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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Defendant.
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2 4. Through this Complaint, Plaintiff asserts claims against Defendant that arise under
4 5. The Court has original subject matter jurisdiction over Plaintiff’s federal claims
5 pursuant to 28 U.S.C. §§ 1331 and 1338(a) and 15 U.S.C. § 1121(a) because Plaintiff’s claims
7 6. Jurisdiction over the common law claim is also appropriate under 28 U.S.C. §
9 7. This Court also has jurisdiction over this case under 28 U.S.C. § 1332(a)(1)
10 because it is between citizens of different states and the amount in controversy exceeds seventy-
12 8. The Court has personal jurisdiction over Defendant in that Defendant resides in
13 this State; transacts business in this State; has its principal place of business in this State; and upon
14 information and belief, has sold, and is selling, its products to customers in this State; and
16 9. Venue is proper in the United States District Court for the District of Nevada, Las
18 business in this judicial district. Additionally, venue is proper in this judicial district under 28
19 U.S.C. §§ 1391(b)(2)-(3) because a substantial part of the events giving rise to the claims herein
20 occurred in this judicial district and because Defendant is subject to the Court’s personal
22 BACKGROUND FACTS
23 10. Plaintiff franchises retail bakery stores featuring a variety of food and beverage
25 11. Since at least as early as 1985, Plaintiff, together with its licensees and franchisees,
26 has used the trademark CINNABON, and variations thereof, in connection with its various goods
27 and services.
28 12. Plaintiff owns the following U.S. trademark registrations which incorporate the
W EIDE & MILLER, LTD.
10655 PARK RUN DRIVE
SUITE 100 FCA-w-0982 2
LAS VEGAS,
NEVADA 89144
(702) 382-4804
Case 2:19-cv-01855 Document 1 Filed 10/21/19 Page 3 of 11
1 CINNABON mark:
18 13. The word mark CINNABON as shown in U.S. Registration No. 1,424,169 is
19 hereinafter referred to as the “CINNABON Mark,” and the marks shown in the table above are
20 hereinafter collectively referred to as the “CINNABON Marks.” Attached as Exhibit A are true
22 14. All of the foregoing registrations for the CINNABON Marks are in full force and
23 effect, and Registration Nos. 1,424,169; 2,137,495; 2,304,346; 3,061,125; 3,074,505; 3,197,342;
25 15. Cinnabon also owns common law rights in the CINNABON Marks arising from
26 its use of this mark in connection with retail bakery services and baked goods, such as cinnamon
1 17. Plaintiff, through its licensees and franchisees, uses the CINNABON Marks in
3 18. Plaintiff also licenses or has licensed the use of its mark on various goods which
4 are offered to sale throughout the United States, including, without limitation, pre-packaged
5 bakery goods, frozen baked goods, dry mixes for bakery goods, popped popcorn, alcohol, air
6 fresheners, breakfast cereals and microwavable baked goods, among other goods.
8 widespread use of said mark, and it became famous before Defendant initiate the unlawful
11 20. Upon information and belief, Defendant is sells e-liquids under various names and
13 21. Upon information and belief, Defendant uses the CINNABON mark in commerce
14 on two e-liquid products which are branded under the name CINNABON, one of which
15 purportedly incorporates cannabidiol (“CBD”) and one of which purportedly does not.
16 22. Defendant advertises and offers for sale at least six different products which are
18 a. 15 ml CINNABON-branded e-liquid;
19 b. 30 ml CINNABON-branded e-liquid;
24 23. The products identified in paragraph 22 above are hereinafter referred to as the
25 “Infringing Products.”
26 24. Defendant advertises the Infringing Products for sale on its website at
27 www.liquidchroniceliquid.com.
28 25. Defendant also uses the CINNABON mark on its website which is used to
W EIDE & MILLER, LTD.
10655 PARK RUN DRIVE
SUITE 100 FCA-w-0982 4
LAS VEGAS,
NEVADA 89144
(702) 382-4804
Case 2:19-cv-01855 Document 1 Filed 10/21/19 Page 5 of 11
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21 27. Upon information and belief, Defendant is targeting consumers which are familiar
22 with Plaintiff and the CINNABON Marks by referencing the CINNABON name and brand in its
23 advertisements.
24 28. Defendant’s use of the CINNABON mark and name is visually, phonetically and
25 connotatively identical and confusingly similar to Plaintiff’s CINNABON mark and the
27 29. Defendant’s use of the CINNABON mark is likely to cause confusion as to the
1 infringing Cinnabon’s rights in its CINNABON Marks, thereby damaging Cinnabon’s reputation
2 and goodwill.
3 30. Plaintiff, through its counsel, sent a letter to Defendant on February 20, 2019,
4 requesting that Defendant cease any and all use of the CINNABON Marks.
5 31. When Defendant failed to respond to Plaintiff’s February 20, 2019 letter,
7 32. When Defendant failed to respond to either of Plaintiff’s letters, Plaintiff’s counsel
8 contacted Defendant by phone on April 30, 2019, in which call Defendant agreed to provide a
11 34. Plaintiff sent a third letter to Defendant on June 5, 2019, but yet again, Defendant
13 35. In and around May 2019 and June 2019, Plaintiff’s counsel attempted to contact
15 36. To date, Defendant has not provided a substantive response to any of Plaintiff’s
16 letters and requests for Defendant to cease using the CINNABON Mark, and Defendant continues
18 37. Upon information and belief, Defendant’s willfully and knowingly adopted, used
19 and continues to use the CINNABON mark with knowledge of Plaintiff’s rights in the
20 CINNABON Marks.
21 38. Upon information and belief, Defendant uses, intends to use, and continues to use
22 the CINNABON mark without Plaintiff’s authorization, thereby confusing consumers as to the
23 source of Defendant’s goods and services and resulting in damage and detriment to Plaintiff and
2 40. Defendant’s actions described above and specifically, without limitation, its
3 unauthorized use of a mark which is identical and/or confusingly similar to the CINNABON
4 Marks in commerce to advertise, promote, market and sell Defendant’s goods throughout the
7 41. Defendant’s actions, if not enjoined, will continue. Plaintiff has suffered and
8 continues to suffer damages in an amount to be proven at trial consisting of, among other things,
9 diminution in the value of and goodwill associated with the CINNABON Marks, and injury to
10 Plaintiff’s business. Plaintiff is therefore entitled to injunctive relief pursuant to 15 U.S.C. § 1116.
12 to be determined at trial, profits made by Defendant in connection with its unauthorized use of
14 43. Upon information and belief, Defendant’s actions are willful, and Defendant
15 intentionally caused and continues to cause confusion, mistake, or deception, making this an
16 exceptional case entitling Plaintiff to recover additional treble damages and reasonable attorneys’
1 continues to suffer damages in an amount to be proven at trial consisting of, among other things,
2 diminution in the value of and goodwill associated with CINNABON Marks, and injury to
3 Plaintiff’s business. Plaintiff is therefore entitled to injunctive relief pursuant to 15 U.S.C. § 1116.
5 to be determined at trial, profits made by Defendant in connection with its unauthorized use of
7 48. Upon information and belief, Defendant’s actions are willful, and Defendant
8 intentionally caused and continues to cause confusion, mistake, or deception, making this an
9 exceptional case entitling Plaintiff to recover additional treble damages and reasonable attorneys’
10 fees pursuant to 15 U.S.C. § 1117.
1 56. The CINNABON Mark was famous before Defendant began advertising or selling
3 57. Defendant used in commerce and continues to use in commerce the CINNABON
5 58. Defendant’s unauthorized use of the CINNABON Mark dilutes or is likely to dilute
6 the distinctive quality of said mark and is likely lessen the capacity of such mark to identify and
8 59. Defendant’s unauthorized use of the CINNABON Mark in connection with the
9 Infringing Products is likely to tarnish the CINNABON Mark and cause blurring in the minds of
10 consumers between Plaintiff and Defendant, resulting in a diminution of the value of the
12 60. Defendant’s acts of dilution have caused and will continue to cause damage to
13 Plaintiff, including irreparable harm for which there is no adequate remedy at law.
23 2. That Plaintiff be granted injunctive relief under 15 U.S.C. § 1051 et seq. restraining
24 and enjoining Defendant and its agents, partners, servants, employees, officers, attorneys,
25 managers, successors and assigns, and all persons acting in concert with or on behalf of Defendant
26 from:
28 CINNABON Marks and any other mark now or hereafter confusingly similar or
W EIDE & MILLER, LTD.
10655 PARK RUN DRIVE
SUITE 100 FCA-w-0982 9
LAS VEGAS,
NEVADA 89144
(702) 382-4804
Case 2:19-cv-01855 Document 1 Filed 10/21/19 Page 10 of 11
1 identical to the CINNABON Marks including, but not limited to, CINNABON;
9 that any good or service has been provided, produced, distributed, offered for
10 distribution, circulation, sold, offered for sale, imported, advertised, promoted,
20 3. Order Defendant to pay the costs of any corrective advertising required by Plaintiff
22 4. Order Defendant to hold in trust, as constructive trustees for the benefit of Plaintiff,
23 its profits obtained from its provision of Defendant’s goods and services under the CINNABON
24 Marks;
25 5. Order Defendant to provide Plaintiff a full and complete accounting of all amounts
1 7. Order Defendant to pay trebled damages for the damages sustained by Plaintiff
2 that are attributable to Defendant’s willful and knowing infringement of Plaintiff’s federally
3 registered trademarks;
4 8. Order Defendant to pay to Plaintiff both the costs of this action and the reasonable
6 9. Grant Plaintiff such other and additional relief as is just and proper.
7 JURY DEMAND
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W EIDE & MILLER, LTD.
10655 PARK RUN DRIVE
SUITE 100 FCA-w-0982 11
LAS VEGAS,
NEVADA 89144
(702) 382-4804
Case 2:19-cv-01855 Document 1-1 Filed 10/21/19 Page 1 of 2
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
F. Christopher Austin, Weide & Miller, Ltd., 10655 Park Run Drive, Suite
100, Las Vegas, NV 89144, (702) 382-4804
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State
’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.
VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 2:19-cv-01855 Document 1-2 Filed 10/21/19 Page 1 of 2
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you
are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.
P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of
the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,
whose name and address are: F. Christopher Austin
Weide & Miller, Ltd.
10655 Park Run Drive, Suite 100
Las Vegas, NV 89144
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.
You also must file your answer or motion with the court.
CLERK OF COURT
Date:
Signature of Clerk or Deputy Clerk
Case 2:19-cv-01855 Document 1-2 Filed 10/21/19 Page 2 of 2
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
’ I left the summons at the individual’s residence or usual place of abode with (name)
, a person of suitable age and discretion who resides there,
on (date) , and mailed a copy to the individual’s last known address; or
’ Other (specify):
.
My fees are $ for travel and $ for services, for a total of $ 0.00 .
Date:
Server’s signature
Server’s address
EXHIBIT A
EXHIBIT A
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CLASS 43: Restaurant services; take-out restaurant services; services for providing food and
Int. Cl.: 43 drink
Principal Register The color(s) blue, white and light blue is/are claimed as a feature of the mark.
The mark consists of the stylized word "CINNABON" in white within a stylized blue oblong
with a thin light blue line tracing within the oblong.
Reg. No. 5,433,550 Cinnabon Franchisor SPV LLC (DELAWARE LIMITED LIABILITY COMPANY)
5620 Glenridge Drive Ne
Registered Mar. 27, 2018 Atlanta, GEORGIA 30342