breathe ecigs corp v. breathe llc

1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

KNOXVILLE DIVISION BREATHE ECIGS CORP, ) )

Plaintiff, ) )

v. ) Civil Action No. ________________ )

BREATHE LLC, ) )

Defendant. ) )

COMPLAINT Plaintiff Breathe eCigs Corp (hereinafter “Plaintiff”), in support of its claims against

Defendant Breathe LLC (hereinafter “Defendant”), alleges the following:

PARTIES

1. Plaintiff, Breathe eCigs Corp, is a corporation of the State of Nevada having its

principal place of business at 9921 Lani Lane, Knoxville, Tennessee 37932.

2. On information and belief, Defendant, Breathe LLC, is a Florida limited-liability

company having a principal place of business located at 3050 Dyer Boulevard, No. 106,

Kissimmee, Florida 34741. On information and belief, Defendant also maintains places of

business at 8167 Main Street, Suite 206, Ellicott City, Maryland 21043, and 1400 Mount

Jefferson Road, Suite 7, West Jefferson, North Carolina, 28694.

JURISDICTION AND VENUE

3. This is an action for trademark infringement arising under common law, for unfair

competition arising under 15 U.S.C. § 1125(a) and at common law, for a Declaratory Judgment

Case 3:15-cv-00345-TAV-HBG Document 1 Filed 08/10/15 of 11 PageID #: 1

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that United States Trademark Registration No. 4,633,887 is not infringed by Plaintiff, and for

cancellation of United States Trademark Registration No. 4,633,887.

4. This Court has subject matter jurisdiction over Plaintiff’s claims for trademark

infringement, unfair competition, declaratory judgment, and cancellation pursuant to 15 U.S.C. §

1119 and 1121, and 28 U.S.C. § 1331, 1332, 1338, 2201, and 2202.

5. On information and belief, Defendant has advertised and sold products within this

judicial district. Accordingly, this Court has personal jurisdiction over the Defendant.

6. Venue is proper in this judicial district pursuant to 28 USC § 1391.

STATEMENT OF FACTS

7. Plaintiff is in the business of developing, manufacturing, and selling electronic

cigarettes, propylene glycol and vegetable glycerin based liquid for electronic cigarettes, and

other related accessories for electronic cigarettes. Since at least as early as May of 2013,

Plaintiff, and/or its predecessors in interest, has marketed and sold its electronic cigarettes and

related products in interstate commerce using the trademark “BREATHE.”

8. Plaintiff is the owner of the domain name “breathecig.com” and advertises and

sells its products via an internet web page located at http://www.breathecig.com. A printout of

Plaintiff’s website, showing Plaintiff’s “BREATHE” trademark, is attached hereto as Exhibit A.

9. Plaintiff has spent considerable time, effort, and expense promoting, advertising,

and popularizing its “BREATHE” trademark throughout the United States, with the result that

the purchasing public has come to know, rely upon, and recognize Plaintiff’s “BREATHE”

trademark as an indicator of the source of the goods offered and sold thereunder. Plaintiff has

established valuable goodwill in its “BREATHE” trademark. Accordingly, Plaintiff has


3

developed common law trademark rights in its “BREATHE” trademark, and such trademark is

lawfully entitled to a broad ambit of protection against infringing uses.

10. On information and belief, Defendant is a direct competitor of Plaintiff. More

specifically, on information and belief, Defendant is in the business of selling propylene glycol

and vegetable glycerin based liquid for electronic cigarettes.

11. On information and belief, Defendant is the owner of the domain name

“breatheic.com” and advertises and sells its products via an internet web page located at

http://www.breatheic.com under the mark “BREATHE INTELLIGENT CIGARETTE &

Design” and/or similar variations thereof. A printout of Defendant’s website, showing

Defendant’s “BREATHE INTELLIGENT CIGARETTE & Design” mark, is attached hereto as

Exhibit B.

12. On information and belief, Defendant is the owner of United States Trademark

Registration No. 4,633,887, which was registered on November 4, 2014. A copy of United

States Trademark Registration No. 4,633,887 (hereinafter “the ‘887 Registration”) is attached

hereto as Exhibit C. The ‘887 Registration issued from U.S. Application Serial No. 86/076,790

(hereinafter “the ‘790 Application”), an intent-to-use federal trademark application filed on

September 27, 2013.

13. The ‘790 Application was filed subsequent to the first use of Plaintiff’s

“BREATHE” trademark. Accordingly, Plaintiff has superior priority in its “BREATHE”

trademark over any constructive use afforded to Defendant’s “BREATHE INTELLIGENT

CIGARETTE & Design” mark by virtue of the September 27, 2013 filing date of the ‘790

Application. Furthermore, the ‘887 Registration indicates Defendant’s “BREATHE

INTELLIGENT CIGARETTE & Design” mark was first used in interstate commerce on April


4

22, 2014, after the first-use date of Plaintiff’s “BREATHE” trademark in interstate commerce.

Thus, the first use of Plaintiff’s “BREATHE” trademark predates both Defendant’s constructive

use and Defendant’s actual first use of “BREATHE INTELLIGENT CIGARETTE & Design,”

and Plaintiff has superior trademark rights in its “BREATHE” trademark over Defendant’s

“BREATHE INTELLIGENT CIGARETTE & Design” mark.

14. Defendant’s “BREATHE INTELLIGENT CIGARETTE & Design” mark

incorporates a phonetically identical variation of Plaintiff’s “BREATHE” trademark and is

confusingly similar to Plaintiff’s “BREATHE” trademark.

15. Defendant’s goods associated with the “BREATHE INTELLIGENT

CIGARETTE & Design” mark and the goods set forth in the ‘887 Registration, namely,

“Cartridges sold filled with propylene glycol for electronic cigarettes; cartridges sold filled with

vegetable glycerin for electronic cigarettes,” are confusingly similar to Plaintiff’s goods.

16. Defendant’s goods are likely to be purchased by the same consumers who

purchase and/or use Plaintiff’s goods.

17. Defendant’s unauthorized use of its “BREATHE INTELLIGENT CIGARETTE

& Design” mark, a mark which is confusingly similar to Plaintiff’s “BREATHE” trademark, in

connection with the sale of products which are confusingly similar to Plaintiff’s products, is

likely to cause confusion among consumers and misrepresents the origin of the goods and

services offered by the Defendant. Purchasers, potential purchasers and others are likely to

mistakenly believe that the Defendant’s goods offered under the mark “BREATHE

INTELLIGENT CIGARETTE & Design” are produced, sponsored, endorsed, or approved by

Plaintiff, or are in some way affiliated, connected, or associated with Plaintiff, causing damage


5

and injury to Plaintiff. Such conduct by the Defendant has irreparably harmed, and continues to

irreparably harm, Plaintiff.

18. On or about August 5, 2015, Plaintiff received a letter dated July 21, 2015 from

counsel for Defendant alleging that Plaintiff is infringing Defendant’s trademark. On

information and belief, in this letter, Defendant, by and through its counsel, alleges that

Plaintiff’s use of its “BREATHE” trademark constitutes infringement of alleged trademark rights

held by Defendant in its “BREATHE INTELLIGENT CIGARETTE & Design” mark. A copy

of this letter is attached hereto as Exhibit D.

19. In the letter, Defendant demanded, among other things, that Plaintiff provide “a

full accounting of all monies associated with your business” and that Plaintiff

“remove/deactivate your website.” Such demands were backed by the threat of litigation.

Accordingly, an actual case or controversy exists between the parties.

20. Continued registration of the “BREATHE INTELLIGENT CIGARETTE &

Design” mark would confer upon Defendant statutory presumptions to which it is not entitled in

view of Plaintiff’s prior use of its “BREATHE” trademark, resulting in further damage and

injury to the Plaintiff.

COUNT I

TRADEMARK INFRINGEMENT

21. The allegations of paragraphs 1 through 20 above are restated and incorporated

herein by reference.

22. Defendant’s unauthorized use of marks which incorporate phonetically identical

variations of Plaintiff’s “BREATHE” trademark, and/or which are confusingly similar to

Plaintiff’s “BREATHE” trademark (i.e. “BREATHE INTELLIGENT CIGARETTE & Design”


6

and/or similar variations thereof), in connection with the sale of products which are confusingly

similar to Plaintiff’s products, is likely to cause confusion of purchasers and the public in

general, to cause mistake and to deceive the purchasing public and others. These acts constitute

infringement of Plaintiff’s trademark rights in its “BREATHE” trademark arising under common

law.

23. On information and belief, Defendant’s acts of trademark infringement were

committed with the willful and knowing intent to cause confusion and mistake and to deceive the

public.

24. Defendant’s acts of trademark infringement have irreparably damaged Plaintiff.

25. It would be difficult to ascertain the amount of compensation which could afford

Plaintiff adequate relief for such acts. Accordingly, Plaintiff’s remedy at law is not adequate to

compensate it for injuries threatened.

COUNT II

UNFAIR COMPETITION



27. Defendant’s unauthorized use of marks which incorporate phonetically identical

variations of Plaintiff’s “BREATHE” trademark, and/or which are confusingly similar to

Plaintiff’s “BREATHE” trademark (i.e. “BREATHE INTELLIGENT CIGARETTE & Design”

and/or similar variations thereof), in connection with the sale of products which are confusingly

similar to Plaintiff’s products, constitutes a false designation of origin which is likely to cause

confusion, to cause mistake, and to deceive the public and potential customers as to the

affiliation, connection or association of Defendant with Plaintiff and as to the origin,


7

sponsorship, or approval of Defendant’s goods and/or services by Plaintiff. These acts are in

violation of 15 U.S.C. § 1125(a), in that Defendant has used in connection with goods and

services a false designation of origin and a false or misleading description and representation of

fact which is likely to cause confusion, and to cause mistake, and to deceive as to the affiliation,

connection, or association of Defendant with Plaintiff and as to the origin, sponsorship, and

approval of Defendant’s goods, services and commercial activities by Plaintiff. Such activities

by Defendant also constitute acts of common law unfair competition.

28. Defendant’s acts of federal and common law unfair competition were committed

with the intent to cause confusion and mistake and to deceive the public.

29. Defendant’s acts of federal and common law unfair competition have damaged

Plaintiff.

30. It would be difficult to ascertain the amount of compensation which could afford

Plaintiff adequate relief for such acts. Accordingly, Plaintiff’s remedy at law is not adequate to

compensate it for injuries threatened.

COUNT III

DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF ‘887 REGISTRATION



32. As a result of the aforementioned letter, Plaintiff has a reasonable fear and

apprehension that trademark infringement litigation will be brought against it by the Defendants.

An actual justiciable controversy therefore exists between the parties.

33. Plaintiff has not infringed any valid trademark rights owned by Defendant with

regard to Defendant’s “BREATHE INTELLIGENT CIGARETTE & Design” mark. In this


8

regard, Plaintiff has superior trademark rights in its “BREATHE” trademark over Defendant’s

“BREATHE INTELLIGENT CIGARETTE & Design” mark.

34. The allegations of Defendant that Plaintiff has infringed alleged trademark rights

held by Defendant in its “BREATHE INTELLIGENT CIGARETTE & Design” mark are

frivolous, and Plaintiff is entitled to a Declaration and Judgment that Plaintiff has not infringed,

and is not infringing, any trademark rights of Defendant with regard to the “BREATHE

INTELLIGENT CIGARETTE & Design” mark.

35. This is an exceptional case within the meaning of 15 U.S.C. §1117 entitling

Plaintiff to an award of its attorney fees and costs of this litigation.

COUNT IV

CANCELLATION OF THE ‘887 REGISTRATION



37. The “BREATHE INTELLIGENT CIGARETTE & Design” mark and the goods

set forth in the ‘887 Registration so resemble Plaintiff’s “BREATHE” trademark and goods as to

be likely to be confused therewith and mistaken therefor.

40. The “BREATHE INTELLIGENT CIGARETTE & Design” mark set forth in the

‘887 Registration so resembles Plaintiff’s “BREATHE” trademark as to be likely, when used on

or in connection with the goods identified in the ‘887 Registration, to cause confusion, mistake,

or deception among purchasers, potential purchasers and others. Purchasers, potential purchasers

and others are likely to mistakenly believe that the Defendant’s goods/services offered under the

“BREATHE INTELLIGENT CIGARETTE & Design” mark are produced, sponsored, endorsed


9

or approved by Plaintiff, or are in some way affiliated, connected or associated with Plaintiff,

causing damage and injury to Plaintiff.

41. Further, continued registration of the “BREATHE INTELLIGENT CIGARETTE

& Design” mark would confer upon Defendant statutory presumptions to which it is not entitled

in view of Plaintiff’s prior use of its “BREATHE” trademark, resulting in further damage and

injury to the Plaintiff.

42. Therefore, the ‘887 Registration should be cancelled pursuant to 15 U.S.C. §§

1052(d) and 1064.

WHEREFORE, Plaintiff prays for judgment against Defendant as follows:

A. That Defendant and all of Defendant’s agents, servants, employees, officers,

attorneys, successors and assigns and all other persons in active concert or participation with it,

and/or controlled by it, be temporarily, preliminarily, and permanently enjoined from:

i. using Plaintiff’s trademarks, including without limitation “BREATHE”, any

colorable imitations thereof, and/or any trademarks, service marks, trade names and/or

domain names confusingly similar thereto including without limitation “BREATHE

INTELLIGENT CIGARETTE & Design”;

ii. otherwise offering products for sale in a misleading manner, or misrepresenting

Defendant’s affiliation with Plaintiff or otherwise unfairly competing with Plaintiff

and/or infringing Plaintiff’s trademarks.

B. That Defendant be directed to file with the Court and serve upon Plaintiff, within

thirty (30) days after issuance of any injunction, a written report setting forth in detail the manner

and form in which Defendant has complied with the injunction.


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C. That Defendant be required to account to Plaintiff for any and all profits derived

by Defendant from the sale of their goods and/or services and for all damages sustained by

Plaintiff by reason of said acts of infringement and unfair competition complained of herein.

D. That Plaintiff be awarded its damages, including corrective advertising damages,

for Defendant’s infringement and unfair competition, and the profits derived by Defendant

pursuant to 15 U.S.C. § 1117 and the common laws of Tennessee.

E. That Plaintiff be awarded treble damages pursuant to 15 U.S.C. § 1117 in view of

Defendant’s willful, knowing, and intentional conduct.

F. That the Court find this to be an exceptional case and award Plaintiff its

reasonable attorney’s fees pursuant to 15 U.S.C. § 1117.

G. That Plaintiff be awarded punitive damages for intentional common law

trademark infringement and unfair competition.

H. That Plaintiff be awarded its costs of this action pursuant to 15 U.S.C. § 1117.

I. That the Court enter an Order permanently enjoining Defendant and all of

Defendant’s agents, servants, employees, officers, attorneys, successors and assigns and all other

persons in active concert or participation with it, and/or controlled by it, from making further

allegations or claims that Plaintiff has infringed any trademark rights in the “BREATHE

INTELLIGENT CIGARETTE & Design” mark.

J. That the ‘887 Registration be cancelled and that registration of the mark for the

goods therein specified be deemed invalid.

K. That Plaintiff be awarded such other and further relief that the Court deems just

and proper.


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Respectfully submitted, BREATHE ECIGS CORP

/JACOB G. HORTON/ Robert E. Pitts (Tenn. BOPR# 01610) [email protected] Andrew C. Lake (Tenn. BOPR# 29952) [email protected] Jacob G. Horton (Tenn. BOPR# 25467) [email protected] Raymond E. Stephens (Tenn. BOPR# 15037) [email protected] PITTS & LAKE, P.C. P.O. Box 51295 Knoxville, Tennessee 37950-1295 Phone: (865) 584-0105 Fax: (865) 584-0104 Attorneys for Plaintiff


EXHIBIT A

Case 3:15-cv-00345-TAV-HBG Document 1-1 Filed 08/10/15 Page 1 of 3 PageID #: 12

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EXHIBIT B


EXHIBIT C


EXHIBIT D


1

BROWN & ROSEN LLC Attorneys At Law

100 State Street, Suite 900

Boston, MA 02109

617-728-9111 (T)

617-695-3202 (F)

www.brownrosen.com

July 21, 2015

Via email only

Joshua Kimmel and

Chris Clark

Breathe eCigs Corp

9921 Lani Lane

Knoxville, TN 37932

[email protected]

RE: Trademark Infringement Breathe LLC

Dear Mr Kimmel and Mr. Clark:

This office is legal counsel to Breathe LLC (“Breathe”). Breathe is an electronic

cigarette company with a registered trademark with the United States Trademark Office.

Breathe’s website can be visited at www.breatheic.com.

Breathecig.com and your company, Breathe eCigs Corp. (“Corp”) are presently

infringing on the trademark of Breathe and wrongfully interfering with the business of

Breathe. At this time a full accounting of all monies associated with your business is

hereby demanded and you shall remove/deactivate your website today.

Failure to comply will lead to litigation forthwith. If you have any questions, do

not hesitate to contact me.

Sincerely,

Brown & Rosen LLC

By:

________________________

Christopher L. Brown


mailto:[email protected]

http://www.breatheic.com/

OJS 44 (Rev. 11/04) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as providedby local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

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’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEFPlaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4

of Business In This State

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Employment ’ 550 Civil Rights to Justice’ 446 Amer. w/Disabilities - ’ 555 Prison Condition ’ 950 Constitutionality of

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Appeal to DistrictJudge fromMagistrateJudgment

(Place an “X” in One Box Only)’ 1 Original

Proceeding’ 2 Removed from

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’ CHECK IF THIS IS A CLASS ACTIONUNDER F.R.C.P. 23

DEMAND $ CHECK YES only if demanded in complaint:JURY DEMAND: ’ Yes ’ No

VIII. RELATED CASE(S) IF ANY (See instructions): JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD

FOR OFFICE USE ONLY

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JS 44 Reverse (Rev. 11/04)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as requiredby law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the useof the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaintfiled. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use onlythe full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, givingboth name and title.

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Brief Description: Unauthorized reception of cable service

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breathe ecigs corp v. breathe llc

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