Gummy Bear International v. Kocakus and Rudy's Family.pdf

8/19/2019 Gummy Bear International v. Kocakus and Rudy's Family.pdf

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

COMPLAINT

Plaintiff Gummy Bear International, Inc. (hereinafter “GBI” or Plaintiff), by its

undersigned counsel, for its complaint against Rusan Kocakus (“Kocakus”) and Rudy’s Family

Restaurant Diner Inc. (“RFRD,” collectively with Kocakus, “the Defendants”), alleges as

follows:

NATURE OF THE ACTION

1. This lawsuit arises out of the Defendants’ infringement and misappropriation of

GBI’s intellectual property, specifically, its copyrighted, trademarked and highly popular

Gummibär character. The Defendants have blatantly and willfully infringed GBI’s trademark

and copyrights through the creation and operation of a Gummibär-themed yogurt shop called

“Rudy’s Gummy Berry Frozen Yogurt Shop” (“Yogurt Shop”). The Defendants extensively

displayed actual images of the Gummibär character and artwork throughout the Yogurt Shop

without GBI’s authorization as part of the Defendants’ flagrant effort to pass off the Yogurt Shop

GUMMY BEAR INTERNATIONAL, INC.,

Plaintiff, CIVIL ACTION NO.

v.

RUSAN KOCAKUS, JURY TRIAL DEMANDED

and

RUDY’S FAMILY

RESTAURANT DINER INC.,

Defendants.

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 1 of 21 PageID #: 1


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as an authorized Gummibär franchise. Accordingly, GBI brings this civil action for copyright

infringement under the Copyright Act, 17 U.S.C. §101 et seq.; trademark counterfeiting,

trademark infringement, trademark dilution, unfair competition, false advertising and false

designation of origin under the Lanham Act, 15 U.S.C. §101 et seq.; and for violations of the

Deceptive Trade Practices Act and Unfair Competition under Delaware state law. Plaintiff seeks

actual and statutory damages, attorneys’ fees, punitive damages, and injunctive relief.

PARTIES

2. Plaintiff GBI is a corporation duly organized and existing under the laws of the

State of New Jersey, with its principal place of business located in New Jersey.

3. Upon information and belief, RFRD is a corporation organized under the laws of

the State of Delaware, with its principal place of business located at 17064 South Dupont

Highway, Harrington, Delaware.

4. Upon information and belief, Kocakus is an individual, who resides in Delaware.

Kocakus, upon information and belief, is the principal owner, officer, director and/or shareholder

of RFRD, and regularly conducts business in Delaware through the operation of multiple

restaurants. Upon information and belief, Kocakus had full knowledge and control over the

infringing activities of RFRD, including those specifically occurring within this judicial district.

JURISDICTION AND VENUE

5. This Court has jurisdiction over the subject matter of this action pursuant to the

Copyright Act, 17 U.S.C. § 101, et seq. and the Trademark Act of 1946, 15 U.S.C. §§ 1051, et

seq. (the “Lanham Act”). This Court has original jurisdiction over this action under 28 U.S.C.

§§ 1331, 1332 and 1338 (a) and (b), 17 U.S.C. § 501 and 15 U.S.C. §§ 1116 and 1121, and

supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a).



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6. This Court has personal jurisdiction over the Defendants as the Defendants reside

in this district, transact business in this district, and have sold or distributed infringing

merchandise within this district. Hence, a substantial part of the events giving rise to the claims

alleged herein occurred in and continue to occur in this district.

7. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) and (c).

FACTS

GBI’S GUMMIBÄR

8. Gummibär, a singing and dancing animated gummy bear, is the most watched

animated character on YouTube, with more than three million video views each day and over

five billion total views.

9.

In 2005, Christian Schneider began developing the concept for the Gummibär

character, along with the lyrics and sound recordings for Gummibär songs.

10. In 2006, the song “I am a Gummy Bear” and then a music video of the same

name, became viral internet sensations first in Europe and then throughout the United States and

the world. Schneider then authored a number of other songs to be sung by Gummibär which also

became immensely popular.

11. Christian Schneider and his son of the same name (collectively referred to as “the

Schneiders”) conducted business in Europe under the name of Yazoo Music (GBR) (“Yazoo”).

12. In 2007, the Schneiders and Jurgen Korduletsch formed GBI for the purpose of

exploiting the copyright and trademark rights to the animated Gummibär character in the United

States and in other territories. The Schneiders and Korduletsch are the owners of GBI and

Korduletsch serves as the President of GBI.



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13. GBI devoted a considerable amount of time, money and effort in developing an

original, animated Gummibär character to be featured in music videos and other media. GBI

also extensively promoted and marketed its original Gummibär character.

14. GBI has produced a series of immensely popular Gummibär music videos.

Gummibär’s upbeat music and humorous videos have been released in more than forty countries

and in over twenty-seven languages.

15. In 2012, GBI released a Gummibär Christmas long-form video.

16. In February 2014, John Travolta agreed to provide the voice for the Gummibär

character for a $30 million budgeted theatrical movie titled “Gummy Bear the Movie.” A

Gummibär television series, to be broadcast worldwide, is currently in production as well.

17.

GBI has obtained the following copyrights in the United States pertaining to

Gummibär:

a. In 2006, the sound recording and music rights for “Gummibär – Ich Bin Dein

Gummibär ”;

b.

In 2007, the sound and recording music rights for “Gummibär – I Am Your

Gummy Bear”; and

c. In 2012, the motion picture r ights for “The Yummy Gummy Search for

Christmas.”

18. Copies of the relevant Certificates of Copyright Registration obtained by GBI are

attached hereto as Exhibit 1.

19. Copies of images of Gummibär from the “The Yummy Gummy Search for

Christmas” are attached hereto as Exhibit 2.



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20. GBI also owns the United States Registration for the Gummibär Mark

(Trademark Registration Number 4335076), a copy of which is attached hereto as Exhibit 3. The

GBI Trademark Registration covers a number of uses including but not limited to: i) candy,

cookies and crackers; ii) food staples such as ice cream, frozen yogurt, candy sweets and candy

bars; iii) toys and playthings; iv) children’s books and coloring books; and v) video files and

video animation.

21. The Gummibär Mark has been in continuous use in the United States since 2007,

and is recognized throughout the United States and internationally.

22.

The distinctive Gummibär Mark consists of an anthropomorphic, pudgy gummy

bear, with a green torso, one chewed up ear, wearing only yellow and white shorts and white

sneakers with yellow stripes.

23. GBI has successfully merchandized the Gummibär character internationally,

including throughout the United States. Gummibär merchandise includes but is not limited to t-

shirts, plush toys, children’s costumes, backpacks, candy and food products, party supplies,

school supplies and mouse pads.

24. GBI presently licenses its trademark to a candy manufacturer who sells

Gummibär branded gummy bear candies through national retail outlets and on GBI’s website.

25. GBI has received inquiries about licensing its intellectual property rights

domestically to open Gummibär-themed yogurt, ice cream, candy or other food stores. At all

times relevant hereto, GBI has been considering and evaluating opening Gummibär-themed

food, candy and/or merchandise stores.



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26. GBI has expended considerable sums each year in advertising and promoting the

famous Gummibär Mark and the goods associated therewith, and has generated significant

publicity with respect to its business operations and brand name.

THE DEFENDANTS’ INFRINGEMENT OF GBI’S TRADEMARK AND COPYRIGHTS

27. RFRD is a large family restaurant located in Harrington, Delaware. RFRD

consists of a large dining room and two banquet halls.

28. On or about October 30, 2014, the Delaware State News reported, in an article

attached hereto as Exhibit 4, that RFRD was expanding its business through the creation of the

Yogurt Shop. The Delaware State News further reported that RFRD was constructing a 2,600

square foot building adjacent to the existing restaurant to house the Yogurt Shop.

29.

The Defendants have blatantly infringed GBI’s trademark and copyrights through

their unbridled exploitation of Gummibär to promote the Yogurt Shop.

30. The Yogurt Shop extensively displayed actual images of the Gummibär character

and Gummibär artwork without GBI’s authorization. Unmistakably, the Defendants intended to

pass off the Yogurt Shop as an authorized Gummibär franchise. To accomplish this illicit goal,

RFRD misappropriated actual images of Gummibär from GBI’s website, and other sources, and

exploited those images to promote its business and to sell counterfeit Gummibär goods and

services.

31. Upon entering the Yogurt Shop, customers saw a large framed poster of

Gummibär (Exhibit 5).

32. The Yogurt Shop contains seven yogurt machines – each of which prominently

displayed three actual images of the distinctive Gummibär character (Exhibit 6). RFRD

provided its customers with cups conspicuously bearing a Gummibär image (Exhibit 7).



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33. Defendants pasted decals containing images of Gummibär on the floor of the

Yogurt Shop to direct customers through the self-serve yogurt shop (Exhibit 8). Upon entering

the Yogurt Shop, customers were directed, by following the decals, to first select a small,

medium or large cup containing an image of Gummibär and then to select the flavor of yogurt to

be dispensed from the yogurt machines. After filling their cups, customers could then select

from a variety of candy and cookie toppings of their choice, including gummy bears, to add to

their cups filled with “Rudy’s Gummy Berry” yogurt.

34. To promote the Yogurt Shop, RFRD also displayed the Gummibär image in its

diner on placemats (Exhibit 9), on business cards (Exhibit 10), and on t-shirts worn by waiters

(Exhibit 11).

35.

The Yogurt Shop also featured a connected Gummibär themed party room which

prominently displayed another large framed Gummibär poster (Exhibits 12 & 13). The party

room contained large easels to allow groups to engage in coloring and painting together.

Tellingly, GBI’s trademark registration covers coloring books, and GBI sold coloring books to

children.

36. RFRD further exploited the Gummibär character in its in-store promotions by

misappropriating an image of Gummibär taken from the popular “I am a Gummy Bear” music

video (Exhibit 14).

37. Strikingly, RFRD misappropriated the precise image of Gummibär contained in

the Trademark Registration for use on the floor decals, the business cards and the yogurt

machines. Thus, due to RFRD’s unauthorized use of the precise mark contained in GBI’s

trademark registration, RFRD confused customers mistakenly believed they were purchasing

Gummibär-licensed frozen yogurt and toppings.



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38. RFRD also prominently displayed a knock-off image of the Gummibär character

in a large billboard located in front of the store to direct traffic to the Yogurt Shop (Exhibit 15).

This knock-off image was the product of the Defendants’ crude effort to replicate Gummibär.

The Defendants interchangeably used the knock-off and actual images of Gummibär

simultaneously in the Yogurt Shop. The knock-off images were substantially and strikingly

similar to the actual images of Gummibär.

39. The Defendants also created and employed an unauthorized dancing Gummibär

mascot to entertain patrons in the store or to solicit cars driving by the store (Exhibits 16 & 17).

40.

The Defendants displayed on RFRD’s website and Facebook page photographs of

their exploitation of Gummibär throughout the Yogurt Shop, along with videos of their

Gummibär mascot performing inside and outside the restaurant (Exhibit 18).

41. Due to RFRD’s flagrant infringement and counterfeiting, confused Gummibär

fans have communicated to GBI in substance their mistaken impression that RFRD was an

authorized franchise of GBI, or licensed by GBI to exploit its intellectual property.

42.

This customer confusion is particularly disconcerting in light of some of the

negative reviews received by RFRD on various social media websites regarding R FRD’s

allegedly unsanitary conditions and rude staff. Further, Defendants tarnished the brand through

their use of a crude costume for its Gummibär mascot (as opposed to the professional costumes

used by GBI at trade shows or sold during Halloween).

43. A former manager at RFRD transmitted an email to GBI alerting GBI that the

Defendants were infringing GBI’s trademark. This communication confirms that the Defendants

willfully infringed GBI’s intellectual property rights.

44. GBI sent a cease and desist letter to the Defendants on July 13, 2015.



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45. The Defendants nonetheless continued willfully and flagrantly to infringe GBI’s

trademark and copyright through the end of August 2015, and upon information and belief, are

continuing to do so.

COUNT I

COPYRIGHT INFRINGEMENT UNDER 17 U.S.C. §101 et seq.

46. The allegations of the preceding paragraphs are incorporated by reference herein

with the same force and effect as if set forth in full below.

47. GBI is the copyright owner of the exclusive rights under copyright with respect to

the Gummibär images and character for which GBI has obtained a Certificate of Copyright

Registration issued by the Register of Copyrights.

48. Gummibär is protectable under copyright law as an original expression consisting

of the unique combination of Gummibär ’s appearance, characteristics, traits and behaviors.

49. The Defendants have never sought, and GBI has never granted to the Defendants,

any license to exploit Gummibär.

50. The Defendants have infringed GBI’s copyrights by displaying actual images of

Gummibär on the yogurt machines, on decals pasted on the floor of the Yogurt Shop, and in

large framed photographs displayed throughout the Yogurt Shop.

51. The Defendants further infringed GBI’s copyrights by displaying actual images of

Gummibär on the Defendants’ website and on the Defendants’ Facebook page to promote the

Yogurt Shop.

52.

Simultaneous with their use of actual images of Gummibär, the Defendants also

displayed knock-off images of Gummibär on a billboard in front of the store and inside the

Yogurt Shop (“knock-off images”). The knock -off images were substantially and strikingly



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similar to the actual images of Gummibär. The Defendants intended for their customers to view

the actual and knock-off images of Gummibär as representations of one and the same character.

53. The Defendants also violated GBI’s copyrights by directing an agent of RFRD to

dress in a Gummibär costume and to perform publicly in front of RFRD, and inside the Yogurt

Shop, as Gummibär. The Defendants then further infringed GBI’s copyrights by displaying

videos of these illegal performances on RFRD’s website and Facebook page.

54. Upon information and belief, the Defendants also have played GBI’s copyrighted

songs in the Yogurt Shop to solicit and entertain customers, including with the Defendants’

mascot present.

55. Upon information and belief, the Defendants are continuing in their unlicensed

and infringing activities.

56. The Defendants unauthorized acts constituted, and will continue to constitute,

willful infringement of GBI’s exclusive rights under copyright to Gummibär.

57. Defendants have unlawfully derived, and will continue to derive, income and

profits from their infringing acts. GBI has sustained, and will continue to sustain, substantial

injury, loss and damage.

58. As a direct and proximate result of the Defendants’ acts of copyright

infringement, GBI is entitled to actual damages and Defendants’ profits pursuant to 17 U.S.C. §

504(b). Alternatively, GBI is entitled to the maximum statutory damages in the amount of

$150,000 with respect to each infringed copyright pursuant to 17 U.S.C. § 504(c).

59. GBI is also entitled to attorneys’ fees pursuant to 17 U.S.C. § 505.

60. The Defendants’ conduct is causing and, unless enjoined by this Court, will

continue to cause irreparable injury to GBI that cannot be fully compensated or measured in



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money damages. GBI has no adequate remedy at law and, pursuant to 17 U.S.C. § 502, is

entitled to permanent injunctive relief prohibiting the Defendants from continuing to infringe

GBI’s copyrights.

COUNT II

FEDERAL TRADEMARK COUNTERFEITING

AND INFRINGEMENT UNDER 15 U.S.C. § 1114 et seq.



62. The Gummibär mark and goodwill of the business associated with the mark in the

United States is of great and incalculable value, is highly distinctive and has become universally

associated in the public mind with GBI’s products of the highest quality and reputation.

63.

The Defendants have sold candy and yogurt products in containers, and dispensed

from machines, bearing marks which are identical to the true Gummibär mark (“the Counterfeit

Products”).

64. The Defendants have manufactured, distributed, offered for sale and sold the

Counterfeit Products to the consuming public, in or affecting interstate commerce. At all times,

the Defendants acted without GBI’s authorization and consent, and with knowledge of GBI’s

prior rights in the Gummibär mark.

65. The Defendants’ use of actual copies of or simulations of the true Gummibär

mark on their Counterfeit Products and in conjunction with the Defendants’ infringing websites

is likely to cause and has caused confusion, mistake and deception among the general purchasing

public as to the origin of the Counterfeit Products, and has deceived and is likely to continue to

deceive the public into believing that the Counterfeit Products being sold by Defendants

originate from, are associated with or are otherwise authorized by GBI, all to the damage and



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detriment of GBI’s reputation, goodwill and sales. Accordingly, Defendants have used and are

using reproductions, counterfeits and copies of GBI’s federally registered marks in violation of

15 U.S.C. § 1114.

66. GBI has no adequate remedy at law and, if Defendants’ activities are not

enjoined, GBI will continue to suffer irreparable harm and injury to its goodwill and reputation.

67. Defendants’ actions demonstrate an intentional, willful and malicious intent to

trade on the goodwill associated with the Gummibär mark, to GBI’s great and irreparable injury.

68. Defendants are causing and will continue to cause substantial injury to the public

and to GBI, and GBI is entitled to injunctive relief and to recover Defendants’ profits, treble

damages, or, in the alternative, maximum statutory damages as well as costs, and reasonable

attorneys’ fees under 15 U.S.C. §§ 1114, 1116 and 1117.

COUNT III

UNFAIR COMPETITION AND

FALSE DESIGNATION OF ORIGIN UNDER 15 U.S.C. § 1125(a)



70. The Defendants’ knowing use of the Gummibär mark, or confusingly similar

imitations of the true Gummibär mark, in connection with the sale of goods in the Yogurt Shop,

has caused and will continue to cause confusion, deception and mistake among the general

purchasing public, by creating the false and misleading impression that Defendants’ goods are

manufactured or distributed by Gummibär, or are affiliated, connected or associated with

Gummibär, or have the sponsorship, endorsement or approval of Gummibär.

71. By misappropriating and using the Gummibär mark and trade dress, Defendants

have misrepresented and falsely described to the general public the origin and source of the



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products being sold in the Yogurt Shop and have created a likelihood of confusion by consumers

as to the source of such merchandise.

72. Defendants have expressly and implicitly represented that the products sold in the

Yogurt Shop were created, authorized or approved by GBI, all to Defendants’ profit and to

GBI’s great damage and injury.

73. Defendants’ aforesaid acts are in violation of Section 43(a) of the Lanham Act, 15

U.S.C. § 1125(a), in that Defendants’ use of the GBI mark, in connection with their goods and

services, in interstate commerce constitutes a false designation of origin and unfair competition.

74.

GBI has no adequate remedy at law and, if the Defendants’ activities are not

enjoined, GBI will continue to suffer irreparable harm and injury to its goodwill and reputation.

75.

Defendants’ actions demonstrate an intentional, willful and malicious intent to

trade on the goodwill associated with the GBI mark to GBI’s great and irreparable injury.

COUNT IV

TRADEMARK DILUTION UNDER 15 U.S.C. § 1125(C)



77. Plaintiff’s mark is a famous mark within the meaning of 15 U.S.C. §1125 (c)(1)

and had become a famous mark prior to the Defendants’ conduct complained of herein.

78. Plaintiff ’s trademark is famous by virtue of its inherent and acquired

distinctiveness, along with through the Plaintiff’s extensive use, advertising and publicity of the

mark that has resulted in strong and widespread recognition of the mark, and by virtue of the

registration of the mark on the Principal Trademark Register of the United States Patent and

Trademark office.



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79. The Defendants’ use of the Plaintiff’s mark on and in connection with the sale and

distribution of the infringing products dilutes the strength and distinctive quality of Plaintiff’s

famous trademark and lessens the capacity of the Plaintiff’s trademark to identify and distinguish

Plaintiff’s products. Defendants also have tarnished the Plaintiff’s trademark by associating it

with the negative review of the Defendants’ business and through their public display of their

crude Gummibär mascot.

80. The acts and conduct complained of herein constitute willful and deliberate

dilution of Plaintiff’s trademark. The foregoing acts of the Defendants constitute a violation of

the federal anti-dilution statute, Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c).

81. By reason of all the foregoing, Plaintiff has been damaged by the Defendants’

willful use of the Plaintiff’s trademark in the manner set forth above and will continue to be

irreparably injured unless the Defendants are permanently enjoined from using the mark.

82. Plaintiff is entitled to all damages it has sustained in an amount to be determined

at trial including but not limited to the Defendants’ profits and gains as a result of their unfair

competition described above, attorneys’ fees and costs of this action. Moreover, by virtue of the

Defendants’ willful infringement, Plaintiff is entitled to statutory damages.

COUNT V

FALSE ADVERTISING – LANHAM ACT § 43(A), 15 U.S.C. § 1125(A)



84.

Upon information and belief, the Defendants advertised the Yogurt Shop, through

exploitation of the Gummibär mark, on the internet, in the print media, in a billboard in front of

the store and through public performances by their unlicensed Gummibär mascot.



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85. Section 43(a) of the Lanham Act , 15 U.S.C. § 1125(a) provides in relevant part

that “any person who, or in connection with any goods or services, … uses in commerce any …

false or misleading description of fact, which … in commercial advertising or promotion,

misrepresents the nature, characteristics, qualities or geographic origin of his or her or another

person’s goods, services, or commercial activities, shall be liable to a civil action by any person

who believes that he or she is likely to be damaged by such act.”

86. The aforementioned advertising contained false representations as to the origin,

sponsorship, or approval of Defendants’ goods, services, or commercial activities by GBI.

87.

By reason of the Defendants’ conduct, Plaintiffs have suffered and will continue

to suffer, damage to their businesses, reputations and goodwill. Pursuant to 15 U.S.C. § 1117,

Plaintiffs are entitled to damages for Defendants’ Lanham act violations, an accounting of profits

made by Defendants through their sale of infringing goods and services, and the recovery of

Plaintiff’s costs and reasonable attorneys’ fees incurred in this action.

88. Defendants’ acts are willful, wanton and calculated to deceive, and are undertaken

in bad faith, making this an exceptional case entitling Plaintiff to recover additional damages and

reasonable attorneys’ fees pursuant to 15 U.S.C. § 1117.

89. Unless enjoined by this Court, Defendants’ acts will irreparably injure Plaintiffs’

goodwill. Pursuant to 15 U.S.C. § 1116, Plaintiffs are entitled to permanent injunctive relief to

prevent Defendants’ continuing acts.

COUNT VI

VIOLATION OF THE DELAWARE DECEPTIVE TRADE PRACTICES ACT



91. 6 Del. C. § 2532 provides that:



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(a) A person engages in a deceptive trade practice when, in the course of his business,

vocation, or occupation, that person:

(1) Passes off goods or services as those of another;

(2) Causes likelihood of confusion or of misunderstanding as to the source,

sponsorship, approval, or certification of goods or services;

(3) Causes likelihood of confusion or of misunderstanding as to affiliation,

connection, or association with, or certification by, another … ;

(5) represents that goods or services have sponsorship, approval, characteristics,

ingredients, uses, benefits, or quantities that they do not have or that a person

has a sponsorship, approval, status, affiliation or connection that he or she

does not have;

(12) engages in any other conduct which similarly creates a likelihood of

confusion or of misunderstanding.

92. 6 Del. C. § 2532 provides a private right of action to enforce the provisions of 6

Del. C. § 2532.

93. In the course of their business, the Defendants, by and through their false and

misleading representations of fact and conduct concerning Gummibär have engaged in and

continue to engage in deceptive trade practices in violation of 6 Del. C. § 2532.

94. Defendants have willfully engaged in their actions regarding Gummibär knowing

them to be deceptive.

95. By reason of the Defendants’ conduct, Plaintiffs have suffered and will continue

to suffer damage to its business, reputation and goodwill.



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COUNT VII

COMMON LAW UNFAIR COMPETITION



97. Defendants’ actions as described above have been undertaken with the intention

of benefiting from and profiting upon the name and associated goodwill connected with

Gummibär. Defendants accomplished this goal through the use of the Gummibär trademark and

trade dress owned by Plaintiffs.

98. Defendants’ use of the trademark and trade dress owned by the Plaintiff was

intended to, and unless restrained by this Court, will lead and tends to lead the public to believe

that there is a connection or association between Defendants and Plaintiff, when in fact there is

none.

99. Upon information and belief, Defendants have made, and unless enjoined, will

continue to make considerable profit as the direct result of their wrongful actions, which have

been undertaken in wanton, willful and reckless disregard of Plaintiff’s rights.

100. Defendants’ actions injured Plaintiff’s reputation and goodwill and expressly

misled the public by falsely imputing a connection or relationship between Defendants’ inferior

products and services and Plaintiff. This has caused the Plaintiff to suffer financially, and

constitutes unfair competition in derogation of the common law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests the following relief:

1.

That Defendants and their respective agents, servants, employees,

contractors and all persons, firms, corporations, or entities acting under Defendants’ direction,

authority or control, and all persons acting in concert with any of them, be permanently enjoined



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from: a) using the Plaintiff’s copyrights, trademarks, service marks, logos and trade dress, or any

copy, counterfeit or imitation of any of them in any manner, including but not limited to in

advertising, promoting, and/or marketing their Yogurt Shop; b) committing or inducing others to

commit any other infringing acts calculated to cause purchasers to believe that Defendants are

selling Plaintiff’s genuine products;

2. That Defendants be required to account pursuant to 17 U.S.C. § 504 and

15 U.S.C. § 1117 for Plaintiff’s losses and Defendants’ profits derived from advertising,

promoting, marketing, purchasing, distributing, displaying, selling, offering to sell product which

infringe upon Plaintiff’s copyrights and trademark.

3.

That Defendants be ordered to pay statutory damages for willful copyright

infringement in an amount of not less than $150,000 per copyrighted work infringed;

4. That Plaintiff be awarded damages in an amount to be determined at trial

in connection with Defendants’ acts of trademark infringement, unfair competition, and dilution

of Plaintiff’s trademark and trade dress under both the Lanham Act and Delaware Law;

5. That Defendants be ordered to pay either actual damages and infringing

profits or statutory damages for willful trademark counterfeiting in an amount of up to

$2,000,000 per counterfeit mark per type of goods sold, offered for sale or distributed as the

Court considers just;

6. That all infringing merchandise, advertisements, containers, photographs,

decals and posters, which incorporate the Plaintiff’s copyrights, trademarks, service marks, logos

and trade dress, or any copy or imitation of any of them, be surrendered, impounded and

destroyed pursuant to Lanham Act, 15 U.S.C. § 1118 and Copyright Act, 17 U.S.C. § 503;



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7. That Defendants be ordered to pay Plaintiff’s costs incurred herein,

including reasonable attorneys’ fees;

8. That treble damages be awarded for all trademark damages assessed

herein;

9. That exemplary and punitive trademark damages be awarded; and

10. That Plaintiff be awarded such other and further relief as is just, proper

and equitable.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a trial

by jury as to all issues so triable.

LAW OFFICES OF

MICHELE D. ALLEN, LLC

/s/ Michele D. AllenMichele D. Allen, Esq. (Bar ID 4359)724 Yorklyn Road, Suite 310

Hockessin, DE 19707Telephone: (302) 234-8600Facsimile: (302) [email protected] Attorney for Plaintiff

Dated: February 24, 2016

KAGEN & CASPERSEN

/s/ Russell Bogart

Russell Bogart, Esq. (RB 0320)900 Third Avenue, 17th Floor New York, N.Y. 10007

(212) [email protected] Pro Hac Vice pending


mailto:[email protected]:[email protected]:[email protected]


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EXHIBIT

NUMBER

DESCRIPTION

1 Copies of the Certificates of Copyright Registration pertaining to Gummibärobtained by GBI.

2 Images of Gummibär from “The Yummy Gummy Search for Christmas” DVD.

3 The Trademark Registration for the Gummibär Mark.

4 October 30, 2014 Delaware State News Article.

5 Photographs of a large, framed Gummibär poster present in the front of theYogurt Shop.

6 Photographs of the displaying of actual Gummibär images on the yogurtmachines contained in the Yogurt Shop.

7 Photographs of the cups used in the Yogurt Shop which display the Gummibärimage.

8 Photographs of the Gummibär decals pasted to the floor of the Yogurt Shop.

9 Photograph of the Gummibär image on placemats.

10 Photographs of the Gummibär image on business cards.

11 Photographs of the Gummibär image on t-shirts.

12 Photograph of the Gummibär themed party room.

13 Photograph of the exploitation of Gummibär in promotions.

14 Photograph of the exploitation of Gummibär in promotions.

15 Photograph of the display of Gummibär in a billboard located in front of theYogurt Shop.

16Images from a video available on the Facebook page for the Defendants whichdepicted the Defendants’ use of a Gummibär mascot to entertain children in theYogurt Shop.



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17Images from a video available on the Facebook page for the Defendants whichdepicted the Defendants’ use of a Gummibär mascot located in front of theYogurt Shop soliciting customers for the Defendants.

18 Photographs displayed on the Defendants’ website and Facebook page whichexploit the Gummibär image.


Gummy Bear International v. Kocakus and Rudy's Family.pdf

Documents

Transcript of Gummy Bear International v. Kocakus and Rudy's Family.pdf