United Brands Company, Inc. v. Anheuser-Bush, Inc.

Filing 38

SECOND AMENDED COMPLAINT with Jury Demand Second Amended Complaint against Anheuser-Busch, Inc., filed by United Brands Company, Inc.. (Attachments: # 1 Exhibit A-1, # 2 Exhibit A-2, # 3 Exhibit B-1, # 4 Exhibit B-2, # 5 Exhibit C-1, # 6 Exhibit C-2, # 7 Exhibit C-3, # 8 Exhibit C-4) (Dix, Nancy) (cge).

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NANCY O. DIX (Bar No. 129150)
BRIAN L. BEHMER (Bar No. 156978)
CHRISTINA D. YATES (Bar No. 201748)
CHRISTOPHER J. BEAL (Bar No. 216579)
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, CA 92101-4297
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]

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Tel: [phone]
Fax: [phone]

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Attorneys for Plaintiff
UNITED BRANDS COMPANY, INC.

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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UNITED BRANDS COMPANY, INC.,

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Plaintiff,

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v.

SECOND AMENDED COMPLAINT FOR:

ANHEUSER-BUSCH, INC.
Defendant.

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CASE NO. 10-cv-02281-AJB-WMC

FEDERAL DILUTION; FEDERAL TRADE
DRESS AND TRADEMARK
INFRINGEMENT AND FALSE
DESIGNATION OF ORIGIN IN VIOLATION
OF THE LANHAM ACT SECTION 43(A);
FEDERAL COPYRIGHT INFRINGEMENT;
CALIFORNIA TRADEMARK
INFRINGEMENT AND DILUTION; UNFAIR
COMPETITION UNDER CALIFORNIA
BUSINESS AND PROFESSIONS CODE
SECTION 17200 ET SEQ.; CALIFORNIA
COMMON LAW TRADEMARK
INFRINGEMENT; CALIFORNIA COMMON
LAW UNFAIR COMPETITION

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DEMAND FOR TRIAL BY JURY
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INTRODUCTION
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This is an action for trademark infringement, copyright infringement, unfair

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competition, and related claims. Plaintiff United Brands Company, Inc. (“United Brands”) is the

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maker of the popular drink JOOSE, a flavored malt beverage which it has sold since 2006. The

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most popular version of JOOSE is Plaintiff’s DRAGON JOOSE (see below).

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Defendant Anheuser-Busch makes a competing flavored malt beverage called

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TILT. For several years, Defendant sold the TILT product in silver cans that did not resemble

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Plaintiff’s JOOSE or DRAGON JOOSE cans. In fact, until recently, Defendant’s product was

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sold in a can featuring the design of a large streamlined letter “T” tilted at an angle emphasizing

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the “TILT” name for its product.

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3.

Recently, however, Defendant completely changed the design and began selling

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TILT in cans featuring a dragon design that closely resembles the design of Plaintiff’s DRAGON

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JOOSE cans (see below for new design). Defendant’s use of these intentionally similar and

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infringing design elements is likely to or has caused confusion as to source, affiliation, or

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connection with Plaintiff, and also constitutes copyright infringement. Plaintiff brings this action

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to prevent Defendant from infringing Plaintiff’s marks and copyrights, and prevent confusion in

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the marketplace, and to address related state and common law claims.

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JURISDICTION AND VENUE
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This is an action for: (a) federal trade dress and trademark infringement, and false

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designation of origin arising under 15 U.S.C. § 1125(a); (b) federal dilution arising under 15

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U.S.C. § 1125(c); (c) copyright infringement arising under 17 U.S.C. §§ 101 and 501; (d) dilution

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arising under California Business & Professions Code § 14330 et seq.; (e) trademark infringement

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arising under California Business & Professions Code § 14245 et seq.; (f) unfair competition

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arising under California Business & Professions Code § 17200 et seq., (g) trademark infringement

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arising under the common law of the State of California; and (h) unfair competition arising under

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the common law of the State of California.

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This Court has subject matter jurisdiction pursuant to 15 U.S.C. § 1121 and 28

U.S.C. §§ 1331, 1338(a) and (b), and 1367(a).
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DLA P IPER LLP (US)

Venue is proper in this Judicial District pursuant to 28 U.S.C. §§ 1391(b) and (c).
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THE PARTIES

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Plaintiff UNITED BRANDS COMPANY, INC. (“United Brands”) is a California

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corporation having its principal place of business at 5355 Mira Sorrento Place Ste. 270 San Diego

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CA 92121. JOOSE BEVERAGE COMPANY is a division of United Brands.

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United Brands is informed and believes, and on that basis alleges, that Defendant

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Anheuser-Busch, Inc. is a Delaware corporation with a place of business at Executive Office, One

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Busch Place, St. Louis, Missouri 63118-1852. Defendant is subject to the jurisdiction of this

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Court by virtue of its substantial contacts with California, including its participation in the acts

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and events occurring in this Judicial District as described herein.

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ALLEGATIONS FOR ALL CLAIMS FOR RELIEF
A.

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United Brands’ JOOSE Marks and Copyrights
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United Brands is a leader in the business of designing, producing and selling

alcoholic beverages, including flavored malt beverages.

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In 2006, United Brands launched its JOOSE flavored malt beverage. United

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Brands’ successful line of JOOSE flavored malt beverages has grown to include a variety of

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products that prominently use United Brands’ JOOSE, and JOOSE and design trademarks. In

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2007, United Brands launched is DRAGON JOOSE product, in the can shown above, and

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continues to market and distribute this product today. The can features United Brands’ JOOSE,

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JOOSE and design, and Dragon Design trademarks and Trade Dress elements which have

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remained substantially unchanged since launch.

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United Brands has devoted a great deal of time, money and resources to create and

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market its JOOSE products, including DRAGON JOOSE, including its inherently distinctive

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packaging design which sets the JOOSE brand products apart from its competition.

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United Brands’ use on its DRAGON JOOSE product of the distinct color scheme,

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stylized, archaic-style font, and dragon motif, makes the trade dress created by United Brands

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inherently distinctive (“DRAGON JOOSE Trade Dress”). Some of the elements in the DRAGON

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JOOSE Trade Dress that make it inherently distinctive include without limitation the following:

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a.

Prominent stylized graphic of a dragon surrounding the word mark JOOSE;

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The mark JOOSE in large white letters in a stylized, archaic font;

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The prominent use of a one-syllable word mark;

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The mark JOOSE is surrounded by a “shield” design as shown in the

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JOOSE and Design mark;

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and Design mark and is centered on the face of the can toward the bottom;

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The mark DRAGON JOOSE is also in a stylized font below the JOOSE

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A zig-zag line surrounds the alcohol volume content displayed at the top of

the face of the can (e.g., “9.9% ALC/VOL”) above the logo;

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Use of a 24-ounce can;

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The alcohol volume content is also displayed within a small badge or

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banner just below the mark JOOSE; and

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i.

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A distinctive purple and black color scheme.

The DRAGON JOOSE Trade Dress, including the copyrighted Dragon Design, is

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prominently featured in virtually all advertisements and promotions for the DRAGON JOOSE

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flavored malt beverage. The DRAGON JOOSE Trade Dress is used uniformly and consistently

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in every product and promotion in commerce in connection with United Brands’ DRAGON

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JOOSE flavored malt beverage product.

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In addition to the trademark rights in the JOOSE Marks (defined below), United

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Brands also owns copyrights in the images and appearance of its Dragon Design. United Brands

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currently owns federal copyright registration numbers VA 1-737-466 and VA 1-736-747 for its

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Dragon Design, attached as Exhibits A-1 and A-2.

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Since the launch of the original JOOSE flavored malt beverage in 2006 and the

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DRAGON JOOSE product in 2007, and prior to the acts of Defendant described herein, United

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Brands has continuously used the marks JOOSE, JOOSE and Design, the DRAGON JOOSE

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Trade Dress, the Dragon Design and DRAGON JOOSE and Design in interstate commerce in

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connection with its marketing, distribution and sales of flavored malt beverage products.

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16.

United Brands is the owner of federal trademark registrations for its JOOSE

Marks, including the following:

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Registration No. 3,263,454 for the mark JOOSE

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Registration No. 3,465,813 for the mark JOOSE and Design

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The marks JOOSE and JOOSE and Design are collectively referred to as the “JOOSE Marks”.

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Copies of the federal trademark registrations are attached as Exhibits B-1 and B-2.

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United Brands is also the owner of California state trademark registrations for its

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DRAGON JOOSE Marks, including: (1) JOOSE; (2) JOOSE and Design; (3) DRAGON JOOSE;

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and (4) Dragon Design (“State DRAGON JOOSE Marks”). Copies of the California state

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trademark, registrations are attached as Exhibits C-1, C-2, C-3, and C-4.

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The DRAGON JOOSE Trade Dress, the Dragon Design mark, the State DRAGON

JOOSE Marks, and the JOOSE Marks together comprise the DRAGON JOOSE Marks.

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The DRAGON JOOSE Marks are inherently distinctive. In the alternative,

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because of United Brands’ exclusive and extensive use of the DRAGON JOOSE Marks, they

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have acquired considerable value and have become well known to the consuming public as

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identifying United Brands exclusively, and uniquely, as the source of products to which the

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DRAGON JOOSE Marks are applied. In this way, the DRAGON JOOSE Marks have acquired

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secondary meaning and distinctiveness.

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United Brands has spent substantial dollars in promoting its JOOSE flavored malt

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beverages, including the DRAGON JOOSE Marks, both in California and nationwide. United

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Brands’ promotional efforts include, for example, sales promotions, print media, on-line articles,

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internet advertising, point-of-sale materials, contests, specialty items and attendance at trade

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shows. The DRAGON JOOSE Marks are prominently featured in advertisements and promotions

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for the DRAGON JOOSE flavored malt beverages and are prominently displayed on United

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Brands’ specialty items. United Brands’ line of JOOSE flavored malt beverages has been

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tremendously successful, with sales of flavored malt beverages totaling over $160,000,000

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dollars.

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United Brands’ line of JOOSE flavored malt beverages is sold in 47 states,

including California.

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United Brands, its distributors and retailers have continuously and exclusively

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used the DRAGON JOOSE Marks to distinguish themselves as the source of goods and services

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in connection with the DRAGON JOOSE Marks.

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As a result of United Brands’ substantial use and promotion of the flavored malt

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beverages bearing the DRAGON JOOSE Marks, the DRAGON JOOSE Marks have become

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famous. The JOOSE Marks have acquired great value as identifiers of United Brands’ products

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and serve to distinguish United Brands’ JOOSE flavored malt beverages from those of others.

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Customers in this Judicial District and elsewhere readily recognize United Brands’ JOOSE Marks

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as distinctive designations of the origin of United Brands’ JOOSE flavored malt beverage. The

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JOOSE Marks are assets of enormous value as symbols of United Brands and its quality products

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and goodwill. The success of the JOOSE flavored malt beverages has made United Brands the

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second largest seller of flavored malt beverages in the United States.

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United Brands has never authorized or consented to any use by Defendant of the

DRAGON JOOSE Marks.

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B.

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Defendant’s Infringement of United Brands’ DRAGON JOOSE Marks
United Brands is informed and believes, and on that basis alleges, that Defendant

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is engaged in the business of producing, selling and/or distributing malt beverages, including

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flavored malt beverages (hereinafter “Defendant’s Products”), in this Judicial District and

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elsewhere.

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United Brands is informed and believes, and on that basis alleges, that in or about

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August 2005 Defendant began marketing an alcoholic, malt-based flavored beverage, under the

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mark TILT. The TILT product came in two flavors and was sold in 16 ounce silver cans which

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featured a stylized letter “T” which was tilted to the left, as shown below.

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United Brands is informed and believes, and on that basis alleges, that for

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approximately five years since launch, Defendant sold the TILT product using such silver cans

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with the tilted “T”. Defendant then changed its packaging and design for the TILT product.

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This new can featured a radically different look and design, as shown below. The new
can was also sold in a 16 ounce size, only.

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United Brands is informed and believes, and on that basis alleges, that on or about

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July 2010, Defendant began selling Defendant’s Products in the new, radically different looking

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can, and also for the first time, in a 24 ounce size. United Brands is further informed and

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believes, and on that basis alleges, that Defendant has introduced several new TILT colors and

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cans using the same look and design as shown below.
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In particular, the new TILT designs and colors are substantially similar to United

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Brands’ JOOSE products – which have always been sold only in a 24 ounce can – including

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DRAGON JOOSE, as shown below.

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In this way, Defendant’s product packaging has become increasingly similar to

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that of United Brands. United Brands is further informed and believes, and on that basis alleges,

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that Defendant willfully and intentionally infringed its DRAGON JOOSE Marks by directly

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copying elements of the DRAGON JOOSE Marks and cans, in order to cause confusion among

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distributors, retailers and consumers and trade upon the goodwill created by United Brands in its

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DRAGON JOOSE Marks and products.

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Notably, the New TILT Design shares many similarities with the DRAGON

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JOOSE Marks, both in overall appearance and in individual features. Among other similar

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features:

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(i) the TILT cans feature a stylized depiction of two dragons that surround the

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trademark, just as the DRAGON JOOSE and Design mark and can prominently feature a dragon

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surrounding the JOOSE and Design mark;

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(ii) the word mark TILT utilizes a stylized archaic font similar to the one used for
the DRAGON JOOSE Marks, and that is different from the streamlined font previously used;

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(iii) the word mark TILT is in white as is the mark JOOSE in white, and it is in a

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stylized font similar to the font used on the JOOSE cans for the mark JOOSE and for the

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particular product name (e.g., DRAGON JOOSE) and centered on the face of the can toward the

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bottom;

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(iv) Defendant’s cans have a large letter “T” in a stylized font that resembles the
“J” in “JOOSE”;

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(v) there is a crown-like graphic above the “T” that is similar to the crown-like
shield design in the center of the JOOSE can, in which the mark JOOSE is displayed;

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(vi) the new TILT cans use a similar color scheme consisting of a black

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background with colored elements in the design features of the can, which the DRAGON JOOSE

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products also employ; and

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(vii) the new TILT cans are 24 ounce cans (together, “New TILT Design”).
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In addition, the cans share other similarities such as on the TILT cans there is a

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description of the product in plain font on the bottom of the face of the can, just as there is on the

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DRAGON JOOSE cans, and the alcohol volume content of the TILT cans is displayed at the top

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of the face of the can in the same manner as the DRAGON JOOSE cans (e.g., “12% ALC/VOL”)

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within a badge or banner that has a zig-zag line, similar to how the alcohol content appears on the

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DRAGON JOOSE cans.

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33.

These similarities are further exacerbated when Defendant’s TILT cans are

situated adjacent to United Brands’ JOOSE cans, which often happens at the retail stores. These
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similarities are even more noticeable when Defendant’s TILT cans are situated in refrigerators

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and coolers that are decorated with JOOSE labels, display ads and other marketing and

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promotional materials, and when Defendant’s TILT cans are placed in facings in those

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refrigerators that are labeled for JOOSE.

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Notably, these new cans bearing the New TILT Design do not feature any tilting

“T” like the original TILT cans, nor any tilting object or design.

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United Brands is informed and believes, and on that basis alleges, that Defendant

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markets, distributes and sells its TILT beverage products to the same consumers and distributors,

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and in the same sales channels and retail stores, as United Brands. The parties’ products

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described herein are directly competitive products.

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C.

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Defendant’s Unlawful Moving and Removal of JOOSE Products
In addition to the foregoing conduct by Defendant, United Brands is further

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informed and believes, and on that basis alleges, that Defendant, either directly or through its

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agent distributors or both, has moved or removed, and continues to move or remove, United

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Brands’ JOOSE products where they are set for display and sale in various retail establishments

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located in California.

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United Brands is informed and believes, and on that basis alleges, that since

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approximately June 2010, Defendant has been moving or removing JOOSE products from store

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shelves in various 7-Eleven, AM/PM, Chevron, and Shell stores, as well as independent liquor

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stores located in San Diego, Orange, Los Angeles, Riverside, and San Bernardino counties, as

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well as similar retail establishments in Northern California. Defendant’s conduct remains

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ongoing, pervasive, and continuous.

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By way of specific example, since approximately March 2010, Granada Liquor—

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an independent liquor store located in San Diego, California—has stocked two refrigerated

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shelves entirely with JOOSE. Each shelf contains nine columns of JOOSE cans, each such

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column known in the industry as a “facing.” Such facings, as is generally the case with Granada

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Liquor’s, typically also include the point of sale advertising for the product that they contain.

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39.

On information and belief, on or about October 18, 2010, a sales representative for

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Defendant “cut” and removed JOOSE from four of those facings, replacing the JOOSE cans with

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Defendant’s TILT product. The four facings then containing TILT were the four closest to the

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refrigerator’s door handle and close to eye level. Thus, they were in the best product position for

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that particular refrigerator. Defendant’s sales representative cut the JOOSE product, replacing it

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with TILT, without authorization from Granada Liquor’s owner.

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After discovering that the four JOOSE facings had been cut and replaced with

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TILT, the TILT cans were moved to shelves that had been designated by Granada Liquor’s owner

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for Defendant’s products and JOOSE cans were put back into the four facings designated for

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JOOSE.

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Upon information and belief, however, on or about November 2, 2010,

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Defendant’s sales representative again cut and replaced the four JOOSE facings nearest the door

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handle and close to eye level with TILT cans. Again, these actions were taken without

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authorization by Granada Liquor’s owner.

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Similarly, in or about June 2010 in Bakersfield, California, United Brands

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discovered that its JOOSE product had been taken off of the shelves of a retailer there. United

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Brands was informed by the store owner that he believed Defendant’s distributor had removed the

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JOOSE cans. Though the JOOSE cans were replaced with TILT cans, the JOOSE point of sale

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advertising had been left on the shelves. Upon information and belief, this and similar conduct

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contributes to the consumer confusion caused by Defendant’s wrongful copying of the JOOSE

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trade dress and copyrighted matter.

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In or about June 2010, United Brands discovered that the owner of Sunshine

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Liquor—located in Pasadena, California—had been misinformed by Defendant’s distributor that

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JOOSE was going out of business, convincing the store owner that the JOOSE product should be

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removed and replaced with TILT. Although the JOOSE cans were replaced with TILT, the

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JOOSE point of sale advertising remained on the shelves then containing TILT, thereby

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contributing to consumer confusion as to the source of the TILT product.

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44.

In or about June 2011, United Brands similarly discovered that its JOOSE product

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had been removed and replaced with TILT at Northridge Liquor in Northridge California. Again,

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the JOOSE point of sale advertising remained on the shelves then containing TILT. According to

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the store manager, a representative of Defendant had replaced the JOOSE product with TILT

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without the store manager’s knowledge.

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Defendant’s conduct in removing and replacing JOOSE with TILT in various retail

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establishments in Orange County has been so widespread and pervasive that one of United

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Brands’ distributors for that county will no longer carry JOOSE because of the extra efforts it

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must undertake to restock the facings designated for JOOSE.

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Defendant’s conduct has not been limited to California. For example, United

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Brands is informed and believes, and on that basis alleges, that Defendant has engaged, and

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continues to engage, in similar conduct in Maricopa County and Pima County, Arizona.

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By way of specific examples, in or about August 2011, Defendant’s distributor

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agents removed four brands of JOOSE from the shelves of the Maricopa Shell station located on

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John Wayne Parkway, Maricopa, Arizona, and replaced those brands with four brands of TILT.

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Similarly, in or about August 2011, Defendant’s distributor agents removed United Brands’ TILT

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product from two different 7-Elevens located on Speedway Boulevard in Tucson, Arizona. Upon

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information and belief, Defendant’s agents were not authorized to remove United Brands’

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products at any of these locations.

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48.

In either moving or removing JOOSE products, Defendant’s conduct violates the

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California Alcoholic Beverage Control Act, Federal Alcohol Administration Act, and related state

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and federal regulations.

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D.

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49.

Effect of Defendant’s Activities on United Brands and the Consuming Public
Defendant’s unauthorized use of the New TILT Design falsely indicates to the

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purchasing public that Defendant, its business, and/or its products, originate with United Brands,

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or are affiliated, connected or associated with United Brands, or are sponsored, endorsed or

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approved by United Brands, or are in some manner related to United Brands and its products.

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50.

Defendant’s unauthorized use of the New TILT Design is likely to cause

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confusion, to cause mistake, or to deceive customers and potential customers of the parties, at

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least as to the affiliation, connection or association of Defendant with United Brands, or as to the

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origin, sponsorship, or approval of Defendant’s products and commercial activities by United

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Brands.

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51.

Defendant’s unauthorized use of the New TILT Design falsely designates the

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origin of Defendant’s products. Defendant’s unauthorized use of the New TILT Design enables it

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to trade on and receive the benefit of goodwill built up at a great effort and expense over many

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years by United Brands, and to gain acceptance for its business and products not solely on their

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own merits, but on the reputation and goodwill of United Brands and its products.

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52.

Defendant has been and will continue to be unjustly enriched at United Brands’

expense by its unauthorized use of the New TILT Design.

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53.

Defendant’s unauthorized use of the New TILT Design in the manner described

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deprives United Brands of the ability to control the nature and quality of products provided under

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the JOOSE Marks, and places the valuable reputation and goodwill of United Brands in the hands

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of Defendant, over which United Brands has no control.

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54.

Unless restrained by this Court, these acts of Defendant will continue, and will

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continue to cause irreparable injury to United Brands and to the public, for which there is no

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adequate remedy at law.

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55.

United Brands is informed and believes, and on that basis alleges, that without

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permission or authority from United Brands, Defendant has infringed United Brands’ DRAGON

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JOOSE Marks in interstate commerce by producing and marketing Defendant’s Products bearing

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the New TILT Design.

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United Brands is informed and believes, and on that basis alleges, that Defendant’s

25

unauthorized use of the New TILT Design is intended to trade upon the goodwill and substantial

26

recognition associated with United Brands’ DRAGON JOOSE and JOOSE flavored malt

27

beverages.

28

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57.

United Brands is informed and believes, and on that basis alleges, that Defendant

2

is using the New TILT Design in an attempt to associate its products with United Brands or

3

otherwise trade upon United Brands’ reputation.

4
5
6

58.

United Brands is informed and believes, and on that basis alleges, that Defendant’s

use of the New TILT Design is designed to cause confusion, mistake or deception.
59.

By virtue of the acts complained of herein, Defendant has created a likelihood of

7

injury to United Brands’ business reputation, caused a strong likelihood of consumer confusion as

8

to the source of origin or relationship of United Brands’ and Defendant’s goods, diluted United

9

Brands’ famous DRAGON JOOSE Marks, and has otherwise competed unfairly with United

10
11
12
13

Brands.
60.

United Brands is informed and believes, and on that basis alleges, that Defendant’s

acts complained of herein are willful and deliberate.
61.

Defendant’s acts complained of herein have caused damage to United Brands in an

14

amount to be determined at trial, and such damages will continue to increase unless Defendant is

15

enjoined from its wrongful actions.

16

62.

Defendant’s acts complained of herein have caused United Brands to suffer

17

irreparable injury to its business. United Brands will suffer substantial loss of goodwill and

18

reputation unless and until Defendant is preliminarily and permanently enjoined from the

19

wrongful actions complained of herein.

20

FIRST CLAIM FOR RELIEF

21

(Trade Dress Infringement and False Designation of Origin

22

Under 15 U.S.C. § 1125(a))

23
24
25

63.

United Brands repeats, realleges, and incorporates by reference the allegations set

forth in Paragraphs 1 through 62 as though fully set forth herein.
64.

United Brands’ use on its DRAGON JOOSE product of the distinct color schemes,

26

stylized, archaic-style font, and dragon motif, makes the DRAGON JOOSE trade dress created by

27

United Brands inherently distinctive. Some of the non-functional elements in the DRAGON

28

JOOSE Trade Dress that make it inherently distinctive include without limitation the following:
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a.

Prominent stylized graphic of a dragon surrounding the word mark JOOSE;

2

b.

The mark JOOSE in large white letters in a stylized, archaic font;

3

c.

The prominent use of a one-syllable word mark;

4

d.

The mark JOOSE is surrounded by a “shield” design as shown in the

5

JOOSE and Design mark;

6
7

e.

The mark DRAGON JOOSE is also in a stylized font below the JOOSE

and Design mark and is centered on the face of the can toward the bottom;

8

f.

Use of a 24-ounce can;

9

g.

A zig-zag line surrounds the alcohol volume content displayed at the top of

10

the face of the can (e.g., “9.9% ALC/VOL”) above the logo;

11
12

h.

banner just below the mark JOOSE; and

13
14

The alcohol volume content is also displayed within a small badge or

i.
65.

A distinctive purple and black color scheme.

United Brands has used in interstate commerce an inherently distinctive product

15

packaging in connection with the sale and marketing of DRAGON JOOSE brand flavored malt

16

beverage.

17
18
19

66.

Consumers recognize United Brands’ DRAGON JOOSE product by its

packaging, which has remained substantially the same since the product was launched.
67.

Defendant’s use of trade dress that infringes specifically on the DRAGON JOOSE

20

Trade Dress has confused and is likely to continue to cause confusion or to cause mistake, or to

21

deceive the consuming public into believing that Defendant’s goods are authorized, sponsored,

22

affiliated with or approved by United Brands. These acts constitute trade dress infringement of

23

the DRAGON JOOSE Trade Dress in violation of 15 U.S.C. § 1125(a).

24

68.

Defendant created a false designation of origin by using in commerce, without

25

United Brands’ permission, the New TILT Design in connection with the advertisement, offering

26

for sale and/or sale of Defendant’s Products. United Brands is informed and believes, and on that

27

basis alleges that Defendant did so with the intent to trade upon United Brands’ reputation and

28

goodwill by causing confusion and mistake among customers and the public, and to deceive the
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public into believing that Defendant’s products are associated with, sponsored by or approved by

2

United Brands, when they are not. These acts constitute false designation of origin in violation of

3

15 U.S.C. § 1125(a).

4

69.

United Brands is informed and believes, and on that basis alleges, that Defendant

5

had actual knowledge of United Brands’ ownership and prior use of its DRAGON JOOSE Marks,

6

and without the consent of United Brands, has willfully violated 15 U.S.C. § 1125(a).

7
8

70.

Defendant’s aforementioned acts have injured United Brands and damaged United

Brands in an amount to be determined at trial.

9

71.

By its actions, Defendant has irreparably injured United Brands. Such irreparable

10

injury will continue unless Defendant is preliminarily and permanently enjoined by this Court

11

from further violation of United Brands’ rights, for which United Brands has no adequate remedy

12

at law.

13

SECOND CLAIM FOR RELIEF

14

(Trademark Infringement Under 15 U.S.C. § 1125(a))

15
16

72.

United Brands hereby repeats, realleges, and incorporates by reference Paragraphs

1 through 71 as though fully set forth herein.

17

73.

Defendant has used a symbol and device, to wit, a dragon design trademark in

18

commerce that is identical to and/or confusingly similar to United Brands’ Dragon Design Mark,

19

without United Brands’ permission (see images of United Brands’ DRAGON JOOSE can and

20

Defendant’s new cans, above).

21

74.

Defendant has infringed United Brands’ Dragon Design Mark by using United

22

Brands’ Dragon Design Mark and/or confusingly similar marks in connection with the

23

manufacturing, distributing, selling and/or promoting of Defendant’s Products without the

24

permission of United Brands.

25

75.

United Brands is informed and believes, and on that basis alleges, that Defendant’s

26

acts are designed to trade upon United Brands’ reputation and goodwill by causing confusion and

27

mistake among customers and the public, and to deceive the public into believing that

28

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Defendant’s Products are associated with, sponsored by or approved by United Brands, when they

2

are not.

3

76.

United Brands is informed and believes, and on that basis alleges, that Defendant

4

had actual knowledge of United Brands’ ownership and prior use of United Brands’ Dragon

5

Design Mark.

6

77.

By virtue of the acts complained of herein, United Brands is informed and

7

believes, and on that basis alleges, that Defendant has intentionally infringed United Brands’

8

Dragon Design Mark and caused a likelihood of confusion among the consuming public, thereby

9

committing common law trademark infringement.

10

78.

Defendant’s aforementioned acts have injured United Brands and damaged United

11

Brands in an amount to be determined at trial. By its actions, Defendant has irreparably injured

12

United Brands. Such irreparable injury will continue unless Defendant is preliminarily and

13

permanently enjoined by this Court from further violation of United Brands’ rights, for which

14

United Brands has no adequate remedy at law.

15

THIRD CLAIM FOR RELIEF

16

(Federal Dilution Under 15 U.S.C. § 1125(c))

17
18

79.

United Brands repeats, realleges, and incorporates by reference the allegations set

forth in Paragraphs 1 through 78 as though fully set forth herein.

19

80.

DRAGON JOOSE is the most popular and recognized of United Brands’ JOOSE

20

line of products. Since its launch in 2007, DRAGON JOOSE has comprised a significant

21

percentage of sales of all of the JOOSE line of products.

22
23

81.

the acts of Defendant complained of herein.

24
25

United Brands’ DRAGON JOOSE Marks are famous, and became famous prior to

82.

United Brands JOOSE products and DRAGON JOOSE Marks have appeared in

several on-line and print magazines and newspapers.

26

83.

United Brands products are sold under its DRAGON JOOSE Marks in 47 states.

27

United Brands advertises its products as explained above in each of those states.

28

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2

84.

public on a nation-wide basis as originating from one source.

3
4

Products sold under its DRAGON JOOSE Marks are recognized by the consuming

85.

United Brands owns registrations for both its JOOSE and JOOSE and Design

86.

Defendant’s unauthorized commercial use of the DRAGON JOOSE Marks in

marks.

5
6

connection with the advertisement, offering for sale and/or sale of Defendant’s Products has

7

caused and is likely to continue to cause dilution of the distinctive quality of the famous

8

DRAGON JOOSE Marks.

9

87.

Defendant’s aforementioned acts are likely to tarnish, injure, or trade upon United

10

Brands’ business, reputation or goodwill, and to deprive United Brands of the ability to control its

11

DRAGON JOOSE Marks.

12
13

88.

Defendant’s aforementioned acts have injured United Brands and damaged United

Brands in an amount to be determined at trial.

14

89.

By its actions, Defendant has irreparably injured United Brands. Such irreparable

15

injury will continue unless Defendant is preliminarily and permanently enjoined by this Court

16

from further violation of United Brands’ rights, for which United Brands has no adequate remedy

17

at law.

18

FOURTH CLAIM FOR RELIEF

19

(Copyright Infringement Under 17 U.S.C. § 101 and 501)

20
21

90.

United Brands repeats, realleges, and incorporates by reference the allegations set

forth in Paragraphs 1 through 89 as though fully set forth herein.

22

91.

The New TILT Design prominently displays a dragon design that surrounds the

23

name of the beverage and comprises the vast majority of the front side of the product can. In this

24

way, the New TILT Design is substantially similar to the Dragon Design and Dragon Design with

25

Logo Copyrights (collectively, “Dragon Design Copyrights”) used on United Brands’ DRAGON

26

JOOSE product cans which also prominently feature a dragon design that surrounds the name of

27

the beverage, comprising the vast majority of the front side of the product can.

28

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92.

The specific designs that are the subject of the Dragon Design Copyrights are

2

artistically unique, with the head of the dragon at the top of the name of the beverage. The

3

dragon design is the entirety of the Dragon Design copyright, and is the principle part of the

4

Dragon Design with Logo copyright.

5
6

93.

As the DRAGON JOOSE product has been available to consumers since 2007,

Defendant has had access to the Dragon Design Copyrights.

7

94.

8

Design Copyrights.

9

95.

10
11

The New TILT Design looks substantially similar to United Brands’ Dragon

The New TILT Design is a substantial copy of the whole of the Dragon Design

copyright, and a material part of the Dragon Design and Logo copyright.
96.

By its actions alleged above, Defendant has infringed and/or will continue to

12

infringe the Dragon Design Copyrights within the meaning of 17 U.S.C. § 501 by its copying,

13

distribution, creation of derivative works from, and/or publicly display of the new TILT product

14

cans featuring the New TILT Design on the product packaging and advertising.

15
16
17

97.

Such infringement is willful in that Defendant knew or should have known that

their actions alleged above would infringe the Dragon Design.
98.

United Brands will continue to sustain damage as a result of Defendant’s

18

infringing acts. Defendant’s wrongful conduct has also deprived and will continue to deprive

19

United Brands of opportunities for expanding its sales and goodwill.

20

99.

Pursuant to 17 U.S.C. § 502, United Brands is entitled to an injunction restraining

21

Defendant, its officers, agents, employees, and all persons acting in concert with Defendant, and

22

each of them, from copying, distributing, creating derivative works

23

from, and/or publicly displaying TILT product cans featuring the New TILT Design on the

24

product, packaging and advertising, in violation of the copyright laws.

25

100.

Furthermore, pursuant to 17 U.S.C. § 504, United Brands is entitled to recover

26

from Defendant the damages United Brands has sustained and will sustain, and all profits, gains

27

and advantages derived by Defendant as a result of Defendant’s infringement of the Dragon

28

Design Copyrights, in amount to be proven at trial.
19

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101.

By its actions, Defendant has irreparably injured United Brands. Such irreparable

2

injury will continue unless Defendant is preliminarily and permanently enjoined by this Court

3

from further violation of United Brands’ rights, for which United Brands has no adequate remedy

4

at law.

5

FIFTH CLAIM FOR RELIEF

6

(California Statutory Dilution Under

7

Business & Professions Code § 14245, et seq.)

8
9
10
11
12

102.

United Brands repeats, realleges, and incorporates by reference the allegations set

forth in Paragraphs 1 through 101 as though fully set forth herein.
103.

This is an action for trademark dilution arising under California Business &

Professions Code § 14247.
104.

United Brands’ DRAGON JOOSE Marks are distinctive. The JOOSE and Design

13

mark and the Dragon Design mark are inherently distinctive. The JOOSE mark has acquired

14

distinctiveness through United Brands’ marketing and promotion efforts in California.

15
16
17

105.

United Brands’ line of JOOSE flavored malt beverages has been tremendously

successful both nationally and in California.
106.

DRAGON JOOSE is the most popular and recognized of United Brands’ JOOSE

18

line of products. Since its launch in 2007, DRAGON JOOSE has comprised a significant

19

percentage of sales of all of the JOOSE line of products.

20
21
22
23
24

107.

United Brands JOOSE products and DRAGON JOOSE Marks have appeared in

several on-line and print magazines and newspapers.
108.

United Brands products are sold under its DRAGON JOOSE Marks in 47 states.

United Brands advertises its products as explained above in each of those states.
109.

As a result of United Brands’ substantial use and promotion of the flavored malt

25

beverages bearing the DRAGON JOOSE Marks, the DRAGON JOOSE Marks have become

26

famous, and became famous prior to the acts of Defendant complained of herein. The JOOSE

27

Marks have acquired great value as identifiers of United Brands’ products and serve to

28

distinguish United Brands’ JOOSE flavored malt beverages from those of others. Customers in
20

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this Judicial District and elsewhere in California readily recognize United Brands’ JOOSE Marks

2

as distinctive designations of the origin of United Brands’ JOOSE flavored malt beverage.

3

110.

Defendant’s unauthorized commercial use of the New TILT Design in connection

4

with the advertisement, offering for sale and/or sale of Defendant’s Products, has caused and is

5

likely to continue to cause dilution of the distinctive quality of the famous DRAGON JOOSE

6

Marks.

7

111.

Defendant’s aforementioned acts are likely to tarnish, injure or trade upon United

8

Brands’ business, reputation or goodwill, and to deprive United Brands of the ability to control its

9

DRAGON JOOSE Marks.

10

112.

United Brands is informed and believes, and on that basis alleges, that Defendant

11

had actual knowledge of United Brands’ ownership and prior use of United Brands’ federally

12

registered JOOSE Marks, and without the consent of United Brands, has willfully violated

13

California Business and Professions Code § 14247.

14
15

113.

Defendant’s aforementioned acts have injured United Brands and damaged United

Brands in an amount to be determined at trial.

16

114.

By its actions, Defendant has irreparably injured United Brands. Such irreparable

17

injury will continue unless Defendant is preliminarily and permanently enjoined by this Court

18

from further violation of United Brands’ rights, for which United Brands has no adequate remedy

19

at law.

20
21

115.

Pursuant to California Business & Professions Code § 14247 et seq., United

Brands is entitled to injunctive relief throughout the State of California.

22

116.

Pursuant to California Business & Professions Code § 14247 et seq., Defendant

23

may be required to pay to United Brands up to three times its profits from, and up to three times

24

all damages suffered by reason of, the wrongful manufacture, use, display or sale of its New TILT

25

Design.

26

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27

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28

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SIXTH CLAIM FOR RELIEF

2

(California Statutory Trademark Infringement Under

3

Business & Professions Code § 14245)

4
5
6
7
8
9
10

117.

United Brands hereby repeats, realleges, and incorporates by reference Paragraphs

1 through 116 as though fully set forth herein.
118.

United Brands is the owner of the California state trademark registrations for the

State DRAGON JOOSE Marks listed above.
119.

This is an action for trademark infringement arising under California Business &

Professions Code § 14245.
120.

Defendant has used in commerce, without permission of United Brands,

11

trademarks, including product packaging, that is identical to and/or confusingly similar to United

12

Brands’ California State DRAGON JOOSE Marks. Defendant has infringed United Brands’

13

California State DRAGON JOOSE Marks and created a false designation of origin by using

14

United Brands’ DRAGON JOOSE Marks and/or confusingly similar marks in connection with

15

the manufacturing, distributing, selling and/or promoting of Defendant’s Products without the

16

permission of United Brands. United Brands is informed and believes, and on that basis alleges,

17

that Defendant’s acts are designed to trade upon United Brands’ reputation and goodwill by

18

causing confusion and mistake among customers and the public, and to deceive the public into

19

believing that Defendant’s Products are associated with, sponsored by or approved by United

20

Brands, when they are not.

21

121.

United Brands is informed and believes, and on that basis alleges, that Defendant

22

had actual knowledge of United Brands’ ownership and prior use of United Brands’ federally and

23

state registered JOOSE Marks, and without the consent of United Brands, has willfully violated

24

California Business and Professions Code § 14245.

25
26
27
28
DLA P IPER LLP (US)

122.

Defendant’s aforementioned acts have injured United Brands and damaged United

Brands in an amount to be determined at trial.
123.

By its actions, Defendant has irreparably injured United Brands. Such irreparable

injury will continue unless Defendant is preliminarily and permanently enjoined by this Court
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from further violation of United Brands’ rights, for which United Brands has no adequate remedy

2

at law.

3
4
5

124.

Pursuant to California Business & Professions Code § 14247 et seq., United

Brands is entitled to injunctive relief throughout the State of California.
125.

Pursuant to California Business & Professions Code § 14247 et seq., Defendant

6

may be required to pay to United Brands up to three times its profits from, and up to three times

7

all damages suffered by reason of, the wrongful manufacture, use, display or sale of its TILT

8

products.

9

SEVENTH CLAIM FOR RELIEF

10

(California Statutory Unfair Competition Under

11

Business & Professions Code § 17200)

12
13
14
15
16

126.

United Brands repeats, realleges, and incorporates by reference the allegations set

forth in Paragraphs 1 through 125 as though fully set forth herein.
127.

This is an action for unfair competition arising under California Business &

Professions Code § 17200 et seq.
128.

United Brands is informed and believes, and on that basis alleges, that by adopting

17

product packaging that resembles and infringes the DRAGON JOOSE Marks, Defendant’s

18

unlawful conduct has deceived or is likely to deceive purchasers into believing that Defendant’s

19

TILT product and United Brands’ JOOSE product are related, and/or that Defendant’s TILT

20

product is affiliated with, associated with, and/or sold by United Brands. United Brands is

21

informed and believes, and on that basis alleges, that Defendant has intentionally caused a

22

likelihood of confusion among the purchasing public in this Judicial District and elsewhere,

23

thereby unfairly competing with United Brands in violation of California Business & Professions

24

Code § 17200 et seq.

25

129.

Further, as alleged in more specific detail above and as a separate basis for

26

liability, United Brands is informed and believes, and on that basis alleges, that Defendant has

27

unlawfully, unfairly, and fraudulently moved or removed JOOSE products to the detriment of

28

United Brands and to the benefit of Defendant, in violation of the California Alcoholic Beverage
23

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Control Act, Federal Alcohol Administration Act, and related state and federal regulations.

2

Defendant has thus engaged in unfair competition and an unlawful and/or unfair business practice

3

in violation of Sections 17200 et seq. of the California Business and Professions Code.

4

130.

Defendant’s aforesaid actions constitute unlawful, unfair, malicious or fraudulent

5

practices. As a result of Defendant’s acts of unfair competition, United Brands has been injured

6

and lost money or property in an amount to be determined at trial.

7

131.

Further, by these actions, Defendant has irreparably injured United Brands. Such

8

irreparable injury will continue unless Defendant is preliminarily and permanently enjoined by

9

this Court from further violation of United Brands’ rights, for which United Brands has no

10

adequate remedy at law.

11

EIGHTH CLAIM FOR RELIEF

12

(California Common Law Trademark Infringement)

13
14
15

132.

United Brands hereby repeats, realleges, and incorporates by reference Paragraphs

1 through 131 as though fully set forth herein.
133.

Defendant has used in commerce, without permission of United Brands,

16

trademarks, including product packaging, that is identical to and/or confusingly similar to United

17

Brands’ DRAGON JOOSE Marks.

18

134.

United Brands is informed and believes, and on that basis alleges, that Defendant’s

19

acts are designed to trade upon United Brands’ reputation and goodwill by causing confusion and

20

mistake among customers and the public, and to deceive the public into believing that

21

Defendant’s Products are associated with, sponsored by or approved by United Brands, when they

22

are not.

23

135.

United Brands is informed and believes, and on that basis alleges, that Defendant

24

had actual knowledge of United Brands’ ownership and prior use of United Brands’ DRAGON

25

JOOSE Marks.

26

136.

By virtue of the acts complained of herein, Defendant has intentionally infringed

27

United Brands’ DRAGON JOOSE Marks and caused a likelihood of confusion among the

28

consuming public, thereby committing California state common law trademark infringement.
24

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137.

Defendant’s aforementioned acts have been fraudulent, oppressive and malicious,

2

and have injured United Brands and damaged United Brands in an amount to be determined at

3

trial.

4

138.

By its actions, Defendant has irreparably injured United Brands. Such irreparable

5

injury will continue unless Defendant is preliminarily and permanently enjoined by this Court

6

from further violation of United Brands’ rights, for which United Brands has no adequate remedy

7

at law.

8

NINTH CLAIM FOR RELIEF

9

(California Common Law Unfair Competition)

10
11

139.

United Brands repeats, realleges, and incorporates by reference the allegations set

forth in Paragraphs 1 through 138 as though fully set forth herein.

12

140.

United Brands is informed and believes, and on that basis alleges, that by adopting

13

product packaging that resembles and infringes the trademark, trade dress, and copyrights of

14

United Brands, Defendant’s unlawful conduct has deceived or is likely to deceive purchasers into

15

believing that Defendant’s TILT product and United Brands’ JOOSE product are related, and/or

16

that Defendant’s TILT product is affiliated with, associated with, and/or sold by United Brands.

17

By deceiving the purchasing public as to the source of origin of its TILT product, Defendant

18

unfairly competes against United Brands in violation of California common law.

19

141.

By its actions, Defendant has irreparably injured United Brands. Such irreparable

20

injury will continue unless Defendant is preliminarily and permanently enjoined by this Court

21

from further violation of United Brands’ rights, for which United Brands has no adequate remedy

22

at law.

23

142.

Defendant’s willful acts of unfair competition under the common law of the State

24

of California constitute fraud, oppression and malice. Accordingly, United Brands is entitled to

25

exemplary damages pursuant to California Civil Code § 3294(a).

26

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27

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28

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PRAYER FOR RELIEF

2

WHEREFORE, United Brands prays for relief as follows:

3

1.

4

That Defendant be adjudged to have infringed United Brands’ DRAGON JOOSE

and DRAGON JOOSE and Design Marks, in violation of federal and California state law;

5

2.

That Defendant be adjudged to have willfully and deliberately infringed United

6

Brands’ DRAGON JOOSE and DRAGON JOOSE and Design Marks in violation of federal and

7

California state law;

8
9
10

3.

That Defendant be adjudged to have competed unfairly with United Brands and

used a false designation of origin, false or misleading description of fact, and/or false or
misleading representation of fact in violation of federal and California state law;

11

4.

That Defendant be adjudged to have willfully and deliberately competed unfairly

12

with, and used a false designation of origin, false or misleading description of fact, and/or false or

13

misleading representation of fact, in violation of federal and California state law;

14
15

5.

Marks, in violation of federal and California state law;

16
17

That Defendant be adjudged to have diluted United Brands’ DRAGON JOOSE

6.

That Defendant be adjudged to have willfully and deliberately diluted United

Brands’ DRAGON JOOSE Marks in violation of federal and California state law;

18

7.

That Defendant, its officers, agents, employees and all persons acting or claiming

19

to act on its behalf under its direction or authority, and all persons acting or claiming to act in

20

concert or in participation with it or any of them, be preliminarily and permanently enjoined and

21

restrained from infringing United Brands’ DRAGON JOOSE Marks in any manner in the sale,

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promotion, distribution, purchase, or advertising of Defendant’s products, and specifically,

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enjoined from using the New TILT Design;

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That Defendant, its officers, agents, employees and all persons acting or claiming

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to act on its behalf under its direction or authority, and all persons acting or claiming to act in

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concert or in participation with it or any of them, be permanently enjoined and restrained from

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or engaging in acts of unfair competition with United Brands relating to use of the New TILT

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Design by Defendant in any manner, in the sale, promotion, distribution, purchase or advertising

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of Defendant’s goods;

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That Defendant be required to turn over and deliver up to the Court or to a Court-

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designated party during the pendency of this action all infringing materials in its custody and

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control (including records documenting the manufacture, sale or receipt of infringing items) and

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to turn over for destruction all infringing matters and all matters used to make infringing materials

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as well as turn over and deliver any and all materials in its possession, custody or control, or that

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of its owners, officers, agents, brokers, or employees, that would, if used, or marketed or

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otherwise distributed, violate the injunctive relief granted herein, for ultimate destruction of such

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items;

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That Defendant be required to publish notice to all distributors, brokers, retailers,

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tradeshows, sellers, and other customers or others in the trade who may have seen, or heard of

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Defendant’s use of the New TILT Design, or registered for or purchased any of Defendant’s

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products which were marketed using the New TILT Design, which notice shall disclaim any

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connection with United Brands and shall advise them of the Court’s injunction order and of

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Defendant’s discontinuance from all use of the New TILT Design;

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11.

That Defendants be ordered to pay the costs of corrective advertising;

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12.

That Defendant be ordered to pay damages in the amount of their infringing profits

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and/or reasonable royalties, increased by the Court by such amount as the Court deems to be just,

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together with United Brands’ actual damages, which, according to the circumstances of this case,

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should be increased or trebled, including trebling of damages pursuant to 15 U.S.C. § 1117(b);

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That Defendant be ordered to pay damages in the amount of their infringing profits

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and/or reasonable royalties, increased by the Court by such amount as the Court deems to be just,

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together with its profits from, the wrongful manufacture, use, display or sale of its TILT products,

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and that Defendant be ordered to pay United Brands’ actual damages, which, according to the

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circumstances of this case, should be increased or trebled, including trebling of damages pursuant

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to California Business & Professions Code § 14250;
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14.

For an award of costs and reasonable attorneys’ fees; and

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For all other relief the Court deems just and proper.

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Dated: September 16, 2011

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DLA PIPER LLP (US)

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By: s/Nancy O. Dix
NANCY O. DIX (BAR NO. 129150)
[e-mail]
BRIAN L. BEHMER (BAR NO. 156978)
[e-mail]
Attorneys for Plaintiff
UNITED BRANDS COMPANY, INC.

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JURY TRIAL DEMAND
Pursuant to Rule 38(a) of the Federal Rules of Civil Procedure, Plaintiff demands a trial
by jury of all issues triable of right by a jury.

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Dated: September 16, 2011

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DLA PIPER LLP (US)

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By: s/Nancy O. Dix
NANCY O. DIX (BAR NO. 129150)
[e-mail]
BRIAN L. BEHMER (BAR NO. 156978)
[e-mail]
Attorneys for Plaintiff
UNITED BRANDS COMPANY, INC.

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