Bull Moose v. Saballus et al

Filing 1

COMPLAINT filed by Bull Moose; Jury Demand. Filing fee $ 350, receipt number 0752-6417587. (Attachments: # 1 Exhibit A)(Goggin, James)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BULL MOOSE,

)
)
Plaintiff,
)
)
v.
)
)
RONALD AND SUSAN SABALLUS,
)
d/b/a BULL MOOSE BAR AND GRILLE, )
)
Defendants.
)

Docket No. CV
Jury Trial Demanded
Injunctive Relief Requested

COMPLAINT
1.

This is an action brought by BULL MOOSE, a company selling music, movies

and video games and offering live music in stores located in Maine and New Hampshire and on
the internet, to stop Ronald and Susan Saballus, d/b/a BULL MOOSE BAR AND GRILLE
(hereinafter collectively, “Bull Moose Bar and Grille”) from attempting to take for itself the
trademark “BULL MOOSE” which has long been owned and used by BULL MOOSE. BULL
MOOSE BAR AND GRILLE has used the mark BULL MOOSE in connection with the
promotion of concerts and other live musical entertainment, and this action for declaratory relief,
damages and injunctive relief is necessary to prevent further harm as a result of the wrongful
attempt to misappropriate the trademark BULL MOOSE.
Parties
2.

The Plaintiff, Bull Moose (“Bull Moose”) is a Maine corporation with its

principal place of business in Portland, Cumberland County, Maine.
3.

The Defendants, Ronald and Susan Saballus, d/b/a Bull Moose Bar and Grille

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(“Bull Moose Bar and Grille”), are individuals residing in Plano, Kendall County, Illinois and,
upon information and belief are doing business as Bull Moose Bar and Grille.
Jurisdiction and Venue
4.

This Court has subject matter jurisdiction under 15 U.S.C. §§ 1119 and 1121

[trademark jurisdiction], 28 U.S.C. § 1331 [general federal question jurisdiction], 1338(a) and (b)
[specific federal question jurisdiction], and 1367(a) [supplemental jurisdiction] because this
action involves the federal trademark statutes.
5.

Venue is proper under 28 U.S.C. § 1391 (b)-(c) because the Defendants reside in

this District.
Background
6.

Bull Moose sells music, books, movies and video games in stores located in

Maine and New Hampshire and on the internet and offers live music events from time to time at
its stores and occasionally sponsors events for other entities.
7.

Since Bull Moose began using the trademark BULL MOOSE in connection with

promoting live music and other goods and services at least as early as 1991 it has spent
significant time and money promoting that trademark through media such as radio, print,
television and internet throughout the United States, and since 2001 to customers nationwide on
its Internet website www.bullmoose.com and on its Facebook, Twitter, YouTube and other social
media accounts. Consumers have come to know Bull Moose as a physical and online store that
sells music, movies, video games and books and frequently has live events in its retail stores.
8.

On November 7, 2007, Bull Moose was duly issued U.S. Trademark Registration

No. 3345256 for the Word Mark BULL MOOSE, a true copy of which is attached hereto as

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Exhibit A.
9.

In 2011, over 20 years after the trademark had first been used by Bull Moose, Bull

Moose Bar and Grille adopted the mark BULL MOOSE and is using it for the promotion of live
music at its venue on its Internet website, and its Facebook account. The use of the BULL
MOOSE trademark to promote live music confuses consumers about the source of those
products. Specifically, consumers will be confused about whether these products are affiliated
with Bull Moose or with Bull Moose Bar and Grille.
10.

Immediate injunctive relief is necessary because the more that Bull Moose Bar

and Grill promotes live music at its restaurant, the less that consumers will associate the BULL
MOOSE mark with Bull Moose, the trademark’s senior user and rightful owner.
11.

The likelihood of confusion resulting from Bull Moose Bar and Grille’s use of the

BULL MOOSE trademark will irreparably harm Bull Moose and will undo all of Bull Moose’s
hard work in establishing its own identity under the BULL MOOSE trademark.
COUNT I – Federal Trademark Infringement
12.

Bull Moose realleges paragraphs 1-11 as though fully set forth herein.

13.

Bull Moose owns the trademark rights in BULL MOOSE by virtue of its federal

registration of the mark.
14.

The defendants’ use of the mark BULL MOOSE in connection with its live music

performances is likely to confuse consumers about the source of the live music performances.
15.

The defendants have infringed and continues to infringe the trademark rights of

Bull Moose under the federal trademark statute, 15 U.S.C. § 1114(1)(a).
16.

The defendants’ infringement is willful.

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17.

Bull Moose has suffered and continues to suffer damages and irreparable harm as

a result of the defendants’ infringement.
18.

Bull Moose Bar and Grille’s use of the trademark BULL MOOSE is confusingly

similar to Bull Moose’s use of the trademark BULL MOOSE and the continued use by Bull
Moose Bar and Grille is likely to cause confusion, deception and mistake. Bull Moose Bar and
Grille’s use of the BULL MOOSE mark interferes with Bull Moose’s use of its mark, and any
continued use by Bull Moose Bar and Grille will seriously damage Bull Moose.
COUNT II – State Common Law Trademark Infringement
19.

Bull Moose repeats and realleges paragraphs 1-18 as though fully set forth herein.

20.

Bull Moose is the senior user of the BULL MOOSE trademark, and has the

exclusive rights to that trademark.
21.

Bull Moose Bar and Grille’s use of the mark BULL MOOSE in connection with

its is likely to confuse consumers about the source of Bull Moose Bar and Grille’s products.
22.

Bull Moose Bar and Grille has infringed and continues to infringe the trademark

rights of Bull Moose under Illinois common law by advertising and promoting its business with
the BULL MOOSE mark.
23.

Upon information and belief, Bull Moose Bar and Grille knew of Bull Moose’s

superior rights in the trademark BULL MOOSE, yet continues infringing, making Bull Moose
Bar and Grille’s infringement willful.
24.

Bull Moose has suffered and continues to suffer damages and irreparable harm as

a result of Bull Moose Bar and Grille’s infringement.

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COUNT III – Federal Unfair Competition
25.

Bull Moose repeats and realleges paragraphs 1-24 as though fully set forth herein.

26.

The confusingly similar BULL MOOSE mark as used by Defendants constitute a

false designation of origin within the meaning of 15 U.S.C. § 1125(a) which is likely to cause
confusion, mistake or deception as to the source, sponsorship and/or approval of Bull Moose’s
products, thereby causing Bull Moose to suffer damages and irreparable harm for which Bull
Moose has no adequate remedy at law.
27.

Bull Moose Bar and Grille’s use of the confusingly similar mark BULL MOOSE

confuses or deceives the public by misrepresenting that its products are sponsored, licensed or
otherwise approved by, or are in some way connected or affiliated with Bull Moose.
28.

Such conduct constitutes unfair competition with Bull Moose and is causing and,

unless enjoined, will continue to cause damages and immediate and irreparable harm for which
Bull Moose has no adequate remedy at law.
COUNT IV – State Unfair Competition
29.

Bull Moose repeats and realleges paragraphs 1-28 as though fully set forth herein.

30.

The confusingly similar BULL MOOSE mark as used by Defendants constitute a

false designation of origin and an unfair and deceptive trade practice within the meaning of the
Illinois Uniform Deceptive Trade Practices Act, 815 ILCS § 510 et seq. which is likely to cause
confusion, mistake or deception as to the source, sponsorship and/or approval of Bull Moose’s
products, thereby causing Bull Moose to suffer damages and irreparable harm for which Bull
Moose has no adequate remedy at law.
31.

Bull Moose Bar and Grille’s use of the confusingly similar mark BULL MOOSE

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confuses or deceives the public by misrepresenting that its product is sponsored, licensed or
otherwise approved by, or is in some way connected or affiliated with Bull Moose.
33.

Such conduct constitutes unfair competition with Bull Moose and is causing and,

unless enjoined, will continue to cause damages and immediate and irreparable damage for
which Bull Moose has no adequate remedy at law.
Count V – Federal Dilution
33.

Bull Moose repeats and realleges paragraphs 1-32 as though fully set forth herein.

34.

Bull Moose’s mark BULL MOOSE was distinctive and famous within the

meaning of 15 U.S.C. § 1125(c) well prior to Bull Moose Bar and Grille’s first use of the mark
BULL MOOSE.
35.

Bull Moose Bar and Grille’s use of the mark BULL MOOSE dilutes the

distinctive qualities of the BULL MOOSE trademark by blurring, has diminished the value of the
mark, and therefore constitutes trademark dilution within the meaning of 15 U.S.C. § 1125(c).
36.

Unless enjoined by this Court, Bull Moose Bar and Grille will continue to dilute

the trademark, thereby causing Bull Moose to suffer damages and immediate and irreparable
injury for which it has no adequate remedy at law.
COUNT VI – State Dilution
37.

Bull Moose repeats and realleges paragraphs 1-36 as though fully set forth herein.

38.

Bull Moose’s mark BULL MOOSE was distinctive and famous within the

meaning of section 65 of the Illinois Trademark and Registration Act, 765 ILCS §1036/65 et seq.
well prior to Bull Moose Bar and Grille’s first use of the mark BULL MOOSE.
39.

Bull Moose Bar and Grille’s use of the mark BULL MOOSE dilutes the

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distinctive qualities of the BULL MOOSE trademark by blurring, has diminished the value of the
mark, and therefore constitutes trademark dilution within the meaning of section 65 of the
Illinois Trademark and Registration Act, 765 ILCS §1036/65 et seq.
40.

Unless enjoined by this Court, Bull Moose Bar and Grille will continue to dilute

the trademark, thereby causing Bull Moose to suffer damages and immediate and irreparable
injury for which it has no adequate remedy at law.
Request for Relief
WHEREFORE, BULL MOOSE requests the following relief:
a)

The Court enter judgment for the plaintiff and against the defendants on all

b)

The Court order the defendants to pay damages and enhanced and/or trebled

counts;

damages, attorney’s fees and costs;
c)

The Court order that the defendants, its agents, officers, servants, employees,

attorneys, successors, companies, and assignees and all those in active concert or in participation
with it be preliminary and permanently enjoined and restrained from using the name and
trademark BULL MOOSE, or any other name, trademark, or slogan that gives rise to a likelihood
of confusion, mistake, or deception with respect to Bull Moose’s trademark BULL MOOSE; and
e)

The Court award to the plaintiff such other and further relief as is just and proper.
JURY DEMAND

Plaintiff demands trial by jury on all counts so triable.

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Dated: September 27, 2011

/s/ James G. Goggin
___________________________
James G. Goggin, pro hac vice pending
Attorney for Plaintiff

Verrill Dana LLP
One Portland Square
Portland, ME 04112
[phone]
[e-mail]

3505547_1

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