U.B.U. sues Sears over UBEU brand

Case 3:07-cv-01424-ARC
Document 1
Filed 08/03/2007
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
UBU CLOTHING CORPORATION and
ALAN BLAU,
Plaintiffs
v.
SEARS BRANDS, LLC, and
SEARS, ROEBUCK AND CO.,
Defendants
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CIVIL ACTION - LAW
Filed Electronically
COMPLAINT
Plaintiffs UBU Clothing Corporation and Alan Blau, by and through their
attorney, Mitchell A. Smolow, for their Complaint against the Defendants Sears
Brands, LLC and Sears, Roebuck and Co., allege as follows:
THE PARTIES
1. UBU Clothing Corporation (“UBU”), is a Pennsylvania corporation with
a principal place of business at 900 Rutter Avenue, Forty Fort, Pennsylvania
18704.
2. Alan Blau (“Blau”) is and individual with a principal place of residence
at 1913 Firethorn Lane, Villanova, PA 19085.
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3. Upon information and belief, Defendant Sears Brands, LLC (“Sears
Brands”) is an Illinois limited liability corporation with its principal place of
business at 3333 Beverly Road, Hoffman Estates, IL 60179.
4. Upon information and belief, Defendant Sears, Roebuck and Co. (“Sears
Roebuck”) is a New York corporation with a principal place of business at 3333
Beverly Road, Hoffman Estates, IL 60179.
5. Sears Brands and Sears Roebuck henceforth are collectively referred to
as “the Defendants”.
BACKGROUND AND FACTUAL AVERMENTS COMMON TO ALL
COUNTS
6. UBU designs, markets and distributes clothing and accessories labeled
with its UBU trademark.
7. UBU distributes its UBU labeled goods to over three thousand (3,000)
specialty stores and exclusively to the Nordstrom department store chain.
8. Upon information and belief, the Nordstrom department store chain is
frequently located within the same retail shopping mall as the Defendants.
9. Blau is the owner of U.S. Trademark Registration No. 1,989,387 for
U.B.U. INTERNATIONAL (the “ ‘387 Registration”) issued July 30, 1996 for
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garment dyed and washed, cotton knit and woven clothing, namely, pants, shirts,
vests, blouses and jackets.
10. Blau is the owner of U.S. Trademark Registration No. 2,424,291 for
U.B.U. (the “ ‘291 Registration”) issued January 30, 2001 for garment dyed and
washed, cotton knit and woven clothing, namely, pants, shirts, vests, blouses and
jackets.
11. Both registrations are based on use since at least as early as January 5,
1992 and are both valid and subsisting and remain in full force and effect.
12. Both registrations have become incontestable pursuant to 15 U.S.C.
§1065. A copy of said registrations are attached hereto as Exhibit “A”.
13. On June 7, 2007, a “Section 7” amendment was filed with the U.S.
Trademark Office seeking to amend the ‘291 Registration to UBU. The request to
remove the periods is pending.
14. UBU is the exclusive licensee of the UBU and UBU INTERNATIONAL
marks (collectively, “the UBU marks”).
15. UBU is a close corporation of which Blau is a shareholder.
16. Since at least 1992, Blau, UBU or a corporation exclusively licensed by
Blau has conducted business using the UBU marks.
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17. As a result of extensive advertising and use, the UBU marks have come
to be identified with plaintiffs as the source of origin of their goods. As a result of
this recognition, the UBU marks and their attendant goodwill are extremely
valuable to plaintiffs.
18. Upon information and belief, Defendants are also marketers and sellers of
clothing and accessories.
19. Upon information and belief, Defendants have and are continuing to
market and sell their “Back to School” clothing collection under a UBEU
trademark both within Pennsylvania and nationwide.
20. Defendants have designated their UBEU mark with a “TM”.
21. Defendants have marketed and sold their UBEU marked Back to School
clothing collection in both print catalogue and web advertising. A sample of such
advertising is attached as Exhibit B.
22. Upon information and belief, Defendants market and sell using their
UBEU mark within their retail stores.
23. Upon information and belief, Defendants market and sell using their
UBEU mark in their television advertising.
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24. Upon information and belief, Defendants did not market and sell using
their UBEU mark prior to the 2007 Back To School clothing collection.
25. Upon information and belief, Defendants are planning to continue to
market and sell using their UBEU mark.
26. Plaintiffs became aware of Defendants’ use of their UBEU mark on or
about July 18, 2007 when inquiry by a relative was made of one of UBU’s officers
as to when “Sears” began selling UBU’s clothing.
27. Since that date, plaintiffs have received additional inquiries from multiple
sources as to when Defendants began selling UBU’s goods.
COUNT I
Trademark Infringement Under The Lanham Act
Jurisdiction and Venue
28. This claim arises under the provisions of the Trademark Act of 1946, 15
U.S.C. §1051, et. seq., particularly under 15 U.S.C. §1114(1), and is for the
infringement of trademarks registered in the United States Patent and Trademark
Office.
29. The Court has jurisdiction over the subject matter of this claim pursuant
to 15 U.S.C. §1121 and 28 U.S.C. §1338.
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30. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391.
Background and Factual Averments
31. Plaintiff repeats and realleges the allegations contained in Paragraphs 126 hereof as is fully set forth herein.
32. Defendants’ use of their UBEU mark has been without the consent of
plaintiffs, has caused confusion and is likely to continue to cause confusion as to
source, sponsorship, or affiliation and, in particular, tends to and does falsely
create the impression that the clothing marketed under their UBEU mark is
authorized, approved, or sponsored by plaintiffs when, in fact, it is not.
33. Plaintiffs have no control over the presentation, or appearance of
Defendants’ facilities, have no control over the presentation, format, or content of
Defendants’ advertisements, nor any control over how UBEU is used, and because
of the confusion as to the source created by Defendants, plaintiff’s goodwill with
its UBU marks is at the mercy of Defendants.
34. On or about August 3, 2007, counsel for plaintiffs sent a letter to
Defendants requesting that Defendants abandon the use of the UBEU mark.
35. Defendants’ activities complained of herein constitute willful and
intentional infringement of plaintiffs’ UBU marks, have disregarded plaintiffs’
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rights, and have continued in spite of Defendants’ knowledge that the use of their
UBEU mark is in direct contravention of plaintiffs’ rights.
36. Plaintiffs have no adequate remedy at law and are suffering irreparable
harm and damage as a result of the acts of Defendants complained of herein.
COUNT II
False Designations of Origin And False Descriptions And Representations
Jurisdiction and Venue
37. This claim arises under the provisions of the Trademark Act of 1946, 15
U.S.C. §1051, et. seq., particularly under 15 U.S.C. §1125(a), and alleges the use
in commerce of false designations of origin and false descriptions and
representations.
38. The Court has jurisdiction over the subject matter of the claim pursuant
to 15 U.S.C. §1121 and 28 U.S.C. §1391.
39. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391.
Background and Factual Averments
40. Plaintiff repeats and realleges the allegations contained in Paragraphs 135 hereof as is fully set forth herein.
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41.
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Upon information and belief, Defendants have used in conjunction
with their UBEU mark, false designations of origin and false descriptions and
representations, including words, terms, names, or symbols which tend to cause
confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
association of Defendants with plaintiffs, or as to the origin, sponsorship, or
approval of Defendants’ goods, services, or commercial activities by plaintiffs and
has caused such to enter into commerce with full knowledge of the falsity of such
designations of origin and such descriptions and representations, all to the
detriment of plaintiffs; in particular, the displaying of their UBEU mark in
conjunction with the sale of clothing constitutes false descriptions and
representations with the express intent to falsely describe or represent such goods
offered, to trade upon the reputation of plaintiffs, and to improperly appropriate the
valuable trademark rights of plaintiffs.
42. Upon information and belief, Defendants have used in conjunction with
their UBEU mark, false designations of origin and false descriptions and
representations, including words, terms, names, or symbols which in commercial
advertising and promotion tend to misrepresent the nature, characteristics, and
qualities of Defendants goods and commercial activities and has caused such to
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enter into commerce with full knowledge of the falsity of such designations of
origin and such descriptions and representations, all to the detriment of plaintiffs;
in particular, the displaying of their UBEU mark in conjunction with print, web,
and television advertisements constitute false descriptions and representations with
the express intent to falsely describe or represent such goods offered in
conjunction with Defendants’ name, to trade upon the reputation of plaintiffs, and
to improperly appropriate the valuable trademark rights of plaintiffs.
43. Upon information and belief, Defendants’ activities complained of herein
constitute federal unfair competition.
44. Plaintiffs have no adequate remedy at law and is suffering irreparable
harm and damage as a result of the acts of Defendants complained of herein.
COUNT III
Common Law Trademark Infringement and Unfair Competition
Jurisdiction And Venue
45. This claim arises under the common laws of this Commonwealth relating
to trademark infringement and unfair competition.
46. This Court has jurisdiction over the subject matter of this claim pursuant
to the provisions of 28 U.S.C. §1338(b), thus being a claim of unfair competition
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joined with substantial and related claims under the Trademark Laws of the United
States as set forth in Counts I and II, and under the Doctrine of Pendant
Jurisdiction as embodied in 28 U.S.C. §1367.
47. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391.
Background and Factual Averments
48. Plaintiff repeats and realleges the allegations contained in Paragraphs 143 as is fully set herein.
49. As more fully set forth above, the UBU marks have acquired a
recognition in the minds of the public as identifying plaintiffs and is indicative of
origin, sponsorship, and/or association with plaintiffs. The public is likely to
attribute to plaintiffs the use by Defendants of their UBEU mark as a source of
origin, authorization, and/or sponsorship for Defendants’ marketing of clothing
and, therefore, to lead the public to Defendants’ facilities in that erroneous belief.
50. Upon information and belief, Defendants have intentionally appropriated
the goodwill associated with the UBU marks and have used it in association with
marketing of clothing with the intent of causing confusion, mistake, and deception
as to the source of goods, and with the intent to present their clothing as that of
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plaintiffs, and as such, Defendants have committed trademark infringement and
unfair competition under the common law.
51. Upon information and belief, Defendants’ conduct complained of herein
constitutes common law trademark infringement and unfair competition.
52. Plaintiffs have no adequate remedy at law and have suffered irreparable
harm and damage as a result of Defendants’ acts as aforesaid.
COUNT IV
Federal Dilution Under The Lanham Act
Jurisdiction and Venue
53. This claim arises under the provisions of the Trademark Act of 1946, 15
U.S.C. §1125(c), and is for the dilution of trademarks.
54. This Court has jurisdiction over the subject matter of this claim pursuant
to 15 U.S.C. §1121 and 28 U.S.C. §1338.
55. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391.
Background and Factual Averments
56. Plaintiff repeats and realleges the allegations contained in contained in
Paragraphs 1-51 hereof as is fully set herein.
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57. The UBU marks have been used in commerce for over fifteen (15) years
and due to such use and widespread advertising, have become famous and have
gained a distinctive quality in the minds of the public.
58. Defendants engage in interstate commerce.
59. Upon information and belief, Defendants’ market and sell to a less
affluent, less discriminating customer of clothing than does Nordstrom.
60. Upon information and belief, such marketing and selling occurs within
the same mall as Nordstrom’s, UBU’s exclusive mall retailer.
61. Defendants’ use of their UBEU mark has been without the consent of
plaintiffs and has caused dilution of the UBU mark.
62. Plaintiffs have no adequate remedy at law and are suffering irreparable
harm and damages as a result of the acts of Defendants complained of herein.
COUNT V
State Law Dilution
Jurisdiction and Venue
63. This claim arises under 54 Pa. C.S.A. §1124 and the common law of this
Commonwealth relating to injury to business reputation and dilution of trademarks.
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64. This Court has jurisdiction over the subject matter of this claim pursuant
to the provisions of 28 U.S.C. §1338(b), this being a claim of dilution joined with
substantial and related claims under the Trademark Laws of the United States, to
wit: Counts I, II, and IV and under the Doctrine of Pendant Jurisdiction as
embodied in 28 U.S.C. §1367.
65. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391.
Background and Factual Averments
66. Plaintiff repeats and realleges the allegations contained in Paragraphs 161 hereof as is fully set herein.
67. Defendants intended to willfully appropriate the goodwill of the UBU
marks when Defendants chose to market and sell using their UBEU mark.
68. Defendants’ use of their UBEU mark weakens the commercial value of
the UBU marks.
69. Defendants’ use of their UBEU mark has diluted the distinctive quality of
the UBU marks.
70. Plaintiffs have no adequate remedy at law and are suffering irreparable
harm and damages as a result of the acts of Defendants complained of herein.
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WHEREOF, plaintiffs demand:
1. That a permanent injunction be issued enjoining Defendants:
A.
From using their UBEU mark;
B.
From using any logo, trademark, or trade name which may be
calculated to falsely represent or which has the effect of falsely
representing that the goods of Defendants or of third parties are
sponsored by, authorized by, or in any way associated with
plaintiffs;
C.
From infringing the UBU marks;
D.
From otherwise unfairly competing with plaintiffs;
E.
From falsely representing themselves as being connected with
plaintiffs, or sponsored by or associated with plaintiffs, or
engaging in any act which is likely to falsely cause the public to
believe that Defendants are associated with plaintiffs; and
F.
From affixing, applying, annexing, or using in connection with
their marketing of clothing, a false designation or description or
representation, including words, terms, name, or other symbols,
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tending falsely to describe or represent the items displayed as
being those of plaintiffs.
2. That Defendants be required to account to plaintiffs for all of Defendants’
profits and the actual damages suffered by plaintiffs as a result of
Defendants’ acts of infringement, dilution, and unfair competition.
3. That plaintiffs have a recovery from Defendants of three times the
amount of actual damages, pursuant to 15 U.S.C. §1117.
4. That plaintiffs have a recovery from Defendants of the costs of this action
and plaintiffs’ reasonable counsel fees pursuant to 15 U.S.C. §1117.
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5. That plaintiffs be granted all other relief and further relief as the Court
may deem just and proper.
Respectfully submitted,
Mitchell A. Smolow
PA 80307
720 Hampton Road
Shavertown, PA 18708
570-714-4000 (O)
570-696-3320 (F)
[email protected]
Attorney for Plaintiffs
Date: August 3, 2007
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Record 57 out of
107
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Typed Drawing
Word Mark
U.B.U.
Goods and Services
IC 025. US 022 039. G & S: garment dyed and washed, cotton knit and woven clothing,
namely, pants, shirts, vests, blouses and jackets. FIRST USE: 19920105. FIRST USE IN
COMMERCE: 19920105
Mark Drawing Code
(1) TYPED DRAWING
Serial Number
75227125
Filing Date
January 17, 1997
Current Filing Basis
1A
Original Filing Basis
1A
Published for Opposition June 30, 1998
Registration Number
2424291
Registration Date
January 30, 2001
Owner
(REGISTRANT) BLAU, ALAN INDIVIDUAL UNITED STATES 1913 Firethorne Lane
Villanova PENNSYLVANIA 19085
Prior Registrations
1989387
Type of Mark
TRADEMARK
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Register
PRINCIPAL
Affidavit Text
SECT 15. SECT 8 (6-YR).
Live/Dead Indicator
LIVE
Filed 08/03/2007
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107
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Typed Drawing
Word Mark
U.B.U. INTERNATIONAL
Goods and Services
IC 025. US 022 039. G & S: garment dyed and washed, cotton knit and woven clothing,
namely, pants, shirts, vests, blouses and jackets. FIRST USE: 19920105. FIRST USE IN
COMMERCE: 19920105
Mark Drawing Code
(1) TYPED DRAWING
Serial Number
74416269
Filing Date
July 23, 1993
Current Filing Basis
1A
Original Filing Basis
1A
Published for Opposition May 7, 1996
Registration Number
1989387
Registration Date
July 30, 1996
Owner
(REGISTRANT) Blau, Alan TA U.B.U. International INDIVIDUAL UNITED STATES 1913
Firethorn Lane Villanova PENNSYLVANIA 19085
Attorney of Record
MITCHELL SMOLOW, ESQ.
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Disclaimer
NO CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE "INTERNATIONAL" APART
FROM THE MARK AS SHOWN
Type of Mark
TRADEMARK
Register
PRINCIPAL
Affidavit Text
SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20051205.
Renewal
1ST RENEWAL 20051205
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