai nt iff as a result of Defendants

improper copying and reproduction of Plaintiffs Trademarks and altered but sufficiently similar


T. An Order issued and ju gm nt entered under 17 U.S.C. §504 wherein Pla in ti ff

shall be entitled to recover profits of the Defendants from the sale of and of Defendant Spangler s

goods that featured the improper copying and reproduction of Plaintiffs Trademarks and altered

but sufficiently similar and/or confusing derivations th r of or that are otherwise attributable to

Defendants copyright infringement;

U. An Order issued and judgment entered under 17 U.S.C. §505 wherein Plaintiff

shall be entitled to recover full costs and attorney s fees from the Defendants as a result of


V. An Order issued and judgment entered wherein Plaintiff shall be entitled to

recover actual damages and disgorgement of profits for copyright infringement from the

Defendants as a result of Defendants copyright infringement;

W. An Order issued and ju gm nt entered under 17 U.S.C. §505 wherein Pla in ti ff



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shall be entitled to recover full costs and attorney s fees from the Defendants as a result of


X. A preliminary and permanent injunction be entered under Va. Code § 59.1-203

wherein Defendants must refrain from all of the actions which constitute violations of any

section of the Virginia Consumer Protection Act as pled herein;

Y. An Order issued and judgment entered under Va. Code § 59.1-206 wherein the

Attorney General, the attorney for the Commonwealth, or the attorney for the county, city, or

town may recover for the Literary Fund, upon petition to the court, a civil penalty of not more

than 2,500 per wailful violation of the Virginia Consumer Protection Act;

Z. An Order issued and judgment entered under Va. Code § 59.1-206 wherein the

Attorney General, the attorney for the Commonwealth , or the at torney for the county, city, or

town may recover for the Literary Fund, upon petition to the court, a civil penalty of not more

than 2,500 per willful violation of the Virginia Consumer Protection Act;

AA. An Order issued and judgment entered under Va. Code § 59.1-206 wherein the

Attorney General, the attorney for the Commonwealth, or the attorney for the county, city, or

town any applicable civil penalty or penalties, costs, reasonable expenses incurred by the state or

local agency in investigating and preparing the case not to exceed 1,000 per violation, and

attorney s fees to be paid into the general fund of the Commonwealth or of the county, city, or

town which such attorney represented;

BB. An Order issued and judgment entered under Va. Code § 59.1-68.3 wherein

Plaintiff shall be entitled to recover damages, attorney s fees and court costs from the Defendants

as a result of Defendants actions which constitute False Advertising under the Virginia Code as

pled herein;



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CC. A temporary and final injunction issued under Va. Code § 18.2-245 enjoining



any of them from using, copying or otherwise reproducing Plaintiffs Trademarks or sufficiently

similar and/or confusing derivations thereof as a result of Defendants* actions which constitute

False Advertising under the Virginia Code;

DD. A temporary and final injunction issued under O.R.C. § 4165.02 A) 1) enjoining



any of them from using, copying or otherwise reproducing Plaintiffs Trademarks or sufficiently

similar and/or confusing derivations thereof as a result of Defendants actions which constitute

Deceptive Trade Practices under Ohio State law;

EE. An Order issued and judgment entered under O.R.C. § 4165.02 A) 2) wherein

Plaintiff shall be entitled to recover actual damages from the Defendants as a result of

Defendants Deceptive Trade Practices under Ohio law;

FF. An Order issued and judgment entered under O.R.C. § 4165.02 B) wherein

Plaintiff shall be entit led to recover reasonable attorney s fees from the Defendants as a result of

Defendants Deceptive Trade Practices under Ohio law;

GG. A temporary and final injunction issued enjoining Defendants and their respective

employees, agents, officers, directors, members, shareholders, subsidiaries, related companies,

affiliates, and all persons in active concert or participation with any of them from using, copying

or otherwise reproducing Plaintiffs Trademarks or sufficiently similar and/or confusing

derivations thereof as a result of Defendants infringement of Plaintiffs Trademarks which



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constitutes unfair trade practices under federal law as pled herein;

HH. An Order issued and judgment entered under 0 R C § 4165.02 B) wherein

Plaintiff shall be entit led to recover reasonable attorney s fees from the Defendants as a result of

Defendants* Deceptive Trade Practices under Ohio law;

II. Plaintiff is entitled to injunctive relief and to recover Defendant s profits, actual

damages, enhanced profits and damages, costs and reasonable attorney s fees pursuant to 15

U.S.C. § § 1125 a), 1116 and 1117. as a result of Defendants wrongful Trademarks infnngement

that constitute unfair competition;

JJ. An Order directing Defendants to file with this Court and serve on Plaintiffs

attorneys, thirty 30) days after the entry of any permanent injunction, a report in writing and

under oath setting forth in detail the manner and form in which they have complied with the

injunction;

KK. An Order requiring Defendants to pay Plaintiff and Derivative Plaintiff

compensatory damages and punitive damages in an amount a

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