UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION
______________________________________________________________________________
KLEMENT SAUSAGE COMPANY, INC., a
Wisconsin Corporation,

Case No.: _______________

Plaintiff,
v.
JOHNSONVILLE SAUSAGE, LLC, a Limited
Liability Company,
Defendants.

COMPLAINT
Plaintiff Klement Sausage Company, Inc., a Wisconsin Corporation (Klement), by its
attorneys, as and for its Complaint against Defendant Johnsonville Sausage, LLC, a Limited
Liability Company (Johnsonville) alleges as follows:
NATURE OF THE CASE
1.

Klement and Johnsonville are in the sausage business. Klement first used the

trademark BACKYARD BRATWURST in its sale of bratwurst sausages as early as January

2008.
2.

The United States Patent and Trademark Office (USPTO) granted Klement a

registration for that trademark on September 22, 2009.

3.

Seven years after Klement first used its trademark, Johnsonville applied to

register the trademark BACKYARD GRILLED BRAT, also for the sale of bratwurst sausages.
The USPTO refused Johnsonvilles trademark registration as being confusingly similar to
Klements federally-registered trademark.

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4.

Despite this independent government assessment and despite Klements demand

to stop its infringing conduct, Johnsonville refuses to remove its confusingly similar trademark
from the market, which it is using to sell identical goods: bratwurst sausages. Johnsonvilles
actions are in direct violation of federal and state law. Therefore, Klement seeks to obtain
injunctive relief against Johnsonville to cease its illegal activities, and to recover damages caused
by Johnsonvilles trademark violations.
PARTIES
5.

Klement is a Wisconsin Corporation with its headquarters located at 207 East

Lincoln Avenue, Milwaukee, Wisconsin. Klement produces butcher-block quality meats and
sausages and is doing business in the State of Wisconsin.
6.

Johnsonville is a Delaware limited liability company with its headquarters located

at N6928 Johnsonville Way, Sheboygan Falls, Wisconsin.

Johnsonville is also a sausage

company doing business in the State of Wisconsin.

JURISDICTION AND VENUE
7.

This action arises under the Lanham Act 15 U.S.C. 1058 et seq. In addition,

Klement seeks relief under common law and Wisconsin state law. This Court has jurisdiction
over the Lanham Act violations pursuant to 28 U.S.C. 1331 (federal question). This court has
supplemental jurisdiction over the state and non-federal common law claims pursuant to 28
U.S.C. 1367(a) because these claims are so closely related that they form part of the same case
or controversy.
8.

Venue is proper in this district pursuant to 28 U.S.C. 1400(a) and/or 28 U.S.C.

1391(b) because a substantial part of the events giving rise to Klements claim occurred in this

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judicial district and Johnsonville engaged in activities infringing Klements trademark and
caused injury to Klement in this judicial district.
BACKGROUND
9.

Klement owns the federally registered trademark BACKYARD BRATWURST

(the BACKYARD BRATWURST Trademark), U.S. Registration No. 3684763, for Bratwurst
Sausages.

A copy of the Registration Certificate for the BACKYARD BRATWURST

Trademark retrieved from the USPTOs website is attached as Exhibit A.

10.

Since January 2008, Klement has used the BACKYARD BRATWURST

Trademark in connection with its sale of bratwurst sausages in interstate commerce. Through
extensive advertising, promotion, and sales over that period of time, Klements BACKYARD
BRATWURST Trademark has acquired secondary meaning in the relevant market and has
become an indicia of source as to Klement for its quality of bratwurst sausages.
11.

Klement has spent and continues to spend substantial financial resources

advertising and promoting its BACKYARD BRATWURST Trademark. As a result, the mark
has become distinctive in the minds of Klements customers and strongly associated with the
Klement name and Klements products.
12.

In May 2015, Klement became aware that Johnsonville had adopted and was

using the trade name and mark BACKYARD GRILLED BRAT in both word and logo form,
(collectively the Infringing Mark) relative to the sale of bratwurst sausage, without Klements
authority or permission and in reckless disregard of Klements federal trademark registration. An
example of Johnsonvilles use of the Infringing Mark is attached as Exhibit B.
13.

Despite Klements demand, as further set forth below, Johnsonville continues to

use the Infringing Mark on its bratwurst sausages.

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14.

Johnsonville has applied to register the trademark of BACKYARD GRILLED

BRAT, but the USPTO refused Johnsonvilles trademark registration as being confusingly
similar to Klements registered trademark. A copy of the Office Action issued by the USPTO
refusing registration of this mark is attached as Exhibit C.
15.

On May 18, 2015, counsel for Klement sent a letter to Johnsonville (the May 18

Letter) advising it that Klement is the owner of the foregoing federal trademark Registrations
for the BACKYARD BRATWURST Trademark and that Klement had common law rights
arising from Klements use of the BACKYARD BRATWURST Trademark since 2008.
16.

In the May 18 Letter, Klement put Johnsonville on notice that its use of the

BACKYARD BRATWURST Trademark constituted trademark infringement under Section

32(1) of the Lanham Act, 15. U.S.C. 1114(1), false designation of origin and false description
under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a) and violated the state statutes and
common law principles governing trademarks, unfair competition and deceptive trade practices.
17.

The May 18 Letter further demanded that Johnsonville cease any use or planned

use of the Infringing Mark in connection with the sale of bratwurst sausage and asserted that
Klement would vigorously enforce its right to the exclusive use of the BACKYARD
BRATWURST Trademark.
18.

The May 18 Letter warned Johnsonville that Klement would take all legal

recourse available to protect the goodwill, value, and reputation associated with the
BACKYARD BRATWURST Trademark.
19.

Despite Klements efforts to resolve its claims Johnsonville refuses to cease

infringing on Klements BACKYARD BRATWURST Trademark.

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20.

Upon information and belief, Johnsonville has been selling bratwurst sausages

under the Infringing Mark since as early as February 2015.

21.

Johnsonvilles actions, particularly after the May 18 Letter, have been undertaken

willfully and with the intent and knowledge that such actions would cause confusion, mistake, or
deception among the public.
22.

Johnsonvilles improper use of Klements BACKYARD BRATWURST

Trademark has caused and will continue to cause confusion, mistake, or deception among the
public and among purchasers and potential purchasers of Klements products bearing the
BACKYARD BRATWURST Trademark as to the source of origin of the bratwurst sausages
sold by Klement. As a result, purchasers are likely to believe that Johnsonvilles products
originate from, are in some way connected with, approved by, sponsored by, affiliated with, or
endorsed by Klement.
23.

As a result of the likelihood of confusion generated by Johnsonvilles

unauthorized use of Klements BACKYARD BRATWURST Trademark, Johnsonville is

wrongfully benefiting from Klements label and hard-earned goodwill and Johnsonville is
jeopardizing Klements reputation if Johnsonville sausage making standards are not as rigorous
as Klements.
24.

Klement is entitled to protect the goodwill and reputation inherent in its federally-

registered BACKYARD BRATWURST Trademark. Klement is likewise entitled to exclusive

enjoyment of the BACKYARD BRATWURST Trademark.
25.

As a direct and proximate result of Johnsonvilles foregoing actions, Klement has

suffered and will continue to suffer irreparable injury and substantial damages, which will
continue unless Johnsonville is restrained from continuing its wrongful conduct.

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FIRST CLAIM FOR RELIEF

AND SUPPORTING FACTUAL ALLEGATIONS
Section 32 of the Lanham Act
Registered Trademark Infringement
26.

Klement repeats its allegations set forth in paragraphs 1-25 above with the same

force and effect as if set forth herein in their entirety.

27.

Johnsonvilles actions, as described above, have been undertaken willfully and

with the intent and knowledge that such actions would cause confusion, mistake, or deception
among the public, where Klement currently sells bratwurst sausages under its BACKYARD
BRATWURST Trademark.
28.

Johnsonvilles use of the BACKYARD BRATWURST Trademark is likely to

cause confusion as to the source of origin of the bratwurst sausages offered and sold by Klement
under its BACKYARD BRATWURST Trademark. As a result, purchasers are likely to believe
that Johnsonvilles bratwurst sausages sold under the Infringing Mark originate from, are in
some way connected with, approved by, sponsored by, affiliated with or endorsed by Klement.
29.

Johnsonville, by the acts complained of herein, has competed unfairly with

Klement and has otherwise used the valuable reputation and goodwill of Klement and Klements
BACKYARD BRATWURST Trademark in order to promote, and unfairly benefit from, the sale
of its bratwurst sausage. Johnsonville is unfairly benefiting from the goodwill in Klements
BACKYARD BRATWURST Trademark and reaping benefits from the fruits of Klements
efforts and considerable investments.
30.

Such actions by Johnsonville constitute infringement of Klements BACKYARD

BRATWURST Trademark in violation of Section 32(1) of the Lanham Act, 15 U.S.C. 1114(1).

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31.

As a direct and proximate result of Johnsonvilles actions, Klement has suffered

and will continue to suffer irreparable injury and substantial damages, which will continue unless
Johnsonville is restrained from continuing its wrongful conduct.
SECOND CLAIM FOR RELIEF
AND SUPPORTING FACTUAL ALLEGATIONS
Section 43(a) of the Lanham Act
32.

Klement repeats its allegations set forth in paragraphs 1-31 above with the same

force and effect as if set forth herein in their entirety.

33.

Johnsonvilles improper use of Klements BACKYARD BRATWURST

Tradmark falsely designates the origin of Johnsonvilles bratwurst sausages and tends falsely to
represent Johnsonville as being legitimately connected with, approved by, sponsored by,
affiliated with, or endorsed by Klement. As a result, the public and purchasers are likely to
believe that Johnsonvilles bratwurst sausages originate from, are in some way connected with,
approved by, sponsored by, affiliated with, or endorsed by Klement.
34.

Johnsonvilles wrongful conduct constitutes the unauthorized use in commerce of

a symbol, devise or combination thereof, and a false designation of origin, which is likely to
cause consumer confusion, or to cause mistake, or to deceive as to the origin, sponsorship, or
approval in violation of Section 43 (a) of the Lanham Act, 15 U.S.C. 1125 (a).
35.

As a direct and proximate result of Johnsonvilles actions, Klement has suffered

and will continue to suffer irreparable injury and substantial damages, which will continue unless
Johnsonville is restrained from continuing it wrongful conduct.
THIRD CLAIM FOR RELIEF
AND SUPPORTING FACTUAL ALLEGATIONS
Wis. Stat. 100.20
36.

Klement repeats its allegations set forth in paragraphs 1-35 above with the

same force and effect as if set forth herein in their entirety.

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37.

Johnsonville's improper use of its Infringing Mark in connection with the sale

of bratwurst sausages is likely to cause confusion, mistake, misunderstanding, or deception

among consumers as to the source of Johnsonville's products, or an as to any affiliation,
sponsorship, license, endorsement, approval, or connection between Johnsonville and Klement.
38.

Johnsonville's use of its Infringing Mark is an unfair imitation of Klement's

trademark "BACKYARD BRATWURST."

39.

Johnsonville's use of its Infringing Mark constitutes acts of unfair methods of

competition and trade practices in violation of Wisconsin Statutes section 100.20.

40.

As a result of Johnsonville violating section 100.20, Klement has suffered

irreparable harm and will continue to suffer irreparable harm until Johnsonville is enjoined from
using its Infringing Mark.
41.

As a result of Johnsonville violating section 100.20, Klement has suffered

irreparable harm and will continue to suffer irreparable harm until Johnsonville is enjoined from
using its Infringing Mark.
FOURTH CLAIM FOR RELIEF
AND SUPPORTING FACTUAL ALLEGATIONS
Common Law Unfair Competition
42.

Klement repeats its allegations set forth in paragraphs 1-41 above with the

same force and effect as if set forth herein in their entirety.

43.

Taken as a whole, Johnsonvilles actions in the improper use of Klements

BACKYARD BRATWURST Trademark are an attempt to infringe on Klements common law

trademarks, ride on the coattails of the goodwill associated with Klements marks and cause
confusion in the marketplace with the intent to make Customers falsely believe that Johnsonville
and the Infringing Marks are sponsored by, related to, or associated with Klement.

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44.

Johnsonvilles wrongful conduct constitutes unfair methods of competition

and unfair and deceptive acts or practices in trade or commerce and creates a likelihood of
confusion, misunderstanding, or deception in the publics minds as to the origin of the parties
services and goods.
45.

Johnsonvilles unlawful actions have resulted in its unjust enrichment and

have caused Klement to suffer substantial damage

46.

The confusion, mistake, or deception constitutes common law unfair

competition.
JURY DEMAND
Klement demands a trial by jury on all issues triable by a jury.
REQUEST FOR RELIEF
WHEREFORE Klement prays that this Court enter judgment in their favor against
Johnsonville:
A.

Permanently enjoining Johnsonville, its officers, agents, servants, employees,

attorneys, parents, subsidiaries, and related companies from:
1.

using the BACKYARD BRATWURST Trademark or any marks

confusingly similar to it, in connection with the advertising, promotion,
offering for sale or sale of bratwurst sausages;

2.

performing any acts or making any representations that are likely to cause
mistake, confusion, or deception on the part of the public into believing
that Johnsonvilles bratwurst sausages are in some way connected with,
sponsored by, endorsed by, approved by, affiliated with or associated with
Klement;

3.

otherwise competing unfairly with Klement;

4.

displaying, offering, selling, or otherwise dealing in services or goods

infringing the BACKYARD BRATWURST Trademark; and

5.

diluting the distinctive quality of Klements BACKYARD BRATWURST

Trademark.

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B.

Finding that Johnsonville has infringed Klements BACKYARD BRATWURST

Trademark by the acts complained of herein and that such acts will damage and
have damaged the distinctiveness of Klements BACKYARD BRATWURST
Trademark and will continue to do so unless enjoined by this Court.

C.

Finding that Johnsonville has unfairly competed with Klement by the acts
complained of herein.

D.

Cancelling any and all applications by Johnsonville to register the Infringing

Mark with the USPTO.

E.

Requiring Johnsonville to account for and pay over to Klement all profits realized
by it by reason of its unlawful acts in violation of the Lanham Act, such amounts
be trebled, as provided by law.

F.

Entering judgment against Johnsonville in the amount of Klements actual

damages, including lost profits, resulting from their wrongful conduct, plus prejudgment interest.

G.

Awarding Klement its costs and attorneys fees and such other relief as just.

Dated this 17th day of July, 2015.

/s/ Russell A. Klingaman
Russell A. Klingaman
State Bar No. 1000676
Attorneys for Plaintiff KLEMENT SAUSAGE
COMPANY, INC., a Wisconsin Corporation
HINSHAW & CULBERTSON LLP
100 E. Wisconsin Avenue
Suite 2600
Milwaukee, WI 53202
Phone No. 414-276-6464
Fax No. 414-276-9220
E-mail Address(es):
rklingaman@hinshawlaw.com
AND
Edward D. Shapiro (Atty. No. 6226069)
Shawn M. Staples (Atty. No. 6293863)
Much Shelist, PC
191 North Wacker Drive, Suite 1800
Chicago, IL 60601
Phone No. 312-521-2000

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