Case 1:11-cv-11763-RBC Document 1

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

POR-SHUN, INC., Plaintiff v. BRUCE JENKS d/b/a MAPLE VALLEY CREAMERY, Defendant

) ) ) ) ) ) ) ) )

CIVIL ACTION NO. __________

COMPLAINT FOR COMMON LAW TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

INTRODUCTION 1. The plaintiff, Por-Shun, Inc., brings this civil action against Bruce Jenks, doing business as Maple Valley Creamery, for infringement of the plaintiff's unregistered trademark and for unfair competition. The plaintiff has a valid, distinctive, common law trademark, "Sugar Maple Creamery," which the plaintiff has used continuously since April 1, 2009. The plaintiff owns this trademark, has priority of use over the defendant, and the defendant's use of "Maple Valley Creamery" is likely to cause confusion, mistake or deception with the plaintiff's trademark. The plaintiff has notified the defendant, in writing, that the defendant is infringing on its trademark, but the defendant has refused to stop its infringing actions.

JURISDICTION AND VENUE 2. This Honorable Court has subject matter jurisdiction over this action under 15 U.S.C. 1121 and 1125(a) and 28 U.S.C. 1331 and 1338 because it involves substantial claims arising under the Lanham Act. 3. Venue is proper in this Court pursuant to 28 U.S.C. 1391 as defendant may be found or transacts business in this district and the claims alleged arose and are continuing to occur in this district.

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PARTIES 4. Plaintiff Por-Shun, Inc. is a corporation organized and existing under the laws of the Commonwealth of Massachusetts, having an office and place of business at 16 Upton Drive, Wilmington, Massachusetts, 01887. 5. Upon information and belief, defendant Bruce Jenks is an individual doing business as Maple Valley Creamery, in Hadley, Massachusetts, 01035.

STATEMENT OF FACTS 6. Plaintiff is in the business of producing and distributing food products, including dairy products, ice cream, frozen yogurt and sorbet. Since April 1, 2009, the plaintiff has sold and distributed ice cream, frozen yogurt and sorbet in interstate commerce under the SUGAR MAPLE CREAMERY trademark. 7. Plaintiff has used the SUGAR MAPLE CREAMERY common law trademark in interstate commerce in connection with its products since April 1, 2009. The plaintiff uses this mark on its packaging, labeling and marketing for its products. 8. Plaintiff has made every effort to maintain the highest standards of quality for its products. By use for the past two and one-half years, the plaintiff has created invaluable good will under its trademark among its customers. 9. Defendant operates an ice cream business and sells its products under the name "Maple Valley Creamery." This name and mark appears on its labels and packages. The defendant began using this name well after the plaintiff had established its trademark. 10. In June and July, 2011, counsel for the plaintiff contacted the defendant by letter regarding the defendants use of "Maple Valley Creamery," for the sale and distribution of ice cream and related products. Plaintiff's counsel stated in writing that the plaintiff believes the defendant's use of "Maple Valley Creamery" to be confusingly similar to the plaintiff's common law trademark, "Sugar Maple Creamery," and to be an infringement of the plaintiff's common law trademark. Plaintiff's counsel requested that the defendant cease and desist from using "Maple Valley Creamery" in the distribution of ice cream and related products. 11. The defendant has refused to comply with the aforementioned request, and the defendant continues to willfully infringe the plaintiff's common law trademark, by continuing to offer for sale and sell ice cream and related products, and has engaged in unfair competition in connection with such sales and distribution, thus causing irreparable damage to the plaintiff. 12. The plaintiff has filed an application for trademark registration with the United States Patent and Trademark Office for the SUGAR MAPLE CREAMERY trademark. Serial No. 85375298.

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13. The defendant will continue to infringe the plaintiff's trademark unless enjoined by this Court.

COUNT I - CLAIM FOR TRADEMARK INFRINGEMENT 14. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-13 above, inclusive, as though fully set forth herein. 15. The plaintiff hereby alleges that the defendant has violated the Lanham Act, 15 U.S.C. Section 1125(a), by infringing upon the plaintiff's unregistered trademark, "SUGAR MAPLE CREAMERY." 16. The defendant's use of "Maple Valley Creamery," is too confusingly similar to the plaintiff's SUGAR MAPLE CREAMERY trademark. The defendant's continued use of "Maple Valley Creamery," will infringe on the plaintiff's mark, and will mislead consumers into believing that its goods originate with or are authorized by the plaintiff. 17. The defendant's products are offered for sale in the marketplace and in venues that are very similar to those marketplaces and venues where the plaintiff's products are marketed, sold and distributed, making confusion very likely. 18. Based upon the allegations above, there is an actual and substantial controversy between the plaintiff and defendant, who have adverse legal interests. 19. The plaintiff's first use of its SUGAR MAPLE CREAMERY mark in interstate commerce occurred approximately two years before the defendant's initial use of its confusingly similar "Maple Valley Creamery." 20. The defendant's unauthorized use of a confusingly similar mark in the sale, advertising and promotion of its goods infringes on the plaintiff's common law trademark. 21. The defendant's continued use of the above referenced confusingly similar mark, as alleged herein, with the knowledge of the plaintiff's ownership of the mark, constitutes a willful infringement. 22. Injunctive relief is necessary to protect the plaintiff's mark, and the plaintiff has no other means by which to control the continuing infringement of its trademark. The plaintiff has been and will continue to suffer irreparable injury for which no adequate remedy exists at law. 23. The plaintiff also seeks damages and attorneys' fees for the defendant's infringement.

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COUNT II - CLAIM FOR UNFAIR COMPETITION 24. Plaintiff realleges and incorporates by reference the allegations of paragraphs 1-23 above, inclusive, as though fully set forth herein. 25. The plaintiff hereby alleges that the defendant has violated the Lanham Act, 15 U.S.C. Section 1125, by engaging in unfair competition. 26. Under the Lanham Act, equitable principles dictate that business should be conducted fairly and in good faith, and the defendant has violated such principles by being unjustly enriched by its unfair conduct which has led or is likely to lead to deception and confusion in them marketplace. 27. The defendant's unauthorized use of a confusingly similar mark in the sale, advertising and promotion of its goods constitutes unfair competition with respect to the plaintiff. 28. The defendant's continued use of the above referenced confusingly similar mark, as alleged herein, with the knowledge of the plaintiff's ownership of the mark, constitutes unfair competition. 29. Injunctive relief is necessary to protect the plaintiff's mark, and the plaintiff has no other means by which to control the continuing unfair competition from the defendant. The plaintiff has been and will continue to suffer irreparable injury for which no adequate remedy exists at law. 30. The plaintiff also seeks damages and attorneys' fees for the defendant's infringement.

REQUEST FOR RELIEF WHEREFORE, in consideration of the foregoing, the plaintiff respectfully requests that this Honorable Court enter an Order granting it the following relief: A. Entering a judgment that plaintiff's "SUGAR MAPLE CREAMERY" mark has been and continues to be infringed upon by the defendant in violation of 15 U.S.C. 1125(a); B. An Order permanently enjoining the defendant, its officers, directors, agents, servants, employees, successors, assigns and attorneys, as well as all of those in active concert or participation with it, from:

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(i) (ii)

using or attempting to use the name "Maple Valley Creamery"; and doing any other act likely to infringe upon the distinctive quality of the plaintiffs "SUGAR MAPLE CREAMERY" mark.

C. An Order that the defendant be required to deliver up and destroy all products, labels, packages, wrappers, advertisements, promotions and all other matter in the custody or under the control of defendant that bears the Maple Valley Creamery name. D. An Order awarding the plaintiff monetary relief in an amount to be fixed by the Court in its discretion as just, including (i) all profits received by defendant from sales and revenues of any kind made as a result of sales under the Maple Valley Creamery name, this amount to be trebled; all damages sustained by plaintiff as a result of defendants actions, this amount to be trebled; the costs of the action; all reasonable attorneys fees incurred by the plaintiff; and any further relief that this Court may deem just.

(ii)

(iii) (iv) (v)

Respectfully submitted, Por-Shun, Inc., Plaintiff, By its attorney,

/s/ David C. McBride David C. McBride 19 Cherry Street Danvers, MA 01923 (978) 777 7733 dcmlawyer@aol.com Dated: October 4, 2011