Troy Landry Productions L L C v. Halpern Import Co et al

Filing 1

COMPLAINT against All Defendants (Filing fee $350, receipt number 0536-1836573) filed by Troy Landry Productions, LLC. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Civil cover sheet, # 7 Proposed Summons Halpern Import Company, # 8 Proposed Summons National Cap and Sportswear, Inc., # 9 Proposed Summons Ripple Junction Design Co.)(aty,Maughan, Roy)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
TROY LANDRY PRODUCTIONS, LLC
Plaintiff
VERSUS
HALPERN IMPORT COMPANY,
NATIONAL CAP AND SPORTSWEAR,
INC., AND RIPPLE JUNCTION DESIGN CO
Defendants

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CIVIL ACTION
NO. 6:12-cv-4

JUDGE

MAG.

COMPLAINT
NOW INTO COURT, through undersigned counsel, comes Plaintiff, Troy Landry
Productions, LLC, a Louisiana limited liability, who respectfully represents the following:
Nature of the Action
1.
This is a civil action for infringement of registered and unregistered trademarks under the
Lanham Act; unfair competition under the Lanham Act; trademark infringement under state law;
injury to business reputation under Louisiana law; unfair competition under state law; and
requesting injunctive relief and damages.
Parties
2.
The Plaintiff, Troy Landry Productions, LLC, (hereinafter referred to as “Landry”) is a
Louisiana limited liability company, who principal place of business is in Pierre Part, Louisiana.
Plaintiff owns unregistered and federally registered trademarks, which include, “Choot Em,”
“Tree Shaka,” “Tree Breaka,” and “Mudda Fricka.”

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3.
The Defendant, Halpern Import Company, (hereinafter referred to as “Halpern”), is a
Georgia corporation, with its principal business at 2890 Amwiler Road, Atlanta, Georgia 30360.
Landry is informed and believes, and on that basis, alleges, Halpern is soliciting business,
executing contracts, licenses, and selling infringing goods in stores located within the boundaries
defining the United States District Court for the Western District of Louisiana.
4.
The Defendant, National Cap and Sportswear, Inc., (hereinafter referred to as “National
Cap”), is a Georgia corporation, with its principal business at 1101 Keen Drive, Waycross,
Georgia 31503. Landry is informed and believes, and on that basis, alleges, National Cap is
soliciting business, executing contracts, licenses, and selling infringing goods in stores located
within the boundaries defining the United States District Court for the Western District of
Louisiana.
5.
The Defendant, Ripple Junction Design Co. (hereinafter referred to as “Ripple”), is an
Ohio corporation, with its principal business at 11529 Goldcoast Drive, Cincinnati, Ohio 45249.
Landry is informed and believes, and on that basis, alleges, Ripple is soliciting business,
executing contracts, licenses, and selling infringing goods in stores located within the boundaries
defining the United States District Court for the Western District of Louisiana.

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Jurisdiction and Venue
6.
This Court has jurisdiction over the subject matter of this Action under Section 39 of the
Lanham Act, 15 U.S.C. § 1121, and under Section 1331, 1332(a), and 1338(a) and (b) of the
Judicial Code, 28 U.S.C. § 1331, 1332(a), 1338(a) and 1338 (b). This Court has supplemental
jurisdiction over Landry’s state law claims under Section 1367 (a) of the Judicial Code, 28
U.S.C. § 1367(a).
7.
This Court also has diversity jurisdiction over the subject matter of this Action under
Section 1332(a), 28 U.S.C. § 1332(a) and the matter in controversy exceeds, exclusive of interest
and costs, the sum of $75,000.00 specified by 28 USC § 1332.
8.
Venue in this judicial district is proper under Section 1391(b) of the Judicial Code, 28
U.S.C. § 1391 (b) because a substantial part of the events giving rise to Landry’s claims against
the Defendants, Halpern, National Cap, and Ripple, have occurred and are occurring in this
district, which include soliciting distributors in this district to distribute and sell their infringing
products.
Background Facts
9.
Plaintiff, Landry, is engaged in the business of manufacturing and selling merchandise,
including, but not limited to, t-shirts, caps, sweat shirts, hoodies, and other novelty merchandise
utilizing the trademarks “Choot Em,” “Tree Shaka,” “Tree Breaka,” and “Mudda Fricka.”

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10.
Defendant, Halpern, is engaged in the business of selling merchandise, including, but not
limited to, t-shirts, caps, sweat shirts, hoodies, and other novelty merchandise utilizing the
trademarks “Choot Em,” “Tree Shaka,” “Tree Breaka,” and “Mudda Fricka.”
11.
Defendant, National Cap, is engaged in the business of selling merchandise, including,
but not limited to, t-shirts, caps, sweat shirts, hoodies, and other novelty merchandise utilizing
the trademarks “Choot Em,” “Tree Shaka,” “Tree Breaka,” and “Mudda Fricka.”
12.
Landry is informed and believes, and on that basis, alleges that National Cap may also be
currently acting as an unauthorized sub-licensee for Halpern.
13.
Landry is informed and believes, and on that basis, alleges that a representative of
National Cap and/or Halpern is soliciting business and executing contracts and licenses in the
State of Louisiana, in particular with a company by the name of Church Point Wholesale, who
principal place of business is in Church Point, Louisiana.
14.
Defendant, Ripple is engaged in the business of selling merchandise, including, but not
limited to, t-shirts, caps, sweat shirts, hoodies, and other novelty merchandise utilizing the
trademarks “Choot Em,” “Tree Shaka,” “Tree Breaka,” and “Mudda Fricka.”

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15.
Since early 2010, Plaintiff has continuously used the trademark, “Choot Em,” and has
since developed and utilized the trademarks “Tree Shaka,” “Tree Breaka,” and “Mudda Fricka”
(hereinafter referred to as the “trademarks” or “Landry trademarks”) to identify its products. An
example of Plaintiff’s merchandise bearings its trademark is attached as Exhibit A-D.
16.
Plaintiff has sold, and is now extensively selling, products under the trademarks
throughout all the states of the United States and throughout Canada, and has widely advertised
and promoted its products under those marks. As a result of this long, continuous and extensive
use, the trademarks have become widely and favorable known to the merchandise industry and to
the public at large as products distinctive to Landry.
17.
Landry has invested substantial time, money, and effort to advertise and promote its
trademarks since 2010.
18.
Landry has filed and is pursuing numerous state and federal trademark applications to
register his designs in various forms and formats.
19.
Based on information and belief, in the intervening years, in violation of Plaintiff’s rights
in the Landry trademarks, Defendants established a series of businesses that utilized the Landry
trademarks for their products. Such use was after the dates of first use by the Plaintiff in the
Landry trademarks.

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Infringing Activities of Defendants
20.
Subsequent to Landry’s use of its trademarks, and with full knowledge of Landry’s rights
in the marks, Defendants, Halpern, National Cap, and Ripple, without Landry’s consent, adopted
and used the expressions/trademarks in connection with its merchandise, such terms being used
on t-shirts and caps, and on displays used in direct association with their goods. An example of
each of Defendant’s infringing activities containing the complained of design is attached as
Exhibit E.
21.
On information and belief, the business of Defendants is similar and move through
similar channels of trade to similar classes of consumers as does the business offered by Landry.
Landry, Halpern, National Cap, and Ripple are in direct competition with respect to the business
of selling merchandise. The marks used by the Defendants are strikingly similar to and in some
cases literal verbatim copies of the Landry trademarks.
22.
Defendants’ merchandise are so similar to Landry’s merchandise, bearing the use of the
trademarks, as to be likely to cause confusion, mistake, or deception as to the source or origin of
the Defendants’ goods and services offered in that the public and others are likely to believe that
Defendants’ products are provided by, or sponsored by, or approved by, or licensed by, or
affiliated with, or in some other way legitimately connected with Landry, all to Landry’s
irreparable harm.

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23.
Defendants’ use of the trademarks owned by Landry on its merchandise is a willful and
wanton attempt by them to obtain the benefit of the goodwill and reputation that Landry has
established in its registered trademarks and such use is likely to cause confusion, or to cause
mistake, or to deceive.
24.
Defendants have sold, and are now selling or attempting to sell, merchandise, including tshirts and caps, under the designation of the trademarks owned by Landry. The use of such
trademarks by Defendants is without permission or authority of Landry and is likely to cause
confusion, to cause mistake and to deceive.
25.
Defendants’ acts constitute infringement of Landry’s rights in its trademarks and the
Defendant will continue such infringement unless enjoined by this Court.
26.
Plaintiff has no control over the quality of goods or services being offered by Defendants
and, because of the confusion as to the source caused by Defendants, Plaintiff’s valuable
goodwill with respect to its trademarks are at the mercy of Defendants.
27.
The use by Defendants of the Landry trademarks on their products has caused and will
cause confusion, mistake and deception of customers as to the source of origin of its goods or
services.

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28.
The use by Defendants of the Landry trademarks has resulted in dilution of the exclusive
rights which Plaintiff formerly enjoyed in connection with its products in the sale of its goods,
such dilution being to the detriment of Plaintiff.
29.
The infringement by Defendants has been willful deliberate, designed specifically to
trade upon the goodwill associated with Plaintiff’s name and trademarks.
30.
By reason of the aforesaid infringement, Defendants have caused an injury to Landry.
Claim I
Trademark Infringement in Violation of Section 32 of the Lanham Act, 15 U.S.C. §1114
Against Halpern, National Cap, and Ripple
31.
Landry repeats and realleges each and every allegations contained in Paragraph 1 through
30 as if fully set forth herein.
32.
The trademarks used by Defendants in connection with their merchandise are so close to
the Landry trademarks as to be virtually identical or a colorable simulation.
33.
The use by Defendants of the Landry trademarks is likely to cause confusion or mistake,
and to deceive consumers as to the source, sponsorship or approval of the Defendants’ goods,
specifically, to cause consumers to believe that the Defendants’ goods and services are sponsored
by, affiliated with, approved by, or otherwise connection with Landry.

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34.
Upon information and belief, Defendants chose to use the Landry trademarks with actual
or constructive knowledge of the prior use of and rights in the Landry trademarks by Landry in
connection with the manufacture and sell of merchandise. Upon information and belief,
Defendants used its infringing marks in commerce with the intent to cause confusion or mistake
or to deceive.
35.
The use by Defendants of the Landry trademarks is an infringement of the federally
registered Landry trademarks as set forth in the Landry registrations, in violation of Section
32(1) of the Lanham Act, 15 U.S.C. § 1114(1).
36.
The conduct of Defendants has caused and is causing immediate and irreparable injury to
Landry and thus Landry is entitled to injunctive relief to restrain this conduct by specific
statutory authority and because the injury to the goodwill in its distinctive Landry trademarks
cannot be adequately compensated in money.
Count II
False Designation of Origin Under the Lanham Act
Against Halpern, National Cap, and Ripple
37.
Landry repeats and realleges each and every allegation contained in Paragraph 1 through
36 as if fully set forth herein.

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38.
Defendants’ use of the Landry trademarks constitutes false designation of origin which is
likely to deceive and has deceived customers and prospective customers into believing that
Defendants’ goods are that of Plaintiff and, as a consequence, are likely to divert and have
diverted customers away from Plaintiff.
39.
Plaintiff has no control over the nature and quality of the goods being offered by
Defendants. Any failure, neglect or default by Defendants in providing such goods will reflect
adversely on Plaintiff as the believed source of origin thereof, hampering efforts by Plaintiff to
continue to protect its outstanding reputation for high quality goods at a reasonable price. Such
adverse reflection has resulted and will result in loss of sales by Plaintiff and the considerable
expenditures by Plaintiff to promote its goods under its trademarks, all to the detriment of
Plaintiff.
40.
Defendants’ false designation of origin will continue unless enjoined by this Court.
Count III
Common Law Trademark Infringement Under the Lanham Act
Against Halpern, National Cap, and Ripple

41.
Landry repeats and realleges each and every allegation contained in Paragraph 1 through
41 as if fully set forth herein.

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42.
Plaintiff owns and uses the Landry trademarks in various forms and styles in connection
with its goods, which marks have not, as yet, been registered in the United States Patent and
Trademark Office.
43.
Plaintiff owns and enjoys common law rights in the State of Louisiana and throughout the
United States in and to the Landry trademarks for goods, which are superior to any rights which
Defendants may claim in or to said marks in any form or style with respect to the products.
44.
Use of the Landry trademarks in connection with Defendants’ products is likely to cause
and has caused confusion as to the source of Defendants’ goods, in that purchasers thereof will
likely associate, or have associated, such products with, and as originating from, Plaintiff, all to
the detriment of Plaintiff.
45.
Defendants’ common law infringement will continue unless enjoined by this Court.
Count IV
Federal Unfair Competition Under the Lanham Act
Against Halpern, National Cap, and Ripple
46.
Landry repeats and realleges each and every allegation contained in Paragraph 1 through
45 as if fully set forth herein.

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47.
As a result of Landry’s widespread and extensive use of, and advertising and promotion
under, its registered trademarks, such trademarks have developed and now has a distinctive
meaning in the minds of the trade and public and has come to indicate to the trade and public the
products of Landry.
48.
The use by Defendants of the Landry trademarks is a false designation of the origin and a
false representation as to the origin of the goods and services of Defendants, is likely to cause
confusion, mistake or deception as to the source of the Defendants’ goods and services, and is
likely to create the false impression that the Defendants’ goods and services are authorized,
sponsored, or endorsed, licensed by, or affiliated with Landry.
49.
The actions of Defendants in this complaint are unfair competition in violation of Section
43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Such acts will injure the business reputation of
Landry and dilute or otherwise injure or destroy the distinctive character and quality of Landry’s
trademarks, all to Landry’s substantial and irreparable harm.
50.
The acts of Defendants further constitute unfair competition with Landry in that these
acts are calculated to result, and have resulted, in the unjust enrichment of Defendants since they
avail to Defendants the benefit of Landry’s valuable goodwill, all to Landry’s great damage and
detriment.

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51.
The conduct of Defendants have cause and is causing immediate and irreparable injury to
Landry and thus Landry is entitled to injunctive relief to restrain this conduct and because the
injury to the goodwill of Landry’s distinctive marks cannot be adequately compensated in
money.
Claim V
Trademark Infringement Under Louisiana Law
Against Halpern, National Cap, and Ripple

52.
Landry repeats and realleges each and every allegation contained in Paragraph 1 through
51 as if fully set forth herein.
53.
The unauthorized use by Defendants of the Landry’s trademarks is an infringement in
violation of the Louisiana trademark laws and Article 2315 of the Louisiana Civil Code, because
it is likely to cause confusion and mistake and to deceive the public as to the source of these
products.
Claim VI
Trademark Dilution Under Louisiana Law
Against Halpern, National Cap, and Ripple
54.
Landry repeats and realleges each and every allegation contained in paragraph 1 through
53 as if fully set forth herein.

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55.
Defendants’ use and advertisement of their products under the Landry’s trademarks are
likely to injure the business reputation of Plaintiff and is likely to dilute the distinct quality of
Plaintiff’s name and product in violation of La. R.S. 51:223.1.
Claim V
Injury to Business Reputation Under Louisiana Law
Against Halpern, National Cap, and Ripple

56.
Landry repeats and realleges each and every allegation contained in paragraph 1 through
55 as if fully set forth herein.
57.
The unauthorized use by Defendants of the Landry trademarks is likely to injure the
business reputation of Landry, in violation of La. R.S. 51:223.1 because it is likely to cause
confusion and mistake and to deceive the public as to the source of these products.
Claim VI
Unfair Competition Under Louisiana Law
58.
Landry repeats and realleges each and every allegation contained in paragraph 1 through
57 as if fully set forth herein.

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59.
By committing the acts hereinabove alleged, Defendants have been guilty of unfair
competition, deceptive advertising and unfair trade practices in violation of La. R.S. 51:2231 and
Articles 2315 of the Louisiana Civil Code. Such unfair competition has caused Plaintiff damage
and loss of profits. Defendants’ unlawful conduct will continue to damage Plaintiff unless
enjoined by this Court and Plaintiff has no adequate remedy at law.
Demand For Jury Trial
60.
Plaintiff hereby demands trial by a jury.
WHEREFORE, the Plaintiff, Troy Landry Productions, LLC, requests that the Court
enter judgment:
1. Ordering that the Defendants, Halpern Import Company, National Cap and Sportswear,
Inc., and Ripple Junction, their officers, directors, agents, servants, employees, attorneys,
and any other persons in active concert or participation with them, be forthwith
preliminary and permanently enjoined from:
a. Using, alone or in combination, the name Landry trademarks, including, but not
limited to, “Choot Em,” “Tree Shaka,” “Tree Breaka” and “Mudda Fricka” or any
confusingly similar trademark, designation, description, or representation in the
sale, distribution, marketing, advertising, or identification of Defendants’ goods
or services;
b. Causing likelihood of confusion of the distinctiveness of Landry’s trademarks;

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c. Contracting current or potential customers in connection with the Landry
trademarks or any confusingly similar trademark, designation or description;
d. Diluting the distinctive quality of the Landry trademarks;
e. Injuring the business reputation of Troy Landry Productions, LLC or Landry
trademarks;
f. Otherwise infringing Landry’s trademark or in unfair competition with the Landry
in any manner whatsoever;
2. Ordering the Defendants to deliver for destruction all merchandise, signs, displays,
advertisements, packaging, and any other materials in their possession or control, or in
the possession or control of their agents, bearing the Landry trademarks;
3. Ordering the Defendants to provide an accounting for, and to pay over to Landry all
gains, profits and advantages derived by them from their infringement and unfair
competition;
4. Ordering the Defendants’ to pay punitive damages;
5. Ordering the Defendants’ to pay Landry its attorney’s fees and costs in this suit;
6. Ordering the Defendants’ to pay Landry pre- and post-judgment interest; and
7. That Landry have such other and further relief as the Court may deem just and proper.
RESPECTFULLY SUBMITTED:
THE MAUGHAN LAW FIRM
s/ Roy H. Maughan, Jr.
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ROY H. MAUGHAN, JR., #17672
NAMISHA D. PATEL, #31911
634 CONNELL’S PARK LANE
BATON ROUGE, LOUISIANA 70806
TELEPHONE: [phone]
FAX: [phone]
*SERVICE AND CITATION INFORMATION ON FOLLOWING PAGE
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PLEASE PREPARE THE FOLLOWING CITATIONS FOR SERVICE:

Halpern Import Company
Through Its Registered Agent
Jay Halpern
2890 Amwiler Road
Atlanta, Georgia 30360
National Cap and Sportswear, Inc.
Through Its Registered Agent
Carey Stewart
1101 Keen Drive
Waycross, Georgia 31503

Ripple Junction Design Co.
Through Its Registered Agent
KMK Service Corp
One E Fourth Street
Cincinnati, Ohio 45202

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