Allied Lomar v. Lone Star Distillery - Cowboy Bourbon Trademark Complaint PDF

Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 1 of 24
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A Professional Corporation
Redwood City
Ropers Majeski Kohn & Bentley
ROBERT P. ANDRIS (SBN 130290)

MICHAEL D. KANACH (SBN 271215)
ROPERS, MAJESKI, KOHN & BENTLEY
1001 Marshall Street, Suite 500
Redwood City, CA 94063-2052
Telephone:
(650) 364-8200
Facsimile:
(650) 780-1701
Email:
randaris@rmkb.com
mkanach@rmkb.com
Attorneys for Plaintiff
ALLIED LOMAR, INC.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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ALLIED LOMAR, INC.,
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CASE NO.
Plaintiff,
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v.
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LONE STAR DISTILLERY, LLC DBA

GARRISON BROTHERS DISTILLERY;
and DOES 1 THROUGH 10
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Defendants.
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COMPLAINT FOR FEDERAL

TRADEMARK INFRINGEMENT [15
U.S.C., 1114 et seq.], FEDERAL FALSE
ADVERTISING [15 U.S.C. 1125(a)],
FEDERAL FALSE DESIGNATION OF
ORIGIN [15 U.S.C. 1125(a)], FEDERAL
UNFAIR COMPETITION [15 U.S.C.
1125(a)], CALIFORNIA UNFAIR
COMPETITION [Cal. Bus. & Prof. Code,
17200 et seq.], CALIFORNIA DILUTION
[Cal. Bus. & Prof. Code, 14330 et seq.],
CALIFORNIA FALSE ADVERTISING
[Cal. Bus. & Prof. Code, 17500 et seq.]
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DEMAND FOR JURY TRIAL
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Plaintiff ALLIED LOMAR, INC. (Plaintiff), for its Complaint for Trademark
Infringement alleges as follows against Defendant LONE STAR DISTILLERY, LLC, dba
Garrison Brothers Distillery, and DOES 1-10 (collectively, Defendants):
INTRODUCTION
1.
RC1/7533355.1/RS
This is an action to redress violations of the federal trademark and unfair

TRADEMARK INFRINGEMENT
competition laws (15 U.S.C. 1114 et seq., and 1125 et seq.), as the result of Defendants
willful and unauthorized use of Plaintiffs registered trademark and trade name, as more fully set
forth herein. Plaintiff seeks injunctive relief restraining Defendants infringement of Plaintiffs
trademarks and trade names, as well as damages that are the direct and proximate result of the
infringement. In addition to damages and permanent injunctive relief, Plaintiff seeks an
accounting, the imposition of a constructive trust upon Defendants illegal profits, and other
relief.
Redwood City
THE PARTIES
2.
Plaintiff Allied Lomar, Inc., is a California corporation organized and existing
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under the laws of California with a principal place of business at 1199 Howard Ave., Suite 350,
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Burlingame, California 94010. Plaintiff is in the business of selling, marketing, and distributing
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distilled spirits, including bourbon whiskey under the federally registered trademark COWBOY
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LITTLE BARREL.
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Upon information and belief, Lone Star Distillery, LLC, dba Garrison Brothers
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Distillery, is a company organized an existing under the laws of Texas, with a principal place of
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business at 1827 Hye Albert Rd., Hye, Texas 78635, and a post office box address of P.O.Box
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5932, Austin, Texas 78763.
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4.
The true names and capacities, whether individual, corporate, associate or
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otherwise, of Defendants DOES 1 through 10, inclusive, are unknown to Plaintiff, who therefore
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sues said Defendants by such fictitious names. Plaintiff will seek leave of the Court to amend this
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Complaint when the names of said Defendants have been ascertained.
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Plaintiff is informed and believes, and upon such information and belief alleges,
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that at all times herein mentioned Defendant DOES 1 through 10, inclusive, were the agents,
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employees, servants, consultants, principals, employers or masters of each of their Co-Defendants
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and each Defendant has ratified, adopted or approved the acts or omissions hereinafter set forth of
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the remaining Defendants. Plaintiff is further informed and believes, and upon such information
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and belief alleges, that each of these fictitiously named Defendants is responsible in some manner
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for acts and/or omissions herein alleged.

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involved in the distilling, distribution, marketing and/or sales of distilled spirits, including
whiskey marketed and sold using the unregistered name COWBOY BOURBON, with an
emphasis on the word COWBOY.
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online and through their website and have marketed, advertised, and/or offered for sale their
products, including COWBOY BOURBON in the state of California.
Redwood City
Upon information and belief, Defendants advertise and market their whiskey
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Upon information and belief, Defendants individually and collectively are
JURISDICTION AND VENUE

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This Court has subject matter jurisdiction under 15 U.S.C. 1121 and 28 U.S.C.
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1338(a), in that this case arises under the trademark laws of the United States. Specifically, this
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is an action for federal trademark infringement arising under Section 32 of the Lanham Act,
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15 U.S.C. 1114 et seq.; federal and common law infringement and unfair competition because
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of false advertising and false designation of origin under Section 43(a) of the Lanham Act,
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15 U.S.C. 1125(a); and for related claims of common law trademark infringement and California
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unfair competition, false advertising, and dilution. The Court has jurisdiction over the subject
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matter of the related unfair competition claims pursuant to 28 U.S.C. 1338(b) because those
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claims are joined with substantial and related claims brought under the trademark laws.
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This Court has personal jurisdiction over Defendants, and venue is proper in this
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Judicial District pursuant to 28 U.S.C. l391(b) because, inter alia, (a) Defendants and/or their
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agents, are doing business in this District and operating an interactive website; and (b) events
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giving rise to this lawsuit, as well as substantial injury to Plaintiff, have occurred or will occur in
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interstate commerce, in the State of California, and in the Northern District of California as a
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result of Defendants violations of the asserted trademark as alleged in detail below. Defendants
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and/or their agents have purposefully availed themselves of the opportunity to conduct
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commercial activities in this forum. For example, Defendants advertise their COWBOY
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BOURBON for sale to retail stores and restaurants, bars, and hotels in the state of California.
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10.
Venue is proper in this District pursuant to 28 U.S.C. 1400(a) in that
Defendants conduct commercial activities in this District, and pursuant to 28 U.S.C. 1391(c) as
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Defendants are corporations and are deemed to reside in any judicial district in which it is subject
to personal jurisdiction at the time the action is commenced.
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A.
Plaintiffs Registered Trademark

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Plaintiff owns a valid federally registered trademark for the word mark
"COWBOY LITTLE BARREL" in International Class 033 for Bourbon Whiskey. U.S.
Registration No. 2777811 was filed on February 8, 2001, and registered on October 28, 2003,
with a first use in commerce at least as early as August 31, 1995. [EXHIBIT 1]
Redwood City
FACTS
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Plaintiffs registration for the mark COWBOY LITTLE BARREL is valid,
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subsisting, and conclusive evidence of the validity of the mark, Plaintiffs ownership of the mark,
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and Plaintiffs exclusive right to use the mark COWBOY LITTLE BARREL in commerce on
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or in connection with the goods and services specified therein.
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Plaintiff uses the mark "COWBOY LITTLE BARREL" in commerce as a word
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mark and a stylized logo in its advertising and sale of bourbon whiskey and has used the mark in
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commerce since at least as early as 1995.
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Plaintiffs labels for "COWBOY LITTLE BARREL" bourbon whiskey
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emphasize the word COWBOY in commerce as a word mark and a stylized logo in its
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advertising and sale of bourbon whiskey. Plaintiffs labels depict a silhouette of a cowboy on a
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horse above the word COWBOY. Below are three images of Plaintiffs COWBOY LITTLE
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BARREL mark used on bottles of bourbon. These images are from specimens filed with the
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USPTO related to U.S. Registration No. 2777811, each of which shows the word COWBOY in
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larger sized font above the words LITTLE BARREL:
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Redwood City
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Whiskey is defined in the Standards of Identity for Distilled Spirits in the
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Code of Federal Regulations on Labeling and Advertising of Distilled Spirits. Title 27 CFR,
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Part 5. According to Title 27 CFR, Part 5(c), specifically Section 5.22, there are several different
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types of whiskey, including, bourbon whisky, rye whisky, wheat whisky, malt
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whisky, rye malt whisky, corn whisky, spirit whisky, light whisky, Scotch whisky,
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Irish whisky, and Canadian whisky. The word COWBOY is not defined in Section 5.22.
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The word COWBOY does not describe any particular type or attribute of whiskey. Rather,
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plaintiffs use of the word COWBOY as a brand refers consumers to Plaintiff as the source.
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B.
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Plaintiff's State Law and Common Law Rights:

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Plaintiff has a long history of using the marks COWBOY and COWBOY
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LITTLE BARREL as an indication of source in marketing and sales of bourbon whiskey. As a
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result, consumers associate the marks COWBOY and COWBOY LITTLE BARREL, when
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related to distilled spirits, whiskey, and/or bourbon, with Plaintiff.
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Plaintiff, while based in California, has offered for sale, advertised, and sold its
distilled spirits domestically and internationally for years.
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COWBOY and COWBOY LITTLE BARREL out of its California offices since at least as
early as 1995.
C.
Defendants Infringing Acts

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Upon information and belief, Defendants individually and collectively are
involved in the distilling, distribution, marketing and/or sales of a bourbon whiskey marketed and
sold using the unregistered name COWBOY BOURBON.
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Redwood City
Plaintiff has offered for sale, advertised, and sold whiskey under the trade names
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Upon information and belief, Defendants advertise and market their whiskey
online and through their respective websites and have marketed, sold, and/or distributed their
products in at least several states throughout the United States, including COWBOY BOURBON.
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Defendants use of the mark emphasizes the word COWBOY which is in all-
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capital letters and large font above the descriptive word BOURBON. Defendants label also
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states Limited Production Hand Crafted Bourbon. Below are images of Defendants
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COWBOY BOURBON mark in use on bottles of bourbon whiskey.
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Plaintiff is informed and believes, and upon that basis alleges, that beginning at a
time unknown, but after Plaintiff's first use in commerce and continuing to the present,
Defendants actively engaged in the illegal and unlawful business of advertising, distributing,
and/or selling a deceptively confusing product line related to distilled spirits, namely bourbon
whiskey, including use of Plaintiffs COWBOY trademark and trade name, or imitation thereof.
Below is a screenshot of Defendants website www.garrisonbros.com as of June 25, 2014, which
prominently features advertisements for COWBOY BOURBON whiskey on the homepage:
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Redwood City
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Defendants use of the COWBOY BOURBON mark began at an unknown
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date and time, and, upon information and belief, began after February 20, 2012. On February 20,
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2012, Defendant filed a trademark application for the mark COWBOY BOURBON in
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International Class 33 for Whiskey (US Serial No. 85544721). The application was filed as an
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intent-to-use application under 1(b). Upon information and belief, Defendants have not filed a
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Statement of Use or specimen showing use of the mark. Defendants disclaimed the word
BOURBON, which is descriptive of the bourbon whiskey product Defendants sell.
Redwood City
On, June 29, 2012, the Trademark Examiner refused registration of the applied-
for Defendants trademark application based a likelihood of confusion with Plaintiffs mark
COWBOY LITTLE BARREL (U.S. Registration No. 2777811). The Examiner stated that
The term COWBOY is the dominant feature in both of the marks. The application is currently
suspended for US Serial No. 85544721.
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Upon information and belief, Defendants advertise, market, distribute, and/or
sell its products, namely whiskey, with the deceptively similar "COWBOY" and "COWBOY
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BOURBON" marks in interstate commerce in several states including California and on the
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internet among other locations, and specifically through the website www.garrisonbros.com.
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With respect to the State of California, Defendants have specifically targeted liquor stores, bars,
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restaurants, hotels and customers in California, including an advertisement on Defendants
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website, that states, We are happy to report that Garrison Brothers Texas Straight Bourbon
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Whiskey is available statewide in Texas. Due to its increasing popularity, well soon be
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distributing our bourbon in New York, Colorado, Arizona, Louisiana, California and Florida. If
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you own a liquor store, bar, restaurant or hotel in these states, we want to talk to you. Consistent
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with that advertisement, Defendants website also lists the State of California as Coming Soon
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with respect to Where to buy its products. (http://www.garrisonbros.com/where-to-buy, last
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visited July 11, 2014.)
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Upon information and belief, Defendants use the word "COWBOY" as
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shorthand for "COWBOY BOURBON," which is evidence that the word "COWBOY" is the
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dominant portion of Defendants mark "COWBOY BOURBON."
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Defendants website indicates that The Cowboy was first sold or distributed in
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April of 2013, and expected to retail at $159.99 to $169.99. (The Cowboy - April of 2013 was
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bittersweet in Hye, Texas. A distributors truck arrived and hauled off an amazing little bourbon.
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http://www.garrisonbros.com/cowboy last visited July 11, 2014).
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Upon information and belief, Defendants emphasize the "COWBOY" word and
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Defendants emphasize the word "COWBOY" in its branding, marketing, and
advertising and on the labels of Defendants whiskey products, displaying the word "COWBOY"
in all capital letters and in a large font.

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Defendants and Plaintiff are in the same industry, alcohol and specifically
distilled spirits, and sell the same products, specifically whiskey and bourbon whiskey to the
same target customers.
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Redwood City
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imagery on Defendants marketing, labels, and website materials.
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Defendants and Plaintiff advertise, distribute, and sell their alcohol-related
products in the same or similar trade channels, including at retail store locations specifically
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tailored to limited production, rare, hand crafted, craft, small batch, and/or little barrel distilled
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spirits, namely whiskey and bourbon.
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Defendants use of the COWBOY and "COWBOY BOURBON" marks and
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other imitations thereof are confusingly similar to Plaintiffs federally registered COWBOY
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LITTLE BARREL trademark for bourbon whiskey and Plaintiffs state and common law
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trademark and trade name rights.
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33.
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other variations is in direct competition with Plaintiff's COWBOY LITTLE BARREL and
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COWBOY marks and trade names.
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34.
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other variations thereof in the alcohol and distilled spirits industry and related industries has
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caused actual confusion and/or is likely to cause confusion as to source, sponsorship, and/or
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affiliation in relation to Plaintiff's COWBOY LITTLE BARREL and COWBOY marks and
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trade names.
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35.
Defendants use of the COWBOY and "COWBOY BOURBON" marks harms
Plaintiffs goodwill and dilutes Plaintiffs trademarks and trade names.

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Plaintiff is informed and believes, and thereon alleges, that Defendants will
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continue to use the COWBOY and "COWBOY BOURBON" marks unless enjoined from its
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use. Thus, Defendants use of the COWBOY and "COWBOY BOURBON" marks will
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continue to harm Plaintiffs goodwill and will continue to dilute Plaintiffs mark and trademark
rights unless enjoined.
Redwood City
37.
Upon information, Defendants use of the word COWBOY on its bourbon
whiskey product has caused and/or will cause Plaintiff immediate and irreparable harm. Upon
information and belief, the distilled beverage market is comprised of many small manufacturers
(Plaintiff and Defendants included), and a small number of large distributors. Upon information
and belief, large distributors are extremely hesitant and/or completely unwilling to adopt and
advertise a small brand if there is a potential of confusion over the brands name with similar
and/or competitive products. Upon information and belief, Plaintiff has been and will continue to
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be unable to be adopted and marketed by one of the large distributors because of Defendants
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confusingly similar use of the word COWBOY on distilled spirits.
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38.
Unless restrained and enjoined, Defendants will continue to engage in the acts
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complained of herein and expand its use of Plaintiff's marks and trade name, causing irreparable
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damage to Plaintiff. Plaintiff's remedy at law is not adequate to compensate Plaintiff' for all the
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injuries resulting from Defendants actions.
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Defendants are not affiliated with Plaintiff. Defendants use of the COWBOY
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and "COWBOY BOURBON" marks are not authorized by Plaintiff.
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FIRST CLAIM FOR RELIEF

(15 U.S.C. 1114 et. seq.)
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40.
Plaintiff realleges each and every allegation set forth in Paragraphs 1 through 39
inclusive, and incorporates them as though fully set forth herein.

41.
As set forth above, Plaintiff is the owner of the registered trademark for the
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Plaintiff word mark identified above. Plaintiff has used its marks continuously in commerce for
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each of its products, including those described above, and said marks identify the goods and
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services of Plaintiff, only, and distinguishes those products because of their long use by Plaintiff
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and its affiliation with the other partner companies that are authorized to advertise, distribute
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an/ord sell Plaintiff's products.
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42.
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Defendants activities constitute infringement of Plaintiff's trademarks in

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43.
Defendants wrongful conduct includes the advertising, distribution and/or sales
of each and every product sold under the COWBOY and "COWBOY BOURBON" marks that
are confusingly similar and almost identical to Plaintiff's "COWBOY LITTLE BARREL" marks.
Whether imitation, or confusingly similar and deceptive, the infringing products that Defendants
have and are continuing to create, use, offer, advertise, distribute and/or sell under the
COWBOY and "COWBOY BOURBON" marks are so similar to genuine products bearing
Plaintiff's "COWBOY LITTLE BARREL" marks that they cause actual confusion and/or are
likely to cause confusion and mistake as to the source of the product and/or ownership,
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Redwood City
violation of the Lanham Act, including, but not limited to, 15 U.S.C. 1114(a).
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sponsorship, or affiliation of Plaintiff's products.

44.
On information and belief, and thereon alleged, Defendants have developed,
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advertised, marketed and/or distributed its infringing products with the knowledge of Plaintiff 's
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registered trademark and trade name and with willful and calculated purposes of (a) misleading,
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deceiving or confusing customers and the public as to the origin of the infringing
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products/materials and (b) trading upon Plaintiff's business reputation and goodwill. At a
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minimum, Defendants acted with knowledge and reckless disregard of Plaintiff's registered and
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common law trademarks and trade name.
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45.
As a result of its wrongful conduct, Defendants are liable to Plaintiff for
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trademark infringement. Plaintiff has suffered, and will continue to suffer, losses, including, but
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not limited to, damage to its business reputation and goodwill. Plaintiff is entitled to recover
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damages, which include its losses and all profits Defendants have made as a result of its wrongful
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conduct, pursuant to 15 U.S.C. 1117(b).
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46.
Plaintiff is also entitled to injunctive relief pursuant to 15 U.S.C. 1116(a), as it
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has no adequate remedy at law as Defendants continue to develop, advertise and/or sell their
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products to the same or similar consumers as Plaintiff as well as through the same channels,
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including the Internet and distributors. On information and belief, Plaintiff cannot get into larger
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markets because of Defendants unauthorized use of confusingly similar marks. On information
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and belief and thereon alleged, Defendants may expand their COWBOY and "COWBOY
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BOURBON" product lines. Lastly, Plaintiff is entitled to injunctive relief as its business
reputation and goodwill will be irreparably harmed if Defendants wrongful activities continue
and consumers and/or potential consumers and the public are confused and/or are likely to
become further confused, mistaken or deceived as to the source, origin or authenticity of the
infringing materials.
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15 U.S.C. 1117.
WHEREFORE, Plaintiff prays for judgment, damages and injunctive relief against
Defendants as set forth below.
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Redwood City
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SECOND CLAIM FOR RELIEF

FALSE ADVERTISING AND FALSE DESIGNATION OF ORIGIN
AND FEDERAL UNFAIR COMPETITION
(15 U.S.C. 1125(a) et seq.)
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Plaintiff is also entitled to recover its attorneys fees and costs of suit pursuant to
48.
Plaintiff realleges each and every allegation set forth in Paragraphs 1 through
47 inclusive, and incorporates them as though fully set forth herein.

49.
Because Plaintiff advertises, markets, distributes, and sells its products under the
trademark described in this Complaint, this trademark is the means by which Plaintiff's products
and materials are distinguished from the products and materials of others in the same or related
fields.
50.
Due to Plaintiff's long, continuous, and exclusive use of the trademarks, the
COWBOY and "COWBOY LITTLE BARREL" marks have come to mean, and are understood
by customers and the public, to signify products and services and materials of Plaintiff,
particularly when used related to spirits, including whiskey and bourbon.
51.
Plaintiff has designed and used, and continues to use, its mark, distinctive logos
with the Plaintiff's name, displays, advertising, and packaging for its products and materials just
for this purpose.
52.
Defendants wrongful conduct includes the use, advertising, marketing,
distribution, and/or sale of products bearing Plaintiff's marks, as well as Plaintiff's name, and/or
imitations of said marks that are virtually indistinguishable from Plaintiff's mark, in connection
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with its products.
53.
engaged in such wrongful conduct with the willful purpose of misleading, deceiving, or confusing
customers and the public as to the origin and authenticity of the products offered, marketed,
distributed, and/or sold in connection with Plaintiff's marks, name, and imitation visual materials
and design and is and trading upon Plaintiff's business reputation and goodwill.
54.
Defendants conduct constitutes: (a) false designation of origin, (b) false or
misleading description, and (c) false or misleading representation that the imitation COWBOY
LITTLE BARREL" products, originate from or are authorized by Plaintiff, all in violation of
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Redwood City
Plaintiff is informed and believes, and upon that basis alleges, that Defendants
section 43(a) of the Lanham Act, set forth at 15 U.S.C. section 1125(a).
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Defendants wrongful conduct is likely to continue unless restrained and
56.
As a result of Defendants wrongful conduct, Plaintiff has suffered and will
enjoined.
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continue to suffer losses, including, but not limited to, sales revenues illegally and unfairly
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captured by Defendants, damage to its business reputation and good will.
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57.
Plaintiff is entitled to injunctive relief enjoining Defendants wrongful conduct
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pursuant to 15 U.S.C. Section 1125(a), and to an order impounding all products or materials
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bearing imitation marks being used, offered, advertised, distributed and/or sold by Defendants.
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58.
Plaintiff has no adequate remedy at law for Defendants wrongful conduct
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because, among other reasons: (a) Plaintiff's marks, names, and designs are unique and valuable
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property, which has no readily determinable market value; (b) Defendants advertising,
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marketing, distribution, and/or sales of imitated marks works a great harm to Plaintiff's business
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reputation and goodwill such that Plaintiff could not be made whole by any monetary award; and
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(c) Defendants wrongful conduct, and the resulting damage to Plaintiff, is continuing and likely
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expanding.
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59.
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to 15 U.S.C. Section 1117.
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Plaintiff is also entitled to recover its attorneys fees and costs of suit pursuant
WHEREFORE, Plaintiff prays for judgment, damages, restitution, seizure, an accounting,

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and injunctive relief against Defendants, and each of them, as set forth below.
THIRD CLAIM FOR RELIEF

UNFAIR COMPETITION
(California Business & Professions Code 17200 et seq.)
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Redwood City
60.
Plaintiff realleges each and every allegation set forth in Paragraphs 1 through 59,

61.
Defendants aforesaid conduct constitutes unfair, unlawful, and fraudulent
business practices in violation of California Business & Professions Code Sections 17200 et seq.,
in that Defendants use of confusingly similar marks and/or counterfeit marks to those of Plaintiff
in the exact same industry and same products constitutes unfair competition, as Plaintiff was the
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first to use its various marks in conjunction with its products and services in the in the distilled
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spirits industry, among others, and has obtained a registered trademark for said mark. Plaintiff
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has continuously used the COWBOY LITTLE BARREL and COWBOY marks as set forth
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above, and expanded the use of said mark. Plaintiff and Defendants are in direct competition as
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they sell the same products, to the same target customers, and operate in the same advertising
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space, including through distributors, retail store locations, and bars/restaurants.
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62.
As a direct and proximate result of the unfair and illegal conduct and
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representations to consumers and the public by Defendants, and each of them, as herein alleged,
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Plaintiff has been damaged in an amount not yet ascertained, and continues to be damaged.
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These wrongful acts have proximately caused and/or will continue to cause Plaintiff substantial
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injury, including confusion in the marketplace, wrongful association, dilution of its goodwill,
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confusion of government partners and potential customers, injury to its reputation, and diminution
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in value of its trademarks and trade name. These actions cause imminent irreparable harm and
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injury to Plaintiff.
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63.
As a result of Defendants wrongful conduct, Plaintiff is entitled to recover from
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Defendants the gains, profits, and advantages they have obtained as a result of its wrongful acts as
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hereinabove alleged and said amounts should be disgorged and restitution made to Plaintiff.
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WHEREFORE, Plaintiff prays for judgment and injunctive relief against Defendants, and
each of them, as set forth below.
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FOURTH CLAIM FOR RELIEF

DILUTION
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63, inclusive, and incorporates them as though fully set forth herein.
65.
Plaintiff has, since 1995, advertised, marketed, offered for sale, and sold
products using the marks COWBOY LITTLE BARREL and COWBOY, including in its
advertising, packaging, and logos for its bourbon whiskey products described above. Plaintiff has
built up valuable goodwill in the COWBOY LITTLE BARREL and COWBOY" names, and
the names have come to be associated exclusively with Plaintiff's company and are strong marks
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Redwood City
64.
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in the distilled spirits industry, particularly craft distilled spirits.

66.
Defendants have, in connection with the advertising, distribution and sale of its
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imitation products, used marks and labels that are confusingly similar or identical to Plaintiff's
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marks, and used the COWBOY and "COWBOY BOURBON" marks in a trademark sense to
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indicate source, thereby diluting the distinctive quality of Plaintiff's marks and the goodwill
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associated with such marks.
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67.
Defendants have acted with knowledge of the use of Plaintiff's mark and
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Plaintiff's application for the mark related to products sold by Plaintiff for the purpose of usurping
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the goodwill and reputation associated with Plaintiff and its products, as well as to willfully and
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intentionally confuse, mislead, and deceive members of the public by such use.
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68.
Defendants actions have, and continue to, dilute, blur and tarnish the strong and
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positive associations represented by Plaintiff's marks and lessen the capacity of Plaintiff's marks
22
to identify and distinguish Plaintiff and its products, including its COWBOY LITTLE
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BARREL and COWBOY" products and cause Plaintiff's marks to be associated with products
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that are not made, distributed, sponsored, endorsed or approved by Plaintiff.
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69.
Defendants use is not for comparative advertising. Defendants do not use the
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COWBOY and "COWBOY BOURBON" marks in advertising to compare the relative qualities
27
of the competitive goods.
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70.
RC1/7533355.1/RS
Defendants acts are willful and are in violation of California Business and
- 15 -

Professions Code Section 14330 et seq., and Plaintiff has been, and continues to be, damaged by
these acts.
3
4
WHEREFORE, Plaintiff prays for judgment and injunctive relief against Defendants, and
each of them, as set forth below.
FIFTH CLAIM FOR RELIEF

FALSE ADVERTISING
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70, inclusive, and incorporates them as though fully set forth herein.
Redwood City
71.
72.
Defendants were aware of Plaintiff's use of and rights in its marks and that the
10
advertising, promotion, distribution, and sale of its products would mislead and create a
11
likelihood of confusion to consumers, potential consumers, and the public. Upon information and
12
belief, Defendants were aware of or should have been aware of Plaintiffs registered trademark.
13
73.
Defendants use of their confusingly similar and/or identical marks to advertise
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and promote their products, and well as using such marks on their infringing products to indicate
15
that the COWBOY and "COWBOY BOURBON" mark is used in its trademark sense to
16
indicate source, affiliation, or sponsorship, has caused actual confusion and/or is likely to cause
17
confusion with respect to Plaintiff's COWBOY LITTLE BARREL and COWBOY" products
18
with Defendants products and falsely, misleadingly, and confusingly implies that Defendants
19
products are genuine Plaintiff products or are sponsored by, or affiliated with, or approved by
20
Plaintiff.
21
74.
Defendants actions are willful and constitute false advertising as it is likely to
22
deceive, confuse, and mislead consumers, potential consumers, and members of the public in
23
violation of California Business and Professions Code Section 17500 et seq. Plaintiff has been
24
and continues to be damaged and irreparably harmed by these acts.
25
75.
Pursuant to California Business and Professions Code Section 17535, Plaintiff is
26
entitled to injunctive relief, and to an order requiring Defendants to make restitution of all profits
27
that Defendants realized as a result of their false and misleading advertising.
28
WHEREFORE, Plaintiff prays for judgment, restitution, and an injunction against

RC1/7533355.1/RS
- 16 -

Defendants, and each of them, as set forth below.
SIXTH CLAIM FOR RELIEF

(Constructive Trust Upon Illegal Profits)
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6
7
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Redwood City
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76.

77.
Defendants acts and conduct constitute deceptive, fraudulent, and wrongful
conduct in the nature of passing off their infringing COWBOY and "COWBOY BOURBON"
products as those approved by, authorized by, affiliated with, or sponsored by Plaintiff.
78.
By virtue of Defendants wrongful acts and conduct, Defendants have illegally
received money and profits that rightfully belong to Plaintiff.

79.
Plaintiff is also entitled, pursuant to 15 U.S.C. Section 1117(a) and 17 U.S.C.
section 504(b), to recover all profits of Defendants that are attributable to their acts of
infringement of violations thereof.
80.
Defendants hold the illegally made profits in the form of money and property as
constructive trustees for the benefit of Plaintiff.

SEVENTH CLAIM FOR RELIEF
(Accounting)
16
17
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Plaintiff realleges each and every allegation in Paragraphs 1 through 75,
81.
Plaintiff realleges each and every allegation in Paragraphs 1 through 80,
19
82.
Plaintiff is entitled, pursuant to 15 U.S.C. Section 1117(a) and 17 U.S.C.
20
Section 504(b), to recover all profits of Defendants that are attributable to their acts of
21
infringement or violations thereof.
22
83.
The amount of money due from Defendants to Plaintiff is unknown to Plaintiff
23
and cannot be ascertained without a detailed accounting by Defendants of the precise number of
24
infringing materials advertised or offered for distribution and sold by Defendants.
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PRAYER FOR RELIEF
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WHEREFORE, PLAINTIFF respectfully requests judgment as follows:
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1.
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That the Court enter a judgment against Defendants, finding that Defendants
have:
RC1/7533355.1/RS
- 17 -

a.
Willfully infringed Plaintiff's rights in its federally registered trademark;
b.
Willfully infringed Plaintiff's rights in common law trademarks and trade
name;
c.
misleading description of fact, and false or misleading advertising against Plaintiff;
d.
deceptive advertising and false designations of origin; and
e.
Plaintiff and irreparably harmed Plaintiff by the acts and conduct set forth in this
10
Redwood City
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Committed and are committing acts of false designation of origin, false or
Committed and are committing unfair business competition by and through
Otherwise injured the business reputation, goodwill and business of
Complaint.
2.
That this Court issue temporary and permanent injunctive relief against
12
Defendants, and each of them, and that Defendants, their agents, representatives, servants,
13
employees, attorneys, successors and assigns and all other in active concert or participation with
14
Defendants, be enjoined and restrained from:
15
a.
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distribution of the products or materials protected by Plaintiff's trademarks;
17
b.
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selling, offering for sale, advertising, importing, promoting or displaying any
19
products, items or other things bearing any simulation, reproduction, copy or
20
colorable imitation of products, items or things protected by Plaintiff's trademarks;
21
c.
22
imitation of Plaintiff 's registered trademark or common law trademarks, in
23
connection with the manufacture, distilling, production, distribution, offering for
24
distribution, sale, offering for sale, import, advertising, promotion or display of
25
any product, item or thing, including alcohol and distilled spirits and related
26
materials not authorized by Plaintiff;
27
d.
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false or misleading representation or name, that can or is likely to lead the industry
RC1/7533355.1/RS
Imitating, copying, or making any other infringing use or infringing
Manufacturing, distilling, producing, distributing, offering for distribution,
Using any simulation, reproduction, counterfeit, copy or colorable
Using any false designation of origin or false or misleading description or
- 18 -

Redwood City
or public erroneously to believe that any product, item or thing has been
manufactured, distilled, produced, distributed, offered for distribution, sold,
offered for sale, imported, advertised, promoted, displayed, licensed, sponsored,
approved or authorized by or for Plaintiff, when such is not true in fact;
e.
trademark protected products and materials in any of the Defendants trade or
corporate names or products;
f.
Plaintiff 's trademarks, and/or trade name or of Plaintiff's rights in or right to use to
Using the names, logos, or other variations thereof, of any of Plaintiff 's
Engaging in any other activity constituting an infringement of any of
10
exploit, these trademarks and/or trade name; and
11
g.
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engaging in or performing any of the activities referred to in subparagraphs a
13
through f above.
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3.
Assisting, aiding or abetting any other person or business entity in
That the Court enter an order declaring that the Defendants hold in trust, as
15
constructive trustee for the benefit of Plaintiff, all profits received by Defendants from their
16
distribution or sale of counterfeit or imitation or infringing products and materials, and issue
17
temporary and permanent injunctive relief enjoining and restraining Defendants and their agents
18
from transferring, concealing or dissipating all profits and assets acquired in whole or in part with
19
those profits.
20
4.
That the Court enter an order requiring Defendants to provide Plaintiff a full and
21
complete accounting of all profits received by Defendants from their distribution or sale of
22
counterfeit, imitation and infringing products and/or materials, and of any other amounts due and
23
owing to Plaintiff as a result of Defendants illegal activities.
24
5.
That the Court order Defendants to pay Plaintiff's general, special, actual and
25
statutory damages, including Defendants profits, for Defendants willful infringement of
26
Plaintiff's trademarks.
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6.
That the Court order Defendants to pay Plaintiff the costs of this action and the
reasonable attorneys fees incurred by Plaintiff in prosecuting this action.

RC1/7533355.1/RS
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1
2
7.
That the Court grant to Plaintiff such other and additional relief as may be just
and proper in the premises.
3
4
DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure and the Seventh
Amendment to the Constitution of the United States, Plaintiff hereby demands a trial by jury of
all issues triable in the above action.
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Redwood City
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Dated: July 15, 2014
ROPERS, MAJESKI, KOHN & BENTLEY
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By: /s/ Robert P. Andris
ROBERT P. ANDRIS
MICHAEL D. KANACH
Attorneys for Plaintiff
ALLIED LOMAR, INC.
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RC1/7533355.1/RS
- 20 -

EXHIBIT A

Allied Lomar v. Lone Star Distillery - Cowboy Bourbon Trademark Complaint PDF

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Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 1 of 24

Ropers Majeski Kohn & Bentley

ROBERT P. ANDRIS (SBN 130290)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ALLIED LOMAR, INC.,

LONE STAR DISTILLERY, LLC DBA

COMPLAINT FOR FEDERAL

DEMAND FOR JURY TRIAL

This is an action to redress violations of the federal trademark and unfair

Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 2 of 24

infringement. In addition to damages and permanent injunctive relief, Plaintiff seeks an

Ropers Majeski Kohn & Bentley

Plaintiff Allied Lomar, Inc., is a California corporation organized and existing

5932, Austin, Texas 78763.

The true names and capacities, whether individual, corporate, associate or

Complaint when the names of said Defendants have been ascertained.

employees, servants, consultants, principals, employers or masters of each of their Co-Defendants

for acts and/or omissions herein alleged.

COMPLAINT FOR FEDERAL

Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 3 of 24

emphasis on the word COWBOY.

products, including COWBOY BOURBON in the state of California.

Upon information and belief, Defendants individually and collectively are

JURISDICTION AND VENUE

Venue is proper in this District pursuant to 28 U.S.C. 1400(a) in that

COMPLAINT FOR FEDERAL

Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 4 of 24

to personal jurisdiction at the time the action is commenced.

Plaintiffs Registered Trademark

Ropers Majeski Kohn & Bentley

Plaintiffs registration for the mark COWBOY LITTLE BARREL is valid,

or in connection with the goods and services specified therein.

Plaintiff uses the mark "COWBOY LITTLE BARREL" in commerce as a word

commerce since at least as early as 1995.

Plaintiffs labels for "COWBOY LITTLE BARREL" bourbon whiskey

larger sized font above the words LITTLE BARREL:

COMPLAINT FOR FEDERAL

Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 5 of 24

Ropers Majeski Kohn & Bentley

Whiskey is defined in the Standards of Identity for Distilled Spirits in the

Plaintiff's State Law and Common Law Rights:

LITTLE BARREL as an indication of source in marketing and sales of bourbon whiskey. As a

related to distilled spirits, whiskey, and/or bourbon, with Plaintiff.

distilled spirits domestically and internationally for years.

COMPLAINT FOR FEDERAL

Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 6 of 24

Defendants Infringing Acts

Upon information and belief, Defendants individually and collectively are

sold using the unregistered name COWBOY BOURBON.

Ropers Majeski Kohn & Bentley

COWBOY BOURBON mark in use on bottles of bourbon whiskey.

COMPLAINT FOR FEDERAL

Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 7 of 24

Below is a screenshot of Defendants website www.garrisonbros.com as of June 25, 2014, which

prominently features advertisements for COWBOY BOURBON whiskey on the homepage:

Ropers Majeski Kohn & Bentley

Defendants use of the COWBOY BOURBON mark began at an unknown

COMPLAINT FOR FEDERAL

Case 1:14-cv-01078 Document 1 Filed 07/15/14 Page 8 of 24

BOURBON, which is descriptive of the bourbon whiskey product Defendants sell.