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UNITED STATES DISTRICT COURT FOR NORTHERN DISTRICT OF ILLINOIS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

TECHNIVORM, B.V., a Netherlands limited liability company, Plaintiff, v. BOYD COFFEE COMPANY, an Oregon corporation, and BOYD COFFEE DISTRIBUTION COMPANY, an Oregon corporation, Defendants.

Case No. __________________

Hon.______________________

COMPLAINT This is an action for breach of contract, trademark and trade name infringement, unfair competition and declaratory relief arising from defendants wrongful acts in failing to pay for products ordered and received by them, improperly representing themselves as distributors of Technivorm B.V.s (Technivorm) products in the United States and incorrectly asserting that they are Technivorms exclusive United States distributor. Defendants relationship with Technivorm has been properly terminated, and Technivorm seeks monetary, injunctive, and other relief for the reasons set forth below. THE PARTIES 1. Plaintiff Technivorm B.V. is a Netherlands limited liability company with

its principal place of business at Industrieweg 20 3958 VR Amerongen, The Netherlands. 2. Technivorm is engaged in the business of manufacturing high quality and

handmade Moccamaster and technivorm coffee makers for home and commercial use

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around the world, including the United States. Technivorm authorizes independent distributors to sell its Moccamaster and technivorm coffee makers to retailers and directly to end users. 3. Defendants are Oregon corporations headquartered at 19730 NE Sandy

Blvd., Portland, Oregon 97230 and operating a regional sales office from 1345 Louis Avenue, Elk Grove Village, Illinois 60007. JURISDICTION AND VENUE 4. This Court has jurisdiction pursuant to 34(a) and 39 of the Lanham Act,

15 U.S.C. 1116 (a) & 1121, and 28 U.S.C. 1331, 1332(a), 1338, 1367(a) and 2201. The amount in controversy exceeds $75,000, exclusive of interest and costs. 5. This Court has in personam jurisdiction over defendants because they

conduct business in this district and events giving rise to Plaintiffs claims have occurred in this district. 6. Venue is proper in this district pursuant to 28 U.S.C. 1391(b)(1), (2). BACKGROUND FACTS 7. Technivorm is a manufacturer of Moccamaster coffee makers and owns a

federal registration for the mark Moccamaster, Registration No. 2,549,956. This registration is in full force and effect and is incontestable pursuant to 15 U.S.C. 1065. 8. Technivorm also owns a federal registration for the mark technivorm,

Registration No. 1,456,171. This registration is in full force and effect and is incontestable pursuant to 15 U.S.C. 1065.

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9.

Technivorm has the exclusive authority to use and authorize others to use

its Moccamaster and technivorm marks and trade names and has used them at all times relevant to this action to identify its Moccamaster and technivorm coffee makers. 10. commerce. 11. Defendants were formerly authorized to use the Moccamaster and The Moccamaster and technivorm trademarks are utilized in interstate

technivorm trademarks and trade names as an authorized distributor of Moccamaster and technivorm coffee makers. 12. Pursuant to Technivorms authorization, defendants ordered Moccamaster

and technivorm coffee makers from Technivorm, marketed and sold those coffee makers and agreed to pay Technivorm for the coffee makers defendants ordered and received from Technivorm. 13. Defendants ignored and failed to comply with the terms of payment and

the credit limit applicable to them when they ordered and received Moccamaster and technivorm coffee makers from Technivorm. 14. Defendants also failed to prepare and present to Technivorm, as agreed, a

business and market plan to improve its performance and the sale of Moccamaster and technivorm coffee makers. 15. Rather than promote Technivorms Moccamaster and technivorm coffee

makers, defendants focused primarily on marketing and selling other products when participating in trade shows.

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16.

Defendants were advised on October 1, 2012 that their relationship as

distributors of Technivorms Moccamaster and technivorm coffee makers would end as of December 31, 2012. 17. On December 31, 2012, Technivorm terminated its relationship with

defendants that authorized them to use Technivorms Moccamaster and technivorm trademarks and trade names and be a Moccamaster and technivorm distributor. 18. Technivorm advised defendants that they could still purchase parts,

accessories and Moccamaster and technivorm coffee makers from a new distributor that Technivorm engaged in the United States as of January 1, 2013. 19. However, defendants have continued to market themselves in Illinois and

throughout the United States and the world as the United States importer and distributor of Technivorms Moccamaster and technivorm coffee makers on the internet at http://www.boyds.com/to-buy/technivorm/ and at http://www.boydscoffeestore.com/brewing/. 20. In addition, defendants have hijacked Technivorms own corporate name

and are holding themselves out in Illinois, throughout the United States and the world as the United States Moccamaster and technivorm coffee maker distributor at http://www.technivorm-us.com/. 21. Defendants have argued in letters to Technivorm that they remain and are

the exclusive distributor of Technivorms Moccamaster in the United States and have threatened Technivorm with a lawsuit. 22. Technivorm has responded in writing that defendants are no longer a

distributor of Technivorms Moccamaster.

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23.

Defendants actions have caused and continue to cause monetary damage

and irreparable harm to Technivorm, including confusion in the marketplace and harm to its reputation and goodwill. COUNT I Breach of Contract 24. reference. 25. Defendants ordered from Technivorm Moccamaster and technivorm The allegations of paragraphs 1 through 23 are hereby incorporated by

coffee makers and parts and accessories for Moccamaster and technivorm coffee makers. 26. Technivorm manufactured and delivered to defendants the Moccamaster

and technivorm coffee makers, parts and accessories that defendants ordered before their relationship was terminated pursuant to terms and conditions on invoices that accompanied or followed the deliver of the coffee makers, parts and accessories. 27. Defendants agreed to pay Technivorm for the Moccamaster and

technivorm coffee makers, parts and accessories that defendants ordered and received. 28. Defendants have failed to pay Technivorm for the Moccamaster and

technivorm coffee makers, parts and accessories that defendants ordered and received. 29. As a direct and proximate result of these actions, Technivorm has incurred

monetary damages in an amount in excess of $685,013.56, plus interest, late fees and collection costs (including attorneys fees and court costs). COUNT II Trademark Infringement 30. reference. The allegations of paragraphs 1 through 29 are hereby incorporated by

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31.

The use in commerce of Technivorms Moccamaster and technivorm

trademarks and trade names by defendants without the authorization and consent of Technivorm is likely to confuse or deceive the public into believing, contrary to fact, that the unauthorized activities of defendants are licensed, franchised, sponsored, authorized, or otherwise approved by Technivorm. Such unauthorized use of Technivorms trademarks and trade names infringes its exclusive rights in its trademarks under Section 32 of the Lanham Act, 15 U.S.C. 1114, and applicable state law. 32. The acts of defendants were and are being done knowingly and

intentionally to cause confusion, or to cause mistake, or to deceive. 33. As a direct and proximate result of defendants actions, Technivorm has

suffered and is continuing to suffer irreparable injury, and has incurred and is continuing to incur monetary damages in an amount that has yet to be determined. COUNT III Unfair Competition 34. reference. 35. The use in commerce of Technivorms Moccamaster and technivorm The allegations of paragraphs 1 through 33 are hereby incorporated by

trademarks and trade names by defendants without the authorization and consent of Technivorm is likely to cause confusion, or to cause mistake, or to deceive as to the origin, sponsorship, or approval of their goods, services, or commercial activities. Such unauthorized use of Technivorms trademarks and trade names violates Section 43 of the Lanham Act, 15 U.S.C. 1125(a), and applicable state law. 36. The acts of defendants were and are being done knowingly and

intentionally to cause confusion, or to cause mistake, or to deceive.

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37.

As a direct and proximate result of defendants actions, Technivorm has

suffered and is continuing to suffer irreparable injury, and has incurred and is continuing to incur monetary damages in an amount that has yet to be determined. COUNT IV Declaratory Relief 38. reference. 39. Defendants have threatened Technivorm with expensive and inconvenient The allegations of paragraphs 1 through 36 are hereby incorporated by

litigation to force Technivorm to use defendants as its exclusive United States distributors for the marketing and sale of Moccamaster and technivorm coffee makers. 40. Defendants have no basis on which to make such threats because any

agreement under which defendants previously served Technivorm as distributors has expired well over a year ago and has not been renewed. 41. Technivorm is entitled to a judicial declaration that there is no ongoing or

continuing distribution agreement between Technivorm and defendants, and Technivorm is not obligated in any way to defendants to allow them to continue to distribute Technivorms Moccamaster or technivorm coffee makers after Technivorm properly discontinued their relationship. 42. As a result of the above facts, a case of actual controversy within this

Courts jurisdiction exists between Technivorm and defendants, and the Court may order a speedy hearing to resolve this dispute pursuant to Fed. R. Civ. P. 57.

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PRAYER FOR RELIEF WHEREFORE, Technivorm requests that the Court: A. Enter a declaratory judgment holding that Technivorm is not obligated to

defendants to continue or have any distribution relationship with defendants, and defendants no longer have a right to market, distribute and sell Technivorms Moccamaster and technivorm coffee makers; B. Enter an injunctive order ratifying and enforcing the termination of the

defendants role and rights as a distributor as of December 31, 2012; C. Enter an order enjoining defendants, and all those acting by, through, or in

concert with them, by preliminary and permanent injunction, from using Technivorms Moccamaster and technivorm trademarks and trade names, and from otherwise engaging in unfair competition with Technivorm; D. Enter judgment in favor of Technivorm against defendants jointly and

severally for in excess of $685,013.56, representing the amount that defendants have wrongfully failed to pay but that is properly owed to Technivorm; E. Enter judgment in favor of Technivorm against defendants jointly and

severally for the damages Technivorm has sustained and the profits defendants have derived as a result of their trademark infringement and unfair competition, assessing such damages in a separate accounting procedure, and then trebling those damages in accordance with Section 35 of the Lanham Act, 15 U.S.C. 1117; F. Award Technivorm its costs and attorneys fees incurred in connection

with this action, pursuant to Section 35 of the Lanham Act, 15 U.S.C. 1117, including the costs incurred in conducting any and all necessary inspections; and

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G. proper.

Award Technivorm such other relief as this Court may deem just and

Respectfully submitted,

____________________________________ Todd A. Holleman (6307584) MILLER, CANFIELD, PADDOCK & STONE P.L.C. 225 West Washington, Suite 2600 Chicago, Illinois 60606 Telephone: (312) 460-4200 Facsimile: (312) 460-4201 holleman@millercanfield.com Dated: February 4, 2013
20,847,377.1\151388-00001

Attorneys for Plaintiff