Long John Silvers, Inc. v. Willingham et al

Filing 1

COMPLAINT against All Defendants Filing fee $ 350, receipt number 644-1280591., filed by Long John Silvers, Inc.. (Attachments: # 1 Cover Sheet, # 2 Exhibit A. Oracle Fran Ag part 1 & 2, # 3 Exhibit B. Broadway Fran Ag part 1 & 2, # 4 Exhibit C. Guaranty Agreements, # 5 Exhibit D. Conditional Reinstatement, # 6 Exhibit E. Default Ltrs, # 7 Exhibit F. Termination Ltr, # 8 Exhibit G. Bankruptcy Desist Ordr, # 9 Exhibit H. LJS Trademarks, # 10 Summons J. Willingham, # 11 Summons P. Willingham) (JSS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
3-11-cv-472-H
CIVIL ACTION NO. ------

PLAINTIFF

LONG JOHN SILVERS, INC.
COMPLAINT

v.

JOHN WILLINGHAM and PATTI
WILLINGHAM

DEFENDANTS

Plaintiff, Long John Silver's, Inc. ("LJS") seeks damages against John Willingham and
Patti Willingham (collectively, the "Defendants") for breach of their guaranty and other
contracts, trademark infringement and unfair competition due to the reasons set forth more fully
below.
JURISDICTION
1.

This Court has original jurisdiction pursuant to 15 US.C. § 1121(a) and 28

US.C. § 1338(a) over the claims asserted under the Lanham Act, 15 US.c.

§ 1051 et seq. This

court also has supplemental jurisdiction over all related claims alleged herein pursuant to 28
US.C. § 1367(a).
2.

This Court also has jurisdiction over this matter pursuant to 28 US.C. §1332

because it involves parties of diverse citizenship and the amount in controversy is in excess of
$75,000.00, exclusive of interest and costs.
3.

Personal jurisdiction and venue over the Defendants is proper under paragraph

15.02 of the parties Franchise Agreements. True and correct copies of the Franchise Agreements
are attached as Exhibits A and B.

4.

Personal jurisdiction and venue over John Willingham also is proper under: (1) a

June 11,2010 Conditional Reinstatement Agreement ~ 8.8 and, (2) a June 2,2010 Promissory
Note p. 2, both of which state that any action to enforce their terms must be filed in the
Kentucky. Exhibit D.
5.

Personal jurisdiction over all Defendants also is proper under Kentucky's long-

arm statue (KRS § 454.210), because this action arises out of and involves the enforcement of
contracts executed in Kentucky and governed by Kentucky law, with payments and the guaranty
of such payments and obligations under such contracts to be made to LJS, a Kentucky resident,
the breach of which causes injury to LJS in Kentucky.
THE PARTIES
6.

LJS is a Delaware corporation with its principal place of business at 1441

Gardiner Lane, Louisville, Kentucky.
7.

Upon information and belief, John Willingham and Patti Willingham are

individual citizens of Tucson, Arizona and also members, owners, and/or officers in Southwest
Seafood Shoppes, LLC.
LJS'S BUSINESS
8.

LJS is engaged in the business of operating and granting to others franchise

rights to operate restaurants under the name and trademark "Long John Silvers" ("LJS
Restaurants") .
9.

LJS through the expenditure of time, skill, effort, and money has developed and

is the sole and exclusive owner of a distinctive food service system (the "LJS System") under
which food is sold to the public from LJS Restaurants.
among other things, the following elements:

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The LJS System so developed includes,

(a)

Methods and procedures for the preparation and serving of food and beverage

products;
(b)

Special ingredients, confidential recipes for food products, a secret batter mix and

distinctive service accessories;
(c)

Methods of achieving quality control and procedures designed to be advantageous

to LJS Restaurant operators and consumers;
(d)

Plans and specifications for distinctive premises, featuring characteristic interior

and exterior style, design, decor, furnishings, equipment layout and interior and exterior signage;
(e)

A uniform method of operating which is described in the "Long John Silvers

Confidential Manual of Operations" and in other communications to franchisees (collectively
referred to as "The LJS Confidential Manual");
(f)

Distinctive and characteristic trademarks, trade dress, service marks, including

without limitation "Long John Silvers" signs, designs, and emblems as LJS designates in the LJS
Confidential Manual or otherwise in writing as prescribed for use with the LJS System,
(collectively referred to as the "LJS Proprietary Marks");
(g)

A public image that each LJS Restaurant is a unit in an established restaurant

system and that all are operated with uniform standards of service and product quality and
portions; and
(h)

Such exclusive copyrights and trade secrets as have been and may from time to

time be developed, which are owned by LJS and which are disclosed to its franchisees in
confidence in connection with the construction and operation of an LJS Restaurant.
CONTRACTS BETWEEN THE PARTIES
10.

Following the termination of an April 1, 2000 LJS franchise agreement,

Southwest Seafood Shoppes, LLC ("Southwest Seafood" or "Franchisee") and LJS entered into a

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subsequent June 21,2002 agreement titled "Franchise Agreement," pursuant to which LJS
granted to Southwest Seafood the right to prepare and offer for sale LJS products and display
LJS's Proprietary Marks at a restaurant identified as #7459 and located at 4100 North Oracle
Road, Tucson, Arizona.
11.

A true and correct copy of the franchise agreement for the North Oracle

restaurant is attached as Exhibit A.
12.

Southwest Seafood and LJS also entered into separate agreements, each titled

"Franchise Agreement" and dated January 20, 2005, pursuant to which LJS granted to Southwest
Seafood the right to prepare and offer for sale LJS products and display LJS' s Proprietary Marks
at the following restaurants:
(a)

# 7555, located at 7120 East Broadway, Tucson, Arizona;

(b)

# 7606 and located at East 22nd St., Tucson, Arizona;

(c)

# 7705 and located at 3700 South Sixth Avenue, Tucson, Arizona;

(d)

# 7919 and located at 4640 West Ina Rd., Tucson, Arizona.

13.

A true and correct copy of the franchise agreement for the East Broadway

restaurant is attached as Exhibit B.
14.

The franchise agreements for the East 22nd, South Sixth, and West Ina

restaurants are identical in all pertinent respects to the East Broadway franchise agreement
attached as Exhibit B.
15.

The North Oracle, East Broadway, East 22nd, South Sixth and West Ina

restaurants will collectively be referred to as the "Restaurants" and the franchise agreements for
each will collectively be referred to as the "Franchise Agreements."

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16.

By document dated June 21,2002, defendant John Willingham personally

guaranteed the performance of all the Franchisee's duties and obligations required by the LJS
franchise agreement for the North Oracle restaurant.
17.

By separate documents, each dated January 20,2005, defendants John

Willingham and Patti Willingham (the "Guarantors") personally guaranteed the performance of
all the Franchisee's duties and obligations required by the LJS franchise agreements for the East
Broadway, East 22nd, South Sixth and West Ina restaurants.
18.

True and correct copies of the guaranty agreements for all the Restaurants are

attached as Exhibit C, and collectively, will be referred to as "Guaranty Agreements."
THE DEFENDANTS' DEFAULTS AND TERMINATION
19.

By letter dated March 31,2010, LJS notified the Franchisee that the Franchise

Agreements were terminated for its failure to cure the Notices of Default dated October 29,
2009, December 16, 2009, January 14, 2010, and February 22,2010.
20.

By agreement dated June 11,2010, as amended August 29,2010, defendants

Southwest Seafood and John Willingham entered into a Conditional Reinstatement Agreement
by which they acknowledged the Franchise Agreements, the defaults, termination, and past due
amounts per the terms of those Agreements.
21.

A true and correct copy of the Conditional Reinstatement Agreement, as

amended, is attached as Exhibit D.
22.

LJS agreed to forbear from enforcing its termination rights and provisionally

reinstate the Franchise Agreements in exchange for compliance with various Franchisee and
guarantor obligations stated in the Conditional Reinstatement Agreement. Exhibit D.

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23.

As partial consideration for the Conditional Reinstatement Agreement,

Southwest Seafood and John Willingham executed a promissory note in favor ofLJS in the
amount of$146,992.32

by document dated June 2,2010 as payment for the acknowledged past-

due amounts under the Franchise Agreements.
24.

A true and correct copy of the Promissory Note is attached as Exhibit D to the

Conditional Reinstatement Agreement.
25.

By letters dated January 27 and March 15, 2011, LJS notified Southwest

Seafood, through its control person John Willingham, that it was again in default under the
Franchise Agreements for the Restaurants because it failed to remit to LJS the required monthly
royalties and advertising fees ("Default Letters").
26.

True and correct copies of the Default Letters for the Restaurants are attached as

Exhibit E.
27.

The Franchisee failed to cure the financial defaults specified in the Default

Letters within the cure period provided for therein.
28.

By letter dated April 7, 2011, LJS notified Southwest Seafood, through its

control person, John Willingham, that the Franchise Agreements were terminated, effective
immediately ("Termination Letter").
29.

A true and correct copy of the Termination Letter for the Restaurants is attached

as Exhibit F.
30.

Pursuant to paragraph 11.02 of the Franchise Agreements attached as Exhibits A

and B, the Franchisee was required to take the following actions at the Franchisee's sole cost and
expense, including but not limited to (collectively the "Post-Termination Obligations"):

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(a)

Immediately cease doing business as LJS restaurants and discontinue the use and

display of the LJS System, the LJS Proprietary Marks;
(b)

Return to LJS the LJS Confidential Manuals; and

(c)

To promptly de-image the Restaurants from their present appearance as LJS

restaurants.
31.

In the Termination Letter, LJS further confirmed and reemphasized these Post-

Termination Obligations, and demanded that the Franchisee immediately take all such actions
with respect to the Restaurants.
32.

Termination Letter, Exhibit F.

Despite the termination of the Franchise Agreements on April 7, 2011, the

Franchisee has failed, among other obligations, to comply with all Post-Termination Obligations.
33.

Instead, the Defendants continue to use and display LJS trademarks and trade

dress or use and display confusingly similar trade dress.
34.

Further, the Franchise Agreements contain a post-termination non-compete

provision stating that:
For a period of one (I) year after the expiration or termination of this Agreement,
regardless of the cause of termination, Franchisee and its Owners shall not, except as
otherwise approved in writing by the Company, either directly or indirectly, for itself, or
through, on behalf of, or in conjunction with any person, persons, partnership or
corporation, own, maintain, engage in, or have any interest in any restaurant or business
engaged in food service, which is located within one and one-half (1 112) miles of the
Franchised Restaurant, if (1) the gross sales of seafood of the restaurant or business
constitute or are likely to constitute twenty percent (20%) or more of all sales of the
restaurant or business, or (2) the restaurant sells any battered seafood product in a quick
service or "fast food" format.
Exhibits A and B ~ 12.02(c).
35.

Upon information and belief, the Defendants own and/or operate competing

restaurants, called Overboard Seafood & Grille, at the site of some or all of the former LJS
restaurants, whose menus mainly consist of seafood and battered seafood product.

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36.

There have been numerous complaints to LJS reporting the poor quality of the

food, service, and facilities because the customers continue to believe that the Restaurants are
authorized LJS restaurants, operated by an LJS franchisee with a valid and existing franchise
agreement pursuant to the LJS System of operating standards.
37.

Further, the Franchisee also has failed and refused to pay its outstanding

indebtedness to LJS under the Franchise Agreements for past-due royalties and advertising fees
and all royalties and advertising fees incurred during the period of their continued operation of
the Restaurants using the LJS Proprietary Marks and Systems.
38.

Despite notice that the Franchisee has failed to pay the fees required by the

Franchise Agreements, the Guarantors have failed and refused to pay amounts due under the
Franchise Agreements for the Restaurants, and to comply with all Post-Termination Obligations,
including the non-compete provision of the Franchise Agreements.
39.

Additionally, Southwest Seafood and John Willingham also have failed to make

the required payments of principal and interest on the Promissory Note since September 10,
2010.
40.

Southwest Seafood filed for bankruptcy May 17, 2011. No damages or other

relief is sought against Southwest Seafood in this complaint.
41.

Visits were made to the Restaurants June 7,2011 verifying that Franchisee and

Guarantors have not fully de-imaged the Restaurants and continue to display various LJS
Proprietary Marks and trade dress on the exterior and interior of the Restaurants.
42.

Due to all of the problems with the Franchisee's and Defendants' continued

operation of the Restaurants as restaurants that are confusingly similar to LJS restaurants and

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their failure to comply with their Post-Termination Obligations, the bankruptcy court entered a
cease and desist order dated July 29, 2011.
43.

A true and correct copy of the Bankruptcy Cease and Desist Order is attached as

Exhibit G.
44.

The Bankruptcy Cease and Desist Order ordered the Franchisee to immediately

comply with all Post-Termination Obligations contained in the Franchise Agreements.
45.

Upon information and belief, despite the contractual post-termination obligations

and despite the Bankruptcy Cease and Desist Order, the Defendants continue to own and/or
operate competing seafood restaurant that use and display actual and/or confusingly similar LJS
trademarks and trade dress.

COUNT I
DECLARATORY JUDGMENT
46.

The Franchise Agreements were terminated April 7, 2011 pursuant to the terms

of the Franchise Agreements and the Default and Termination Letters.
47.

Despite the termination of the Franchise Agreements, demand by LJS to cease

and desist their unauthorized operation, and the Bankruptcy Court's Cease and Desist Order, the
Defendants have failed to comply with all Post-Termination Obligations at the Restaurants, and
continue to use and display, without permission, license, or valid franchise agreement, various
LJS Proprietary Marks and LJS' s distinctive trade dress at the Restaurants and to operate a
competing seafood restaurant concept.
48.

This action involves an actual controversy between the parties, within the scope

and meaning of28 U.S.C. § 2201-2202.
49.

Pursuant to the federal Declaratory Judgment Act (28 U.S.C. § 2201 et seq.),

LJS is entitled to a declaratory judgment by this Court that the Franchise Agreements have been

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effectively and validly terminated pursuant to the Termination Letter, due to the Franchisee's
failure to cure the notices of default according to the terms set forth in the Franchise Agreements
and the Default and Termination Letters.
50.

LJS is also entitled to a declaratory judgment by this court, pursuant to 28 §

U.S.C. 2201, that the Defendants, as the Guarantors of payment and performance of all of the
Franchisee's obligations: (1) are not authorized to continue to use and display the LJS
Proprietary Marks and trade dress at the Restaurants, (2) must comply with all terms of the
Franchise Agreements including payment of all royalties and advertising fees and complete
performance of all Post-Termination Obligations, and (3) must comply with the post-termination
non-compete provision of the Franchise Agreements.
COUNT II
(BREACH OF CONTRACT-FRANCHISE AND GUARANTY AGREEMENTS)
51.

In consideration for the license to use LJS' s Proprietary Marks and other rights

granted in the Franchise Agreements, the Franchisee agreed to make certain payments to LJS
including, without limitation, royalties and advertising fees per the Franchise Agreements,
paragraphs 6.01 and 6.02, Exhibits A and B.
52.

The Franchisee has failed to pay LJS all amounts due under the Franchise

Agreements, and to submit all the required monthly sales reports for the Restaurants while open
and operating as an LJS restaurant.
53.

Despite termination of the Franchise Agreements, the Franchisee also failed to

fully comply with its contractual Post-Termination Obligations for the Restaurants contained in
paragraph 11.02 of the Franchise Agreements, Exhibits A-B, including the non-compete
provisions. Therefore, LJS is entitled to preliminary and permanent injunctive relief that
requires the specific performance of the Franchisee's Post-Termination Obligations.

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54.

The Franchise Agreements also require the Franchisee to pay LJS liquidated

damages in the event it fails to comply with the Post-Termination Obligations of paragraph 11.02
of the Franchise Agreements in the amount of ($50) per day beginning on the thirty-first (31st)
day after the date of termination or expiration of this Agreement, not to exceed a maximum of
Seven Thousand Five Hundred Dollars ($7,500). Franchise Agreements ~ 11.02(d), Exhibits AB.

55.

The Guarantors, John and Patti Willingham, signed Guaranty Agreements

pursuant to which they agreed to guarantee, in their individual capacities, the payment and
performance of all the Franchisee's obligations under the Franchisee Agreements for the
Restaurants.
56.

Guaranty Agreements, Exhibit C.
Despite notice of the Franchisee's defaults and termination of the Franchise

Agreements, and knowledge of the Franchisee's failure to perform its Post-Termination
Obligations, the Guarantors failed to pay and perform the Franchisee's obligations as required by
the terms of the Guaranty Agreements.
57.

Consequently, the Guarantors have defaulted on their obligations under the

Guaranty Agreements with LJS.
58.

LJS has performed all of its obligations under the Guaranty Agreements.

59.

Because the Franchisee has failed to perform its obligations to LJS arising out of

the Franchise Agreements, the Guarantors are liable, and LJS is entitled to judgment against the
Guarantors for: (a) all amounts due LJS under the Restaurants Franchise Agreements for unpaid
royalties and advertising fees for the period the Franchisee and Guarantors continue the
operation of the Restaurants using various LJS Proprietary Marks, Systems and trade dress, plus
liquidated damages, interest and late charges; (b) all damages awarded LJS for trademark

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infringement and unfair competition; (c) LJS's reasonable attorneys' fees, court costs, and
expenses in connection with this action; (d) specific performance of the Franchisee's PostTermination Obligations, and (e) specific performance of the non-compete provisions of the
Franchise Agreements.
60.

In addition to judgment entered in its favor, LJS is entitled to recover reasonable

attorneys' fees and expenses incurred by reason of the Defendants defaults and this lawsuit to
enforce the terms of the Franchise Agreements pursuant to paragraph 11.02 of Exhibits A and B.

COUNT III
(BREACH OF CONTRACTS-CONDITIONAL REINSTATEMENT
AND PROMISSORY NOTE)
61.

AGREEMENT

As a party to the Conditional Reinstatement Agreement and maker of the

Promissory Note (Exhibit D to the Conditional Reinstatement Agreement attached as Exhibit D),
John Willingham agreed to make certain payments of principal and interest to LJS.
62.

Defendant John Willingham has failed to pay LJS the amounts owed under the

Promissory Note.
63.

Consequently, John Willingham has defaulted on his obligations under the

Conditional Reinstatement Agreement and the Promissory Note.
64.

LJS has performed all of its obligations under the Conditional Reinstatement

Agreement and Promissory Note.
65.

LJS is entitled to recover its actual damages for unpaid principle, accrued

interest, late charges, pre- and post-judgment interest, attorney fees, and all other costs and
disbursements incident to the collection of the balance due under the Promissory Note pursuant
to the terms of the Promissory Note as attached as Exhibit D to the Conditional Reinstatement
Agreement, Exhibit D.

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COUNT IV
(LJS LANHAM ACT TRADEMARK INFRINGEMENTDAMAGES AND INJUNCTIVE RELIEF)
66.

This claim arises under the Federal Trademark Act, 15 U.S.C. §1051-1127.

67.

LJS owns certain proprietary marks and licenses, the "LJS Proprietary Marks."

LJS licenses and grants the right to use the LJS Proprietary Marks to franchisees operating LJS
Restaurants pursuant to the terms of a valid franchise agreement.
68.

LJS is now and has been extensively engaged in the business of operating and

franchising restaurants and providing restaurant services in interstate commerce. In connection
therewith, LJS's principal trademark and service mark is "Long John Silver's," used alone and in
conjunction with other words and designs. LJS also uses distinctive and characteristic
trademarks, trade dress, service marks, including without limitation "Long John Silver's" signs,
designs, and emblems as LJS designates in the LJS Confidential Manual or otherwise in writing
as prescribed for use with the LJS System. A nonexclusive list ofLJS Proprietary Marks is
attached at Exhibit H.
69.

Since prior to the acts complained of herein, LJS has extensively used the LJS

Proprietary Marks to identify its restaurants as Long John Silvers' Restaurants, its products as
LJS products, and to distinguish them from those made and sold by others. LJS has also invested
substantial time and money to develop and promote the LJS Proprietary Marks in connection
with its franchising and licensing program, and the marketing and sale of its services and related
goods by, among other things, prominently displaying the LJS Proprietary Marks on the signs,
menus, containers and displays associated therewith. In addition, LJS has prominently displayed
the LJS Proprietary Marks on restaurant fronts, letterheads, bills, direct mail advertising,
telephone directory advertising and in periodicals distributed throughout the United States.

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70.

As a result, LJS's Proprietary Marks are distinctive and highly regarded by the

consuming public, signifying LJS as the source of high quality, reliable restaurant services and
related goods. The LJS Proprietary Marks have become, through widespread and favorable
public acceptance and recognition, assets of substantial value symbolizing LJS' s restaurant
services and related goods, and its good will.
71.

LJS has widely expanded its restaurant operations under the LJS Proprietary

Marks and franchises numerous restaurants around the country.
72.

The Franchisee and Guarantors have no right or authority to display the LJS

Proprietary Marks at the Restaurants after termination as an LJS franchisee.
73.

The LJS Franchise Agreement sets forth the Post-Termination Obligations of the

franchisee upon termination of the LJS franchise agreement. These Post-Termination
Obligations provide, in part, that upon termination the licensee shall immediately cease
displaying the LJS Proprietary Marks, to de-image the Restaurants (remove all signs, emblems,
or displays associated with LJS or the LJS System), to return to LJS all copies of the LJS
Confidential Manual, to relinquish the franchise phone number, and to modify the exterior and
interior of the Restaurants so as to differentiate it from its prior identity as an LJS restaurant.
74.

In addition to their contractual obligation to comply with all the Post-

Termination Obligations, LJS specifically advised the Franchisee and Guarantors of their PostTermination Obligations upon termination of the LJS Franchise Agreements and demanded
compliance.
75.

The Franchisee and Guarantors continue to fail and refuse to comply with all of

the Post-Termination Obligations of the LJS Franchise Agreements.

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76.

With full knowledge ofLJS's rights in the LJS Proprietary Marks, the

Franchisee and Guarantors have infringed on same by improperly displaying the LJS Proprietary
Marks at the Restaurants after the termination of the Franchise Agreements.
77.

Upon information and belief, despite the contractual post-termination obligations

and despite the Bankruptcy Cease and Desist Order, the Defendants continue to own and/or
operate competing seafood restaurant that use and display actual and/or confusingly similar LJS
trademarks and trade dress.
78.

The Franchisee's and Guarantors' display of the LJS Proprietary Marks in

connection with the Restaurants creates in the minds of purchasers and potential purchasers a
direct association with LJS, which irreparably harms the value of the LJS Proprietary Marks and
their franchise system, and injures LJS's reputation and good will.
79.

Such acts were being committed with the intent and purpose of appropriating

and trading upon the good will and reputation of the LJS Proprietary Marks, all to the detriment
ofLJS and to the good will the public has come to associate with said marks.
80.

As a direct result of the Franchisee's and Guarantors' failure to fully de-image

the Restaurants, LJS has received various complaints from consumers believing, or confused as
to whether, they had patronized an authorized LJS franchise.
81.

By virtue of the aforementioned acts, the Defendants have violated Section 32(1)

of the Lanham Act, 15 US.c.
82.

§1l14(1).

Therefore, LJS prays for judgment as set forth below and an accounting of the

Franchisee's profits.

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COUNT V
FEDERAL UNFAIR COMPETITION
83.

The Franchisee and Guarantors, after the termination of the Franchisee's license

to use the LJS Proprietary Marks in the operation of the Restaurants under the Franchise
Agreements, and with the intent and purpose of misleading the trade and the public, have
continued to partially use and display the LJS Proprietary Marks at the Restaurants.
84.

The Franchisee's and Guarantors' unlicensed use of the LJS Proprietary Marks

comprises a false designation of origin or false representation, and constitutes the utilization of
false descriptions and representations in interstate commerce. The Defendants are falsely
representing themselves to the public as an LJS franchisee.
8S.

As a consequence of the foregoing, the Defendants are unjustly enriched by

unlawfully benefitting from the good will and reputation ofLJS.
86.

The Franchisee's acts are in violation of IS US.C. § 112S(a) and federal unfair

competition law.
87.

The Franchisee's and Guarantors' acts have caused and will continue to cause

irreparable injury to LJS if not restrained by this court from violations ofLJS's rights. LJS has
no adequate remedy at law, and therefore seeks injunctive relief under IS US.C. § 1116 and
such monetary relief to which it is entitled pursuant to IS US.C. § 1117, including treble actual
damages, costs, and reasonable attorneys' fees.
RELIEF REQUESTED
WHEREFORE, LJS demands judgment against the Defendants, as follows:
1.

LJS is entitled to a declaratory judgment

by this Court that the Franchise

Agreements have been effectively and validly terminated according to the terms set forth in the

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Franchise Agreement and the Default and Termination Letters, due to the Franchisee's failure to
cure the notices of default and other breaches of the Franchise Agreement;
2.

LJS is also entitled to a declaratory judgment by this court, pursuant to 28 § US.c.

2201, that the Defendants must comply with all terms of the Franchise Agreements including
payment of all amounts due under their agreements and performance of all Post-Termination
Obligations;
3.

A preliminary and permanent injunction pursuant to the agreement of the parties

and powers granted to the Court under 15 US.c.

§1l16, enjoining and restraining Defendants,

their agents, servants, employees, successors, related companies and assigns from directly or
indirectly:
(a)

Doing business as LJS restaurantd or operating under any name or in any manner

that might tend to give the public the impression that are or were a LJS Franchisee or otherwise
associated with LJS;
(b)

Using the LJS System and the LJS Proprietary Marks, LJS name, symbols, or

indicia, doing any other act, or making any statement which suggests or indicates that
Defendants are in any way affiliated, connected, or associated with the LJS franchising system,
are an authorized LJS franchisee, or which is likely to cause confusion or mistake or to deceive
in connection with the advertising, promotion and selling of goods and services at the
Defendants' Restaurants operated under the Franchise Agreements;
(c)

Using any proprietary information or other trade secrets disclosed to them or

using goods, emblems, signs, displays or other property on which the LJS name, any of the LJS
Proprietary Marks or any confusing assimilation thereof are imprinted;

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(d)

To require the Defendants to immediately de-image the Restaurants from their

present appearance, to remove all signs, emblems, displays or other items associated with LJS,
the LJS System, and the LJS Proprietary Marks, to return all copies of the LJS Confidential
Manual, and to de-identify or modify the exterior of the Restaurants as to differentiate them from
their prior identity as an LJS restaurant; and
(e)

To require the Defendants to comply with the non-compete provision of the

Franchise Agreements.
4.

That the Defendants be required to file with the Court and serve on LJS's counsel

within 30 days after service of any injunction issued herein or within such reasonable time as the
Court shall direct, a report in writing and under oath setting forth in detail the manner in which
Defendants have complied with such injunction;
5.

An accounting of Defendants'

sales at the Restaurants from the date they failed to

pay all fees required by the Franchise Agreement through the time that Defendants comply with
all Post-Termination Obligations;
6.

Judgment in favor of LJS on its claims for payment due and owing under the

Franchise and Guaranty Agreements, jointly and severally against the Defendants,

including

without limitation, the Defendants' obligations for royalties, advertising fees, liquidated damages
and all late fees, interest charges, and finance charges, plus such amounts as accrue until
judgment, costs, attorneys' fees, and expenses;
7.

Judgment in favor of LJS on its claims for payment due and owing under the

Promissory Note against John Willingham,

including without limitation, actual damages for

unpaid principle, accrued interest, late charges, pre- and post-judgment interest, attorney fees, and

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all other costs and disbursements

incident to the collection of the balance due under the

Promissory Note.
8.

Judgment in favor of LJS on its claims for trademark infringement and unfair

competition, jointly and severally against the Defendants, including without limitation, damages
oflost profits and treble damages pursuant to U.S.C. §1117(a), along with such other and further
relief as the Court may deem just and proper;
9.

Pre- and post- judgment interest;

10.

Reasonable attorney fees and all other costs and expenses of this litigation; and

11.

All such further legal and equitable relief to which LJS is entitled and as this Court

deems proper.

Respectfully submitted,

/s/

Mwtgwtet (}!tant

Margaret Grant
[e-mail]
STITES & HARBISON, PLLC
400 West Market Street, Suite 1800
Louisville, Kentucky 40202
Phone: [phone]
Counsel for Plaintiff, Long John Silver's, Inc.

YU065:YU170:843547:2:LOUISVILLE

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