Kevin M. Hayes , OSB #012801 KLARQUIST SPARKMAN, LLP...

COMPLAINT FOR TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

MACKENZIE ARCHITECTURE, INC.,

an Oregon Corporation,

Plaintiff,

v.

MACKENZIE ENGINEERING, INC.

d/b/a MACKENZIE, an Oregon

Corporation, and

GROUP MACKENZIE

INCORPORATED ARCHITECTURE

PLANNING & INTERIOR DESIGN, a

Washington Corporation,

Defendants.

Civil No. 0:14-cv-00886

COMPLAINT FOR TRADEMARK

INFRINGEMENT AND UNFAIR

COMPETITION

DEMAND FOR JURY TRIAL

Kevin M. Hayes, OSB #012801

Email: [email protected]

KLARQUIST SPARKMAN, LLP

121 S.W. Salmon Street, Suite 1600

Portland, Oregon 97204

Telephone: 503-595-5300

Facsimile: 503-595-5301

Attorney for Plaintiff

Mackenzie Architecture, Inc.

Case 3:14-cv-00886-AA Document 1 Filed 06/02/14 of 14 Page ID#: 1


Page 1

Plaintiff Mackenzie Architecture, Inc., doing business as Mackenzie Architecture,

through its attorneys, complains of Defendant Mackenzie Engineering, Inc.’s,

(“Mackenzie Engineering”) use of the mark MACKENZIE and Defendant Group

Mackenzie Incorporated Architecture Planning & Interior Design (“Group Mackenzie”)

use and registration of the mark MACKENZIE (collectively “Defendants”), and alleges

as follows, upon knowledge with respect to itself and its own acts, and upon information

and belief as to all other matters:

I. THE MACKENZIE ARCHITECTURE MARK

AND THE NATURE OF THE ACTION

1. Mackenzie Architecture owns the mark MACKENZIE ARCHITECTURE

and has been using the mark for at least nearly a decade for its architecture services.

2. Before Mackenzie Architecture adopted its MACKENZIE

ARCHITECTURE mark, it used other marks comprising MACKENZIE.

3. Until recently, Defendant, Mackenzie Engineering used the mark GROUP

MACKENZIE for its engineering services, which also included, in some cases,

architecture services. It is believed that Defendant Group Mackenzie also used the mark

GROUP MACKENZIE for its engineering services, which also included, in some cases,

architecture services. It is unclear which of Defendants actually own the mark GROUP

MACKENZIE as Mackenzie Engineering has stated that the mark is its mark, but Group

Mackenzie is the listed owner of the trademark registration that was for GROUP

MACKENZIE and has been improperly amended to MACKENZIE alone (Reg. No.

2091725). It is believed that Mackenzie Engineering and Group Mackenzie are related

entities acting in concert with each other.



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4. It is believed that one or both of Defendants used the mark GROUP

MACKENZIE for their services from around sometime around 1996 until about August

2013.

5. In that time period, it is believed that Plaintiff and Defendants were able to

coexist using their respective marks, MACKENZIE ARCHITECTURE and GROUP

MACKENZIE.

6. But then, around August 2013, Defendants dropped GROUP from the

mark GROUP MACKENZIE and began operating under the mark MACKENZIE alone.

7. Defendants’ change to simply MACKENZIE usurps rights in all

MACKENZIE formative marks and confuses consumers into mistakenly believing that

Defendants and Plaintiff are associated, or that one is infringing the other.

8. Making the situation even worse in this case, Defendant Mackenzie

Engineering also uses the Internet search heading for its website “Mackenzie

│Architecture …,” which is of course, Plaintiff’s mark.

9. Plaintiff brings this suit to stop Defendants from causing confusion with

Plaintiff’s MACKENZIE ARCHITECTURE mark.

II. THE PARTIES

10. Plaintiff Mackenzie Architecture Inc. is an Oregon corporation operating

in the state of Oregon with its principal place of business in Portland, Oregon. Plaintiff is

located and does business within this judicial district.

11. Defendant Mackenzie Engineering, Inc. is an Oregon corporation

operating in the state of Oregon with its principal place of business in Portland, Oregon.

Defendant is located and does business within this judicial district.



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12. Defendant Group Mackenzie Incorporated Architecture Planning &

Interior Design’s Trademark Registration No. 2091725 states that Group Mackenzie is a

Washington Corporation. Thus, it is believed that it is a Washington Corporation.

Group Mackenzie’s principal place of business is believed to be in Portland, Oregon, as

Trademark Registration No. 2091725 states that the address for Group Mackenzie is in

Portland, Oregon. Defendant is located and does business within this judicial district.

III. JURISDICTION AND VENUE

13. This Court has jurisdiction over the subject matter of this action because

this action arises under the Federal Trademark Act, 15 U.S.C. §§ 1051-1127, jurisdiction

being conferred in accordance with 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338.

Supplemental jurisdiction over the causes of action under Oregon state law is proper as

those causes of action are substantially related to the causes of action over which the Court

has original jurisdiction, pursuant to 28 U.S.C. §§ 1338(b) and 1367. Venue is proper

under 28 U.S.C. §§ 1391(b) in that Defendants are transacting business within this judicial

district and have committed acts complained of herein in this judicial district (or those acts

have been aimed at and felt within this judicial district).

IV. THE FACTS

14. Plaintiff has used the mark and been known as MACKENZIE

ARCHITECTURE for architectural services since at least as early as 2005.

15. Plaintiff’s owner’s (Hilary Mackenzie) father, Tom Mackenzie, was a

founder of Defendant Mackenzie Engineering, Inc. in the 1960’s. On information and

belief, Defendants were aware of Plaintiff’s use of MACKENZIE ARCHITECTURE

since at least 2005 and other MACKENZIE formative marks since at least the 1990s.



Page 4

16. Defendants did not begin use of the mark MACKENZIE alone until about

August 2013. Before that time, Defendants did not use the mark MACKENZIE alone for

their services. Instead, Defendants used the mark GROUP MACKENZIE for their

services.

17. Defendants did not begin use of “Mackenzie │Architecture …,” shown

below in Defendant Mackenzie Engineering, Inc.’s Internet search heading until

sometime in or after August 2013.

18. Defendants use an Internet search heading comprising

“Mackenzie │Architecture …” in connection with offering architecture services to third

parties.

19. Defendants use the mark MACKENZIE alone in connection with offering

architecture services to third parties.



Page 5

20. Defendant Mackenzie Engineering, Inc. has taken telephone calls for

“Mackenzie Architecture” and answered affirmatively that it was “Mackenzie

Architecture” when asked. Defendant has then transferred the callers to employees in its

architectural services department. A person in Defendant’s employ has also admitted that

Defendant’s change to use of MACKENZIE alone for architecture services could cause

confusion with MACKENZIE ARCHITECTURE.

21. Defendant Group Mackenzie is listed as the owner of federal trademark

registration no. 2,091,275, which was initially for the mark GROUP MACKENZIE for

“architectural services; engineering services in the fields of civil, structural and

transportation engineering.”

22. Defendant Group Mackenzie amended trademark registration no.

2,091,275 from GROUP MACKENZIE to simply MACKENZIE by deleting GROUP in

or about August 2013.

23. To amend trademark registration no. 2,091,275, Defendant Group

Mackenzie told the United States Patent and Trademark Office that: “The removal of the

term ‘GROUP’ does not impact the commercial impression of the GROUP

MACKENZIE mark…” and that “consumers are unlikely to have assigned any meaning

to the term ‘GROUP’ as a source identifier, and have instead perceived the term

‘MACKENZIE’ as the ‘source’ of the GROUP MACKENZIE mark,” and that dropping

GROUP “does not constitute a material alternation of the original mark.”

24. Defendant was wrong.

25. The mark MACKENZIE and the mark GROUP MACKENZIE have

different commercial impressions and are not interchangeable.



Page 6

26. The two marks are different in at least that the first conveys the

commercial impression that the mark owner and source of the services operate as a

“group,” while the second carries no such connotation and conveys no such commercial

impression.

27. Defendant Mackenzie Engineering, Inc. has even admitted that GROUP

MACKENZIE conveys the commercial impression that the services offered under the

mark are a full range of integrated design services and that the mark owner employs

shareholder system.

28. Moreover, Defendant Group Mackenzie deleted the first word of its mark -

and placement of a word as first in a mark tends to make that term dominant in a mark

and be remembered by consumers. Thus, GROUP in GROUP MACKENZIE likely

served as a differentiating element.

29. Regarding its change of its mark from Mackenzie Engineering, Inc. to

GROUP MACKENZIE back in the 1990s, and highlighting the special commercial

impression that Defendant Mackenzie Engineering, Inc. believed was conveyed by

GROUP MACKENZIE, Defendant Mackenzie Engineering, Inc. has stated that: “The

new name [GROUP MACKENZIE] reflects the full range of integrated design services

and heralds a change in company ownership—moving toward a shareholder system in

which employees are vested in the firm's success.” (See the screen capture copied



Page 7

below).

30. The mark MACKENZIE alone lacks the commercial impression of a full

range of integrated design services and a shareholder system of company ownership.

31. The Patent and Trademark Office did not republish Defendant Group

Mackenzie’s new mark, MACKENZIE, to allow the public to oppose Defendant Group

Mackenzie’s registration of the mark. Thus, Plaintiff had no chance to oppose the

registration.

32. Defendants’ actions are knowing, willful, and without Plaintiff’s

authorization. Defendants are liable for the resulting acts of unfair competition, and

trademark infringement.



Page 8

V. CAUSES OF ACTION

A. Unfair Competition

33. Plaintiff, Mackenzie Architecture, repeats and re-alleges each and every

allegation contained in the above paragraphs of this Complaint as though fully set forth

herein.

34. This cause of action for unfair competition arises under Section 43(a)(1) of

the Lanham Act, 15 U.S.C. § 1125 (a)(1), and Oregon state common law.

35. Defendants’ use of the MACKENZIE and “Mackenzie │Architecture …,”

in commerce for architecture services as alleged hereinabove is likely to cause confusion,

mistake, or deception as to the affiliation, connection, or association of Defendants with

Plaintiff or as to the origin, sponsorship, or approval of the services of Defendants and

those of Plaintiff, and misrepresents the nature, characteristics, and qualities of those

services.

36. The acts of Defendants constitute unfair competition in violation of Section

43(a)(1) of the Lanham Act, 15 U.S.C. § 1125(a)(1), and unfair competition under Oregon

common law.

37. Plaintiff is without an adequate remedy at law because Defendants’ unfair

competition is causing irreparable injury to Plaintiff, and unless said acts are enjoined by

this Court, they will continue and Plaintiff will continue to suffer irreparable injury.

38. Defendants’ acts of unfair competition, if not enjoined, will cause Plaintiff

to sustain monetary damages, loss, and injury.

B. Trademark Infringement

39. Plaintiff repeats and realleges each and every allegation contained in the

above paragraphs of this Complaint as though fully set forth herein.



Page 9

40. The acts of Defendants constitute trademark infringement in violation

Oregon common law.

41. Defendants’ use of MACKENZIE and “Mackenzie │Architecture …,”as

alleged hereinabove is likely to cause confusion, mistake, or deception as to the source,

sponsorship, or approval of the products and services of Defendants in that others are

likely to believe that Defendants’ services are in some way legitimately connected with,

sponsored or licensed by, or otherwise related to Plaintiff.

42. Defendants’ use of MACKENZIE and “Mackenzie │Architecture …,”

was made with actual or constructive knowledge of Plaintiff’s rights in MACKENZIE

ARCHITECTURE.

43. Defendants’ use of MACKENZIE and “Mackenzie │Architecture …,” is

without Plaintiff’s consent or permission.

44. Defendants’ acts of trademark infringement, unless enjoined, will cause

Plaintiff to sustain monetary damages, loss, and injury.

C. Improper Amendment



46. Defendant Group Mackenzie’s amendment of trademark registration no.

2,091,275 was improper.

47. The Patent and Trademark Office should not have allowed Defendant

Group Mackenzie to amend trademark registration no. 2,091,275 from GROUP

MACKENZIE to MACKENZIE.



Page 10

48. GROUP MACKENZIE and MACKENZIE have different commercial

impression.

49. The Court should utilize its power under 15 USC §1119 to rectify the

trademark register to change Defendant Group Mackenzie’s registration back to GROUP

MACKENZIE.

D. Improper Ownership



51. Defendant Group Mackenzie’s trademark registration no. 2,091,275 is

indicated in United States Patent and Trademark Office records as being owned by

“GROUP MACKENZIE INCORPORATED ARCHITECTURE PLANNING &

INTERIOR DESIGN CORPORATION WASHINGTON 0690 SW BANCROFT

STREET PO BOX 69039 PORTLAND OREGON 97201.”

52. United State Patent and Trademark Office assignment records indicate that

Registration No. 2091725 for GROUP MACKENZIE was assigned from

“Mackenzie/Saito & Associates, P.C.” to “Group Mackenzie Incorporated Architecture

Planning & Interior Design” on September 30, 1996.

53. On information and belief and according to the Washington Secretary of

State records there is and has been no Washington entity known as Group Mackenzie

Incorporated Architecture Planning & Interior Design.

54. As it appears that Registration No. 2091725 was assigned to a non-existent

entity, the Court should utilize its power under 15 USC §1119 to rectify the trademark

register to cancel Registration No. 2091725.



Page 11

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, Mackenzie Architecture, prays that, pursuant to 15

U.S.C. §§ 1116 to §1125 and Oregon state law:

A. The Court finds that Plaintiff owns valid and subsisting trademark rights

in MACKENZIE ARCHITECTURE.

B. Defendants be held liable under each claim for relief set forth in this

Complaint.

C. The Court grant an injunction that Defendants, their affiliated companies,

and their agents, servants, employees, and attorneys, and all other persons in active

concert or participation with them, be enjoined from using MACKENZIE alone (however

spelled or punctuated, whether capitalized, abbreviated, singular or plural, printed or

stylized, whether alone or in combination with any word(s), punctuation or symbol(s),

and whether used in caption, text, orally or otherwise), or any other reproduction, copy,

colorable imitation or confusingly similar variation of MACKENZIE alone, as a

trademark or service mark, trade name or domain name, or in advertising, distribution,

sale, or offering for sale of architectural services.

D. The Court grant an injunction that Defendants, their affiliated companies,

and their agents, servants, employees, and attorneys, and all other persons in active

concert or participation with them, be enjoined from using the term MACKENZIE

adjacent the term ARCHITECTURE, such as in “Mackenzie │Architecture ….”

E. The Court order as part of the injunction and pursuant to 15 U.S.C.

§ 1116(a) that Defendants file with the Court and serve on Plaintiff within thirty days

after the service on the Defendants of the injunction, a report in writing under oath setting



Page 12

forth in detail the manner and form in which the Defendants have complied with the

injunction.

F. The Court utilize its power under 15 USC §1119 to order the Patent and

Trademark Office to rectify the trademark register by cancelling trademark registration

no. 2,091,275 or changing Defendant Group Mackenzie’s trademark registration no.

2,091,275 back to GROUP MACKENZIE.

G. Defendants be required to pay to Plaintiff’s damages from Defendants’ use

of MACKENZIE alone for architectural services, pursuant to 15 U.S.C. § 1117 and the

equity powers of this Court.

H. Defendants be required to pay to Plaintiff profits made in connection with

their use of MACKENZIE alone for architectural services, pursuant to 15 U.S.C. § 1117

and the equity powers of this Court.

I. Defendants be required to pay to Plaintiff its reasonable attorneys’ fees

and disbursements incurred herein, pursuant to 15 U.S.C. § 1117 and the equity powers

of this Court.

J. Defendants be required to pay Plaintiff the costs of this action.

K. The Court award Plaintiff such other and further relief as this Court deems

just and equitable.

Respectfully submitted,

Dated: June 2, 2014 By: _s/ Kevin M. Hayes______________

Kevin M. Hayes, OSB #012801

Email: [email protected]

Klarquist Sparkman, LLP

121 S.W. Salmon Street, Suite 1600

Portland, Oregon 97204

Telephone: 503-595-5300



Page 13

Facsimile: 503-595-5301

Attorneys for Plaintiff

Mackenzie Architecture, Inc.


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VII. REQUESTED IN

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VIII. RELATED CASE(S)

IF ANY(See instructions):

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MACKENZIE ARCHITECTURE, INC. MACKENZIE ENGINEERING, INC. d/b/a MACKENZIE andGROUP MACKENZIE INCORPORATED ARCHITECTUREPLANNING & INTERIOR DESIGN

15 U.S.C. §§ 1051-1127

Trademark infringement and unfair competition

06/02/2014 /s/ Kevin M. Hayes

Case 3:14-cv-00886-AA Document 1-1 Filed 06/02/14 Page 1 of 1 Page ID#: 15

AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare 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 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

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

a Washington Corporation

District of Oregon

MACKENZIE ARCHITECTURE, INC., an OregonCorporation,

0:14-cv-00886

MACKENZIE ENGINEERING, INC. d/b/aMACKENZIE, an Oregon Corporation, andGROUP MACKENZIE INCORPORATED

ARCHITECTURE PLANNING & INTERIOR DESIGN,

MACKENZIE ENGINEERING, INC.SW&W Registered Agents, Inc., Agent for Service of Process1211 SW 5th Ave., Suite 1900Portland, OR 97204

Kevin M. HayesKlarquist Sparkman, LLP121 S.W. Salmon Street, Suite 1600Portland, Oregon 97204


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

! I personally served the summons on the individual at (place)

on (date) ; or

! 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

! I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

! I returned the summons unexecuted because ; or

! Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0:14-cv-00886

0.00


AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

__________ District of __________

))))))))))))

Plaintiff(s)

v. Civil Action No.

Defendant(s)

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare 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 ofthe Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney,whose name and address are:

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

a Washington Corporation

District of Oregon

MACKENZIE ARCHITECTURE, INC., an OregonCorporation,

0:14-cv-00886

MACKENZIE ENGINEERING, INC. d/b/aMACKENZIE, an Oregon Corporation, andGROUP MACKENZIE INCORPORATED

ARCHITECTURE PLANNING & INTERIOR DESIGN,

GROUP MACKENZIE INCORPORATED ARCHITECTURE PLANNING & INTERIOR DESIGN0690 SW Bancroft StreetPO Box 69039Portland, OR 97201

Kevin M. HayesKlarquist Sparkman, LLP121 S.W. Salmon Street, Suite 1600Portland, Oregon 97204


AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date) .

! I personally served the summons on the individual at (place)

on (date) ; or

! 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

! I served the summons on (name of individual) , who is

designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

! I returned the summons unexecuted because ; or

! Other (specify):

.

My fees are $ for travel and $ for services, for a total of $ .

I declare under penalty of perjury that this information is true.

Date:Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0:14-cv-00886

0.00


Kevin M. Hayes , OSB #012801 KLARQUIST SPARKMAN, LLP...

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