Case :-cv-0-fjm Document Filed 0/0/ Page of 0 GRAIF BARRETT & MATURA, P.C. Kevin C. Barrett, State Bar No. 00 Jeffrey C. Matura, State Bar No. 0 0 North Central Avenue, Suite 00 Phoenix, Arizona 00 Telephone: 0--00 Facsimile: 0-- Attorneys for BBK Tobacco & Foods, LLP, d/b/a HBI International Email Addresses: kbarrett@gbmlawpc.com jmatura@gbmlawpc.com BBK Tobacco & Foods, LLP, an Arizona limited liability partnership, d/b/a HBI International, vs. Plaintiff, Rocky Patel Premium Cigars, Inc, a Florida Corporation, Defendant. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Case No. COMPLAINT (Jury Trial Demanded) DESCRIPTION OF ACTION. This is an action by BBK Tobacco & Foods, LLP dba HBI International ( HBI International ) against Rocky Patel Premium Cigars, Inc. ( Rocky Patel ) for trademark infringement, unfair competition, and trademark dilution. HBI International seeks injunctive relief and damages for trademark infringement under the Lanham Act, U.S.C., for unfair competition under U.S.C. (a), and for dilution of a famous mark under U.S.C. (c).
Case :-cv-0-fjm Document Filed 0/0/ Page of 0 THE PARTIES. Plaintiff BBK Tobacco & Foods, LLP is an Arizona limited liability partnership. It is incorporated in Arizona, has its principal place of business in Arizona, and does business under the name HBI International.. Upon information and belief, defendant Rocky Patel Premium Cigars, Inc. ( Rocky Patel ) is incorporated in Florida and has its principal place of business in Florida. JURISDICTION AND VENUE. This Court has subject matter jurisdiction pursuant to U.S.C. and U.S.C.,,, and. This case primarily involves a federal question, complete diversity of citizenship exists, and the amount in controversy exceeds $,000.. Venue in this judicial district is appropriate pursuant to U.S.C. (a).. Defendants are subject to general and specific jurisdiction of this Court by virtue of their substantial contacts with Arizona, including, but not limited to, doing business in Arizona and marketing its products to consumers in Arizona. COMMON ALLEGATIONS. HBI International is in the business of designing, marketing, and selling tobacco-related products, including loose tobacco, rolling papers, and cigars.. In, HBI International launched a brand of Rolling Papers, Hand Operated Machines for Rolling Cigarettes and Power Operated Machines for Rolling Cigarettes under the name Zen. HBI International s line of Zen-branded products has since grown and has included cigar wraps, tobacco, cigar rolling machines, cigarette rolling machines, rolling papers, tubes, filters, pipe cleaners and rolling boxes. HBI International sold all these products before Defendants engaged in their improper acts, as described below.
Case :-cv-0-fjm Document Filed 0/0/ Page of 0. Since mass marketing Zen-branded products in, HBI International has continuously used the Zen mark in connection with its Zen line of products in various advertising and promotional materials.. HBI International owns federal trademark registration for Zen, No. 0.. HBI International has spent significant sums of money and expended significant efforts to promote its Zen line of products and Zen mark. HBI International s promotional efforts include, for example, internet advertising, point of sale materials, sponsorships, contests, and attendance at trade shows. The Zen mark is prominently featured in advertisements and promotions for Zen products.. As a result of HBI International s substantial use and promotion of the Zen mark, HBI International has acquired great value as an identifier of HBI International s products, which serve to distinguish HBI International s Zen line of products from those of its competitors. Customers in this Judicial District and elsewhere readily recognized HBI International s Zen mark as a distinctive designation of the origin of HBI International s Zen line of products. The Zen mark is an asset of significant value as a symbol of HBI International and its quality products and goodwill.. Rocky Patel is in the business of designing, manufacturing, marketing, selling, and distributing tobacco-related products, including cigars.. Without permission or authority from HBI International, Rocky Patel has infringed upon HBI International s Zen mark in interstate commerce by making, using, promoting, advertising, distributing, selling, and offering to sell cigars under the brand name Zen.. Upon information and belief, Rocky Patel s unauthorized use of HBI International s Zen mark is intended to trade upon the goodwill and substantial recognition associated with HBI International s Zen line of products.
Case :-cv-0-fjm Document Filed 0/0/ Page of 0. Upon information and belief, Rocky Patel is using HBI International s Zen mark to associate themselves with HBI International or otherwise trade upon HBI International s reputation.. Upon information and belief, Rocky Patel s unauthorized use of HBI International s Zen mark is intended to cause confusion, mistake, or deception.. Upon information and belief, Rocky Patel intends to cause consumers and potential customers to believe that Rocky Patel s Zen-branded cigars are associated with HBI International s Zen products when, in fact, Rocky Patel s cigars are not.. By virtue of the acts outlined herein, Rocky Patel has created a likelihood of injury to HBI International s business reputation, caused both actual confusion and the strong likelihood of consumer confusion as to the source of origin and of the relationship of HBI International s and Rocky Patel s goods, and has otherwise competed unfairly with HBI International.. Upon information and belief, Rocky Patel s acts outlined herein are willful and deliberate.. Rocky Patel s acts outlined herein have caused damage to HBI International in an amount to be determined at trial, and such damages will continue to increase unless and until Rocky Patel is enjoined from its wrongful conduct.. Rocky Patel s acts outlined herein have caused HBI International to suffer irreparable injury to its business. HBI International will suffer a substantial loss of goodwill and reputation unless and until Rocky Patel is preliminarily and permanently enjoined from the wrongful actions outlined herein. First Cause of Action (Trademark Infringement and False Designation of Origin) ( U.S.C. (a)). HBI International realleges and incorporates by reference the above
Case :-cv-0-fjm Document Filed 0/0/ Page of 0 paragraphs of this Complaint as though fully set forth herein.. This is an action for trademark infringement and false designation of origin arising under U.S.C. (a).. Rocky Patel created a false designation of origin by using in commerce, without HBI International s permission, marks confusingly similar to HBI International s Zen mark in connection with the advertisement, offering for sale, and sale of Rocky Patel s Zen cigars. Upon information and belief, Rocky Patel did so with the intent to compete against HBI International, to trade upon HBI International s reputation and goodwill by causing consumer confusion and mistake, and to deceive the public into believing that Rocky Patel s products are associated with, sponsored by, or approved by HBI International, when they are not. 0. HBI International s Zen mark is non-functional, is inherently distinctive, and has acquired substantial secondary meaning in the marketplace.. The name of Rocky Patel s Zen-branded is confusingly similar to HBI International s Zen line of tobacco products. Rocky Patel has infringed upon HBI International s Zen mark and created a false designation of origin by manufacturing, distributing, selling, and promoting in commerce, without HBI International s permission, its Zen cigars. Upon information and belief, Rocky Patel did so with the intent to compete against HBI International, to trade upon HBI International s reputation and goodwill by causing consumer confusion and mistake, and to deceive the public into believing that Rocky Patel s products are associated with, sponsored by, or approved by HBI International, when they are not.. Upon information and belief, Rocky Patel had actual knowledge of HBI International s ownership and prior use of HBI International s Zen mark, and without HBI International s consent, have willfully violated U.S.C. (a).. Rocky Patel s aforementioned acts have irreparably injured HBI International and damaged HBI International in an amount to be determined at trial.
Case :-cv-0-fjm Document Filed 0/0/ Page of 0 Such irreparable injury will continue unless and until Rocky Patel is preliminarily and permanently enjoined by this Court from further violation of HBI International s rights, for which HBI International has no adequate remedy at law. Second Cause of Action (Dilution of Mark) ( U.S.C. (c)). HBI International realleges and incorporates by reference the above paragraphs of this Complaint as though fully set forth herein.. This is an action for trademark infringement and false designation of origin arising under U.S.C. (c).. HBI International s Zen mark is famous within the meaning of U.S.C. (c) () and ().. After HBI International s Zen mark became famous, Rocky Patel commenced use of a mark in commerce that is likely to cause dilution by blurring by impairing the distinctiveness of such famous marks, lessening the capacity of such marks to identify and distinguish tobacco products offered by HBI International, and by creating an association arising from the similarity between Rocky Patel s Zen-branded products and HBI International s Zen mark that harms the repudiation of such famous marks.. Upon information and belief, Rocky Patel had actual knowledge of HBI International s ownership and prior use of HBI International s Zen mark, and without HBI International s consent, have willfully violated U.S.C. (c).. Rocky Patel s aforementioned acts have irreparably injured HBI International and damaged HBI International in an amount to be determined at trial. Such irreparable injury will continue unless and until Rocky Patel is preliminarily and permanently enjoined by this Court from further violation of HBI International s rights, for which HBI International has no adequate remedy at law.
Case :-cv-0-fjm Document Filed 0/0/ Page of 0 Third Cause of Action (Unfair Competition under Arizona Common Law) 0. HBI International realleges and incorporates by reference the above paragraphs of this Complaint as though fully set forth herein.. This is an action for common law unfair competition arising under the common law of the State of Arizona.. By virtue of the acts outlined herein, Rocky Patel has intentionally caused a likelihood of confusion among the public and has unfairly competed with HBI International in violation of the common law of the State of Arizona.. Rocky Patel s willful acts of unfair competition have caused damage and irreparable injury to HBI International in an amount to be determined at trial.. Rocky Patel s willful acts of unfair competition under Arizona common law constitute fraud, oppression, and malice. Accordingly, HBI International is entitled to exemplary damages. Prayer for Relief WHEREFORE, HBI International prays for judgment against Rocky Patel as follows: A. That the Court enter judgment in favor of HBI International and against Rocky Patel on all causes of action alleged herein; B. That the Court enter judgment that Rocky Patel has willfully violated the provisions of U.S.C. by infringing upon HBI International s Zen mark through the marketing, sale, and promotion of Rocky Patel s Zen cigars; C. That Rocky Patel be adjudged to have willfully violated the provisions of U.S.C. by using false designation of origin, false description, or false representation in connection with its products; D. That Rocky Patel be adjudged to have unfairly competed with HBI International under the common law of the State of Arizona;
Case :-cv-0-fjm Document Filed 0/0/ Page of 0 E. That Rocky Patel, its agents, servants, employees, attorneys, successors, and assigns, and all other persons in active concert or participation with any of them who receive actual notice of the injunction by personal service or otherwise, be forthwith preliminarily and permanently enjoined from:. Using HBI International s Zen mark in connection with Rocky Patel s goods; using HBI International s Zen mark in advertising or promoting Rocky Patel s goods; and/or using confusingly similar variations of the Zen mark in any manner that is likely to create the impression that Rocky Patel s goods originate from HBI International, are endorsed by HBI International, or are in any way connected to HBI International;. Otherwise infringing upon the Zen mark;. Unfairly competing with HBI International in any manner whatsoever; and. Causing a likelihood of confusion or injury to HBI International s business reputation; F. That Rocky Patel be directed to file with this Court and serve upon HBI International within thirty (0) days after the service of the injunction, a report, in writing, under oath, and setting forth in detail the manner and form in which Rocky Patel has complied with the injunction pursuant to U.S.C. ; G. That Rocky Patel be required to account to HBI International for any and all profits derived by Rocky Patel and all damages sustained by HBI International by virtue of Rocky Patel s acts outlined herein; H. That Rocky Patel be ordered to pay over to HBI International all damages which HBI International has sustained as a consequence of the acts outlined herein, subject to proof at trial; I. That HBI International be awarded treble damages pursuant to U.S.C.
Case :-cv-0-fjm Document Filed 0/0/ Page of 0 ; J. That HBI International be awarded exemplary damages from Rocky Patel; K. That an award of reasonable costs, expenses, and attorneys fees be awarded to HBI International; L. That Rocky Patel be required to deliver and destroy all devices, literature, advertising, goods, and other materials bearing the infringing mark pursuant to U.S.C. ; and M. That HBI International be awarded such other and further relief as this Court may deem just. Jury Trial Demand HBI International demands a jury trial on all claims that support such a demand. RESPECTFULLY SUBMITTED this rd day of August 0. GRAIF BARRETT & MATURA, P.C. By: /s/ Kevin C. Barrett Kevin C. Barrett Jeffrey C. Matura 0 North Central Ave., Suite 00 Phoenix, Arizona 00 Attorneys for Plaintiff BBK Tobacco & Foods, LLP, d/b/a HBI International
Case :-cv-0-fjm Document Filed 0/0/ Page of 0 CERTIFICATE OF SERVICE I hereby certify that on August, 0, I electronically transmitted this document to the Clerk s Office using the CM/ECF system for filing. /s/ Elizabeth James 0-- 0--, v.