Professional Documents
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corporation,
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12 2. Since 2012, Mr. Resnick and Ms. ONeill have traveled the world to
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13 meet with artisan candy-makers and have taste-tested thousands of candies in their
14 search to find the best of the best. Today, this experience has culminated in
15 Sugarfina redefining confectioneries and the associated experience, including
16 painstakingly creating high quality, distinctive packaging for its redefined
17 confectionaries. In the years since its founding, Sugarfina has established itself as
18 offering unique luxury products and a highly engaged customer base.
19 3. Sugarfinas efforts have now grown to a thriving business that
20 employs over 300 people and operates across various commercial channels,
21 including storefronts, e-commerce, wholesale, and corporate partnerships.
22 4. Sugarfinas retail channel focuses on building a footprint at high-end
23 luxury spaces. Currently, Sugarfina operates over twenty-three (23) retail boutiques,
24 with many additional storefronts planned throughout the globe. Sugarfina also
25 operates a series of shop-in-shops at fourteen (14) Nordstroms locations in the
26 United States and Canada. Its wholesale channel caters to premium reseller partners
27 such as Bergdorf Goodman and the Four Seasons Hotels. Its corporate channel
28 caters to institutional clients seeking to personalize packaging or coordinate events.
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Case 2:17-cv-04456-RSWL-JEM Document 26 Filed 10/16/17 Page 3 of 53 Page ID #:245
12 of the managers of Farrells. The sole manager of ML Food Group, LLC is Marcus
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13 Lemonis.
14 20. Plaintiff is informed and believes, and based thereon alleges, that at
15 all times herein mentioned, each of the Defendants was the agent, servant,
16 employee, and/or alter ego of each of the other Defendants, and in doing the things
17 hereinafter alleged, was acting within the course and scope of said agency and/or
18 employment, and with the permission and consent, express and/or implied, of the
19 other Defendants herein. A unity of interest and ownership exists between and
20 among the Defendants such that there is no distinction between or among the
21 Defendants and if the acts alleged herein by one Defendant are treated as the acts of
22 that Defendant alone, an inequitable result will follow. On information and belief,
23 Defendants have utilized these entities to commit the wrongs alleged herein, to
24 shield themselves from personal liability for their conduct, and to hinder, delay,
25 and/or defraud others. In order to effect justice herein, the corporate fiction
26 maintained by Defendants must be pierced, all relief and damages should be
27 awarded against all Defendants jointly and severally, and all acts of the Defendants
28 should be treated as the acts of the other Defendants.
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Case 2:17-cv-04456-RSWL-JEM Document 26 Filed 10/16/17 Page 6 of 53 Page ID #:248
1 JURISDICTION
2 21. This Court has subject matter jurisdiction under 15 U.S.C. 1121
3 (action arising under the Lanham Act); 28 U.S.C. 1331 (federal question); 28
4 U.S.C. 1338(a) (any Act of Congress relating to patents, copyrights, or
5 trademarks); 28 U.S.C. 1338(b) (action asserting claim of unfair competition
6 joined with a substantial and related claim under the trademark laws); and 28
7 U.S.C. 1367 (supplemental jurisdiction).
8 22. This Court has personal jurisdiction over Defendants because they
9 have a regularly established place of business in this District, they have committed
10 and continue to commit acts of infringement in violation of 35 U.S.C. 271, 15
11 U.S.C. 1114 and 1125, and 17 U.S.C. 101 et seq., and place infringing
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12 products into the stream of commerce, with the knowledge or understanding that
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13 such products are sold in the State of California, including in this District. The acts
14 by Defendants cause injury to Sugarfina within this District.
15 23. Upon information and belief, Defendants also derive substantial
16 revenue from the sale of infringing products within this District, expect their actions
17 to have consequences within this District, derive substantial revenue from interstate
18 and international commerce, and have a regularly established place of business in this
19 District.
20 VENUE
21 24. Venue is proper within this District under 28 U.S.C. 1391(b) and
22 1367(a) because Defendants transact business within this district including having a
23 regularly established place of business in this district and offering for sale in this
24 district products that infringe the Sugarfina trade dress, patent, copyrights and
25 trademarks. In addition, venue is proper because Sugarfinas principal place of
26 business is in this district and Sugarfina suffered harm in this district. Moreover, a
27 substantial part of the events giving rise to the claim occurred in this district.
28 ///
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1 BACKGROUND
2 Sugarfinas Innovations
3 25. Sugarfina is a luxury candy boutique well recognized for its
4 distinctive products sold under the SUGARFINA brand using novel and original
5 designs in its packaging. Defendants are well aware that Sugarfina is the owner of
6 numerous design patents, trademark registrations, and copyright registrations,
7 including the following (having received a cease and desist letter dated March 15,
8 2016).
9 U.S. Design Patent No. D755,641
10 U.S. Copyright Reg. No. VA0001963483
11 U.S. Copyright Reg. No. VA0001963482
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13 packaging, Sugarfina products have been a great success, and their packaging,
14 colors, and presentation have immediately become uniquely associated with
15 Sugarfina as their source.
16 27. Sugarfina products, with its branded packaging, have been
17 extensively advertised throughout the United States to capitalize on the existing
18 distribution channels, including social media and internet marketing, with the vast
19 majority of the advertisements featuring photographs of the distinctive design of the
20 Sugarfina products.
21 28. In addition, Sugarfinas products have received unsolicited comment
22 and attention in print and social media throughout the world. Each new Sugarfina
23 product is the subject of positive commentary and receives unsolicited praise from
24 independent social commentators. Frequently, these unsolicited commentaries are
25 accompanied by images of various Sugarfina products, including their unique
26 packaging.
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1 29. The Sugarfina product design has come to represent and symbolize
2 the superb quality of Sugarfinas products and enjoys substantial goodwill among
3 consumers.
4 30. Sugarfina has received a number of awards for its signature designs
5 and innovations including, but not limited to, the Addy Gold award and the Chain
6 Store Age Breakout Retailer award.
7 Sugarfinas IP Rights
8 Sugarfinas Trademarks
9 31. Defendants products are not merely likely to confuse customers; they
10 are certain to confuse customers, and have actually confused customers, as
11 Defendants use exact or near-exact replicas of Sugarfinas marks, including the
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19 CANDY CONCIERGE
20 32. Defendants use of Sugarfinas marks creates a high likelihood of
21 confusion, as Defendants alter virtually nothing about the marks and intentionally
22 import the entire appearance, sound, and meaning of Sugarfinas marks to profit
23 from the customers association of the marks with Sugarfina. Defendants also
24 timed their use of Sugarfinas marks to follow closely after Sugarfinas first use.
25 33. SUGARFINAattached as Exhibit 1 is a true and correct copy of
26 U.S. Registration No. 4,677,276. Sugarfina first used the SUGARFINA mark on
27 July 16, 2012, and filed a trademark application for this mark on June 3, 2013.
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1 34. At least as early as 2017, shortly after Plaintiffs filed the original
2 Complaint in this matter, Defendants began using an identical mark to redirect
3 internet traffic to Defendants. More specifically, the protected mark
4 SUGARFINA is used in its entirety by Defendants as an AdWord purchased
5 through Google to prioritize the placement of Defendants advertisements, websites
6 and products. Under the totality of circumstances, including the timing of
7 Defendants purchase of the Sugarfina AdWord and the wholesale infringement
8 of Sugarfinas trade dress, trademark, patent, and copyright rights, the sum effect of
9 Defendants infringing use of the SUGARFINA mark is to confuse customers
10 into finding Sweet Petes when they are looking for Sugarfina.
11 35. CUBA LIBREattached as Exhibit 2 is a true and correct copy of
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12 U.S. Registration No. 4,943,322. Sugarfina first used the CUBA LIBRE mark on
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13 June 6, 2012, and filed a trademark application for this mark on August 14, 2015.
14 Defendants began using the same mark on a similar product shortly after Sugarfina
15 in 2016.
16 36. The protected mark CUBA LIBRE is used in its entirety on
17 Defendants producti.e., with the same appearance and sound. Both products are
18 gummy candiesi.e., with the same meaning. On both products, the mark appears
19 on a die-cut label consisting of a circle and a strip over a clear cube, making the
20 overall look and feel of Defendants use of the mark similar to Sugarfinas.
21 37. PEACH BELLINIattached as Exhibit 3 is a true and correct copy
22 of U.S. Registration No. 4,981752. Sugarfina first used the PEACH BELLINI
23 mark on December 3, 2013, and filed a trademark application for this mark on
24 August 14, 2015. Defendants began using the same mark on a similar product in
25 2016.
26 38. The protected mark PEACH BELLINI is used in its entirety on
27 Defendants producti.e., with the same appearance and sound. Both products are
28 gummy candiesi.e., with the same meaning. On both products, the mark appears
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1 on a die-cut label consisting of a circle and a strip over a clear cube, making the
2 overall look and feel of Defendants use of the mark similar to Sugarfinas.
3 39. FRUTTINISugarfina has common law trademark rights in the
4 FRUTTINI mark. Sugarfina began offering Blood Orange FRUTTINI and Italian
5 Lemon FRUTTINI at least as early as August 2015. Defendants began using a
6 similar mark for the same purpose in 2016.
7 40. The protected mark FRUTTINI is used in its entirety, though with a
8 slight spelling variation, on Defendants producti.e., with the same appearance
9 and sound. Both products are gummy candiesi.e., with the same meaning. On
10 both products, the mark appears on a die-cut label consisting of a circle and a strip
11 over a clear cube, making the overall look and feel of Defendants use of the mark
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12 similar to Sugarfinas.
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1 packaging for candiesi.e., with the same meaning. On both products, the mark
2 appears on a die-cut label consisting of a circle and a strip over a clear cube,
3 making the overall look and feel of Defendants use of the mark similar to
4 Sugarfinas.
5 45. CANDY CONCIERGESugarfina has common law trademark
6 rights in the CANDY CONCIERGE mark. Sugarfina began calling its customer
7 service team the CANDY CONCIERGE in 2013. Defendants began using the
8 same mark for the identical purpose in 2016.
9 46. The protected mark CANDY CONCIERGE is used in its entirety on
10 Sweet Petes websitei.e., with the same appearance and sound. Both uses of
11 CANDY CONCIERGE refer to the respective companies customer service team
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13 corresponding cube well and are immediately visible upon opening the box.
14 51. Despite being on clear notice of infringement of these and other
15 intellectual property rights owned by Sugarfina, Defendants have capitalized on
16 Sugarfinas distinctive, novel, and original designs that customers have come to
17 associate with the high quality and innovative candy products that Sugarfina offers.
18 52. Defendants have purposely taken steps to increase their similarity to
19 Sugarfina, and to encourage consumers to confuse the two brands to profit from the
20 goodwill Sugarfina has acquired through its careful and diligent marketing.
21 Sugarfinas Design Patents
22 53. Sugarfina has protected its innovative designs and packaging through
23 design patents issued by the United States Patent and Trademark Office. The
24 Sugarfina design patents cover the many famous ornamental features of Sugarfina
25 candy, such as the spaced cube arrangement, the spaced cube receiving wells, and
26 the distinctive use of a box to hold the clear cubes.
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1 54. Among others, Sugarfina owns all right, title, and interest in and to
2 the asserted U.S. Design Pat. No. D755,641, titled Packaging, a true and correct
3 copy of which is attached as Exhibit 6.
4 Sugarfinas Copyrights
5 55. Sugarfina has protected its innovative designs and packaging through
6 copyrights registered with the United States Copyright Office. The Sugarfina
7 copyrights cover the same famous and original ornamental features of Sugarfina
8 candy packaging as the design patents, such as the spaced cube arrangement, the
9 spaced cube receiving wells, and the distinctive use of a box to hold the clear cubes.
10 56. Sugarfina owns all right, title, and interest in and to each of the
11 following asserted copyrights, true and correct copies of which are attached as
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1 60. Sweet Petes was a failing business prior to its radical transformation
2 into a Sugarfina copycat. As Peter Behringer and Alison Behringer admitted in an
3 episode of the CNBC show, The Profit, published on March 28, 2014, at
4 https://www.youtube.com/watch?v=l-kHNxz5NFI&t=178s, Sweet Petes lost
5 $17,000 that year and lost $3,000 the previous year, even though Sweet Petes was
6 not paying Peter Behringer even a fair wage of $12.00 per hour as an employee.1
7 Peter Behringer and Alison Behringer made only $10,000 combined in 2013.
8 61. Also during this time period before 2014, none of Sweet Petes
9 products were marketed using Sugarfinas intellectual property. The products
10 shown in the episode of The Profit are markedly different from the products sold by
11 Sweet Petes today, and used generic packaging with an entirely different look and
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13 disciplined color palette, and subtle details underscoring the sophisticated tastes of
14 adult customers, Sweet Petes prior look of carnival motifs of oversized lollipops,
15 chalkboard signage, and wild patterns and colors have the aesthetic of a childrens
16 candy store.
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22 64. Thus, without investing any of the resources or innovation required
23 in developing a strong brand identity and intellectual property portfolio, Sweet
24 Petes reaped all the benefits of Sugarfinas investment and goodwill in the market.
25 Farrells
26 65. Farrells has sold candy since 2009. As with Sweet Petes, Farrells
27 candy offerings and marketing were entirely dissimilar from Sugarfinas. That all
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12 67. Also during this time period before 2016, none of Farrells products
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13 were marketed using Sugarfinas intellectual property. The products shown in the
14 episode of The Profit are markedly different from the products sold by Farrells
15 today, and used generic packaging with an entirely different look and feel from
16 Sugarfinas distinctive packaging. Here are pictures from the episode of Farrells
17 candy offerings before Marcus Lemoniss involvement.
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1 68. As depicted below, after its turn around and re-launch, the newly
2 revamped Farrells is shown to rely heavily on several design elements that have
3 become strongly associated with Sugarfina and established good will with the
4 purchasing public. Similar to the formula for Sweet Petes turn-around, the
5 Farrells recipe for success is based in large part on utilizing Sugarfinas signature
6 packaging, motif, and look and feel.
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1 a. CUBA LIBRE
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1 SUGARFINA, Defendants invite consumer confusion and admit that they make
2 knowing efforts to tie Sweet Petes to Sugarfina and its goodwill, and purposefully
3 to market Sweet Petes products to Sugarfinas customers and potential customers.
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10 72. Defendants use of various trade names that infringe Sugarfinas
11 trademark rights, particularly in combination with its adoption of a trade dress that
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14 Petes and Farrells products are Sugarfina products, or that they are sponsored by
19 rights in its candy products not only allows Defendants to benefit from Sugarfinas
20 investment, but it also threatens to diminish the very important goodwill that
21 Sugarfina has cultivated with its products. The value of such goodwill is evident in
22 part in the success that resulted from Defendants wrongful appropriation: after
23 stealing Sugarfinas aesthetic and branding strategies, Sweet Petes was resurrected
24 from a failing company that lost $17,000 per year to a profitable company
28 been unsuccessful. Those efforts included multiple cease and desist letters to Sweet
1 Petes and follow-up telephone calls to both Peter Behringer and Marcus Lemonis.
2 Defendants chose to infringe Sugarfinas patent, copyright, trade dress, and
3 trademark rights through the design, packaging and promotion of their candy
4 products, and they did so willfully to trade upon the goodwill that Sugarfina has
5 developed in connection with its luxury branded products.
6 Infringement of Sugarfinas Trade Dress
7 75. Sugarfina is informed and believes that Defendants began producing,
8 selling, and marketing its copycat products after Sugarfinas first use of the asserted
9 trade dress.
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22 76. Each of Defendants Accused Products embodies a combination of
23 several elements of the Sugarfina Trade Dress identified above, namely, a product
24 configuration with a total image and overall appearance that is unique, including
25 features such as size, shape, color or color combinations, texture, graphics, and
26 sales techniques.
27 77. Instead of complying with Sugarfinas demand that Defendants cease
28 their unlawful activities, Defendants escalated their unlawful activities and engaged
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1 78. These statements are demonstrably false and made in bad faith, as
2 this present action against Defendants is the first infringement litigation Sugarfina
3 has ever filed. In fact, this present action against Defendant is the first time
4 Sugarfina has ever been the plaintiff in any kind of litigation.
5 79. To date, these statements have been disseminated to Mr. Lemoniss
6 approximately 830,000 Facebook followers, and to Sweet Petes approximately
7 46,500 Facebook followers.
8 Infringement of Sugarfinas Patent
9 80. Sugarfina was selling its designer three-by-three cell candy bento
10 boxes long before Defendants. An example is shown below.
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22 81. In 2014, Sugarfina filed a design patent application covering its
23 unique packaging, such as the packaging shown above. That design patent
24 application issued on May 10, 2016, as U.S. Design Patent No. D755,641 (the 641
25 Patent), and is titled Packaging.
26 82. The 641 Patent claims [t]he ornamental design for a packaging, as
27 shown and described in the patent. FIG. 1 of the 641 Patent is reproduced below.
28 FIG. 1 depicts an exploded perspective view of the patented design.
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83. FIG. 2 of the 641 Patent is reproduced below. FIG. 2 depicts a
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84. FIGS. 34 of the 641 Patent are reproduced below. FIG. 3 depicts a
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10 85. FIG. 5 of the 641 Patent is reproduced below. FIG. 5 depicts a top
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19 86. FIG. 6 of the 641 Patent is reproduced below. FIG. 6 depicts a side
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patented design, giving such attention that a candy purchaser usually gives, would
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find the two designs to be substantially the same. The 641 Patent claims a
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packaging including transparent cubes arranged in three-by-three cells spaced apart
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and nested fully within a rectangular box with high, straight walls, with a folding
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cover top with a pull-tab at the end. As shown above, Defendants design also
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includes transparent cubes arranged in three-by-three cells spaced apart and nested
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fully within a rectangular box with high, straight walls, with a folding cover top
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with a pull-tab at the end. An ordinary observer would recognize that Defendants
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design is substantially the same as the patented design in the 641 Patent. The
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overall impression of the two designs is substantially the same.
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89. Further, an ordinary observer familiar with the prior art would be
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deceived into believing the Defendants design is the same as the design patented in
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the 641 Patent. Of the many prior art candy packaging types, an ordinary observer
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would recognize that none of the prior art candy packaging types include, for
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instance, the three-by-three cells of transparent cubes spaced apart and nested fully
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1 within a rectangular box with high, straight walls, with a folding cover top with a
2 pull-tab at the end as patented in the 641 Patent.
3 90. Indeed, it is axiomatic that the 641 Patent is infringed by
4 Defendants design because in the eye of an ordinary observer, Defendants design
5 is substantially the same as the claimed design in the 641 Patent. And indeed, such
6 marketplace confusion has already been shown, an example of which is below.
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Infringement of Sugarfinas Copyrights
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91. In addition to the aforementioned design patent protections,
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Sugarfina also has copyright protections for its three-piece designer candy boxes
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and its designer candy bento boxes at Reg. Nos. VA0001963482 and
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VA0001963483.
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1 92. Defendants have had access to the copyrighted candy boxes because
2 Sugarfina has been selling and marketing them to the public, in the same industry
3 and using the same marketing channels as Defendants, since at least as early as their
4 copyright registrations in 2013.
5 93. In a blatant attempt to copy Sugarfina, Defendants designed and
6 developed near exact imitations of Sugarfinas registered works.
7 94. At least as early as 2016, Defendants began actively selling these
8 infringing products to retailers and unwitting consumers. Defendants infringing
9 products are strikingly similar imitations of Sugarfinas protected products.
10 Defendants copied all the original and distinctive qualities of Sugarfinas products,
11 including the configuration of three-by-three cells or three cells of transparent cubes
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12 spaced apart and nested fully within a rectangular box with high, straight walls; the
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13 use of a die-cut labels on the clear cubes within the outer box; and specific graphic
14 elements designed by Sugarfina, such as the prints, patterns, and colors imprinted
15 on the boxes and labels.
16 95. Defendants have no license from Sugarfina to make replicas of
17 Sugarfinas registered original works. On the contrary, at least as early as March
18 15, 2016, Sugarfina demanded that Defendants cease their infringing activities.
19 Defendants refused to comply and continued knowingly and willfully to create,
20 market, and distribute products infringing Sugarfinas copyrights.
21 FIRST CLAIM FOR RELIEF
22 (Trade Dress Infringement)
23 (Lanham Act Section 43(a), 15 U.S.C. 1125(a))
24 96. Sugarfina incorporates and realleges the preceding paragraphs of this
25 Complaint as though set forth in full.
26 97. Sugarfina is the owner of all right and title to the distinctive
27 Sugarfina Trade Dress. The Sugarfina Trade Dress, as embodied in Sugarfina
28 products, has acquired secondary meaning, and is not functional. In addition, the
SUGARFINA, INC.S FIRST AMENDED
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1 Sugarfina Trade Dress, embodied in the packaging for the Sugarfina products, is
2 inherently distinctive and not functional.
3 98. In addition, based on extensive and consistent advertising, promotion
4 and sales throughout the United States, the Sugarfina Trade Dress has acquired
5 distinctiveness and enjoys secondary meaning among consumers, identifying
6 Sugarfina as the source of these products.
7 99. Sugarfinas extensive promotion of the distinctive Sugarfina Trade
8 Dress has resulted in Sugarfinas acquisition of valuable, legally protected rights in
9 the Sugarfina Trade Dress as well as considerable customer goodwill.
10 100. Defendants line of products has misappropriated the Sugarfina
11 Trade Dress by mimicking a combination of several elements of that trade dress.
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1 irreparable harm to Sugarfina, for which there is no adequate remedy at law, and for
2 which it is entitled to injunctive relief.
3 104. Sugarfina is informed and believes, and on that basis, alleges, that
4 Defendants have gained profits by virtue of their infringement of the Sugarfina
5 Trade Dress.
6 105. Sugarfina also has sustained damages as a direct and proximate
7 result of Defendants infringement of the Sugarfina Trade Dress in an amount to be
8 proven at trial.
9 106. Because Defendants actions have been willful, Sugarfina is entitled
10 to treble its actual damages or Defendants profits, whichever is greater, and to an
11 award of costs, and, this being an exceptional case, reasonable attorneys fees
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12 114. Sugarfina is informed and believes, and on that basis alleges, that
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1 marks.
2 125. Defendants unauthorized use of the infringing product lineup is
3 likely, if not certain, to deceive or to cause confusion or mistake among consumers
4 as to the origin, sponsorship or approval of Defendants product lineup and/or to
5 cause confusion or mistake as to any affiliation, connection or association between
6 Sugarfina and Defendants, in violation of 15 U.S.C. 1125(a).
7 126. Sugarfina is informed and believes, and on that basis alleges, that
8 Defendants infringement of Sugarfinas Registered Trademarks and unregistered
9 marks, as described herein, has been and continues to be intentional, willful and
10 without regard to Sugarfinas rights in its Registered Trademarks and unregistered
11 common law marks.
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12 127. Sugarfina is informed and believes, and on that basis alleges, that
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13 inherently distinctive, and, through Sugarfinas long use, has come to be associated
14 solely with Sugarfina as the source of the products on which it is used.
15 134. Defendants use of its infringing trade dress is likely to cause
16 confusion as to the source of Defendants products and is likely to cause others to
17 be confused or mistaken into believing that there is a relationship between
18 Defendants and Sugarfina or that Defendants products are affiliated with or
19 sponsored by Sugarfina.
20 135. The above-described acts and practices by Defendants are likely to
21 mislead or deceive the general public and therefore constitute fraudulent business
22 practices in violation of California Business & Professions Code 17200, et seq.
23 136. The above-described acts constitute unfair competition and trade
24 dress and trademark infringement under Section 43(a) of the Lanham Act, 15
25 U.S.C. 1125(a), and trademark infringement under Section 32 of the Lanham Act,
26 15 U.S.C. 1114, and are therefore unlawful acts in violation of California
27 Business & Professions Code 17200, et seq.
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SUGARFINA, INC.S FIRST AMENDED
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13 received, and will continue to profit from, the strength of the Sugarfina Trade
14 Dress, the Registered Marks, Sugarfinas common law trademarks.
15 140. As a direct and proximate result of Defendants wrongful conduct,
16 Sugarfina has been injured in fact and has lost money and profits, and such harm
17 will continue unless Defendants acts are enjoined by the Court.
18 141. Sugarfina has no adequate remedy at law for Defendants continuing
19 violation of Sugarfinas rights.
20 142. Defendants should be required to restore to Sugarfina any and all
21 profits earned as a result of their unlawful and fraudulent actions, or provide
22 Sugarfina with any other restitutionary relief as the Court deems appropriate.
23 FIFTH CLAIM FOR RELIEF
24 (Infringement of the 641 Patent)
25 (35 U.S.C. 271)
26 143. Sugarfina incorporates and realleges the preceding paragraphs of this
27 Complaint as though set forth in full.
28
SUGARFINA, INC.S FIRST AMENDED
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1 144. Defendants have infringed and continue to infringe the 641 Patent
2 by using, selling and/or offering to sell in the United States, and/or importing into
3 the United States one or more of Defendants infringing products identified in this
4 Complaint, which embody the design covered by the 641 Patent, in violation of 35
5 U.S.C. 271.
6 145. On information and belief, Defendants infringement of the 641
7 Patent has taken place with full knowledge of the patent and is willful, deliberate,
8 and intentional, and therefore gives rise to an exceptional case under 35 U.S.C.
9 285.
10 146. Defendants infringement of one or more claims of the 641 Patent
11 has injured Sugarfina, the precise amount of which cannot be ascertained at this
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13 Sugarfina has sustained, and will sustain, as a result of Defendants wrongful acts
14 in an amount to be proven at trial. Sugarfina is further entitled to recover from
15 Defendants any gains, profits, and advantages Defendants have obtained as a result
16 of their wrongful acts.
17 154. Sugarfina is also entitled to damages, pursuant to the Copyright Act
18 of 1976, 17 U.S.C. 101, et. seq., for Defendants willful and continued
19 infringement of the registered works and attorneys fees.
20 SEVENTH CLAIM FOR RELIEF
21 (Trade Libel)
22 155. Sugarfina incorporates and realleges the preceding paragraphs of this
23 Complaint as though set forth in full.
24 156. On June 17, 2017, Mr. Lemonis and Sweet Petes, in coordination
25 with each other and the other Defendants, published identical posts on Facebook
26 referring to this instant lawsuit: Its total bs and based on public records they
27 [Sugarfina] have a habit of doing it to others. These posts, hereinafter referred to
28 as the Defamatory Comments, were disseminated and published to Mr.
SUGARFINA, INC.S FIRST AMENDED
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12 marketplace and deceiving the purchasing public into believing that Defendants
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1 attorneys, and all others acting in privity or in concert with them, and their
2 parents, subsidiaries, divisions, successors and assigns, from further acts of
3 infringement of Sugarfinas asserted patent;
4 3. A judgment awarding Sugarfina all damages adequate to
5 compensate for Defendants infringement of Sugarfinas asserted patent, and in
6 no event less than a reasonable royalty for Defendants acts of infringement,
7 including all pre-judgment and post-judgment interest at the maximum rate
8 permitted by law;
9 4. A judgment awarding Sugarfina all damages, including treble
10 damages, based on any infringement found to be willful, pursuant to 35 U.S.C.
11 284, together with prejudgment interest;
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13 their officers, directors, agents, servants, employees, affiliates, attorneys, and all
14 others acting in privity or in concert with them, and their parents, subsidiaries,
15 divisions, successors and assigns, from directly or indirectly infringing the
16 Sugarfina Trade Dress, Registered Trademarks, unregistered common law
17 trademarks, or using any other product or packaging design or designations similar
18 to or likely to cause confusion with the Sugarfina Trade Dress, Registered
19 Trademarks, and unregistered common law trademarks; from passing off
20 Defendants products as being associated with and or sponsored or affiliated with
21 Sugarfina; from committing any other unfair business practices directed toward
22 obtaining for themselves the business and customers of Sugarfina; and from
23 committing any other unfair business practices directed toward devaluing or
24 diminishing the brand or business of Sugarfina.
25 6. Actual damages suffered by Sugarfina as a result of Defendants
26 unlawful conduct, in an amount to be proven at trial, as well as prejudgment
27 interest as authorized by law;
28 7. Reasonable funds for future corrective advertising;
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12 remedies provided for in 15 U.S.C. 1117, Cal. Bus. & Prof Code 17200, et seq.,
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EXHIBIT 1
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EXHIBIT 2
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EXHIBIT 3
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EXHIBIT 4
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EXHIBIT 5
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Under the Paperwork Reduction Act of 1995 no persons are required to respond to a collection of information unless it displays a valid OMB control number.
PTO Form 1478 (Rev 09/2006)
OMB No. 0651-0009 (Exp 02/28/2018)
The applicant, Sugarfina, LLC, a limited liability company legally organized under the laws of Delaware, having an address of
3915 W. 102nd Street
Inglewood, California 90303
United States
requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register
established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following:
A fee payment in the amount of $275 has been submitted with the application, representing payment for 1 class(es).
Declaration
The signatory believes that: if the applicant is filing the application under 15 U.S.C. 1051(a), the applicant is the owner of the
trademark/service mark sought to be registered; the applicant is using the mark in commerce on or in connection with the goods/services in the
application; the specimen(s) shows the mark as used on or in connection with the goods/services in the application; and/or if the applicant filed
an application under 15 U.S.C. 1051(b), 1126(d), and/or 1126(e), the applicant is entitled to use the mark in commerce; the applicant has a
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bona fide intention, and is entitled, to use the mark in commerce on or in connection with the goods/services in the application. The signatory
believes that to the best of the signatory's knowledge and belief, no other persons, except, if applicable, concurrent users, have the right to use the
mark in commerce, either in the identical form or in such near resemblance as to be likely, when used on or in connection with the goods/services
of such other persons, to cause confusion or mistake, or to deceive. The signatory being warned that willful false statements and the like are
punishable by fine or imprisonment, or both, under 18 U.S.C. 1001, and that such willful false statements and the like may jeopardize the
validity of the application or any registration resulting therefrom, declares that all statements made of his/her own knowledge are true and all
statements made on information and belief are believed to be true.
Declaration Signature
EXHIBIT 6
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US00D755641S
FIG 5
FIG. 6
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EXHIBIT 7
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EXHIBIT 8
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EXHIBIT 9
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SWEET PETES
ACCUSED PRODUCTS
4. Candy Cube
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5. Candy Concierge