Globefill v. Maud Borup - Complaint

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

Globefill Incorporated,

Plaintiff,

v.

Maud Borup, Inc.,

Defendant.

Case No. (_____/_____)

COMPLAINT

JURY TRIAL DEMANDED

Plaintiff, Globefill Incorporated, by its attorneys, files its complaint against Maud

Borup, Inc. and alleges as follows:

PARTIES AND JURISDICTION

1. Globefill Incorporated (“Globefill”) is a Canadian corporation with its

principal place of business at 333 Eglinton Avenue East, Toronto, Ontario,

Canada M4P 1L7. Globefill produces and sells vodka in the United States and

internationally.

2. Upon information and belief, defendant Maud Borup, Inc. (“Maud” or

“Defendant”) is a Minnesota corporation with its principal place of business at 2500

Highway 88, Ste 212, Minneapolis, Minnesota 55418.

3. This is an action for (1) trade dress infringement under

15 U.S.C. §§ 1114(1) and 1125(a); (2) unfair competition; (3) copyright infringement

under 17 U.S.C. § 101 et seq., and (4) design patent infringement under 35 U.S.C. §§ 1 et

seq.

CASE 4:14-cv-04776 Document 1 Filed 11/17/14 of 10

2

4. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331, 1332,

1338(a) and (b). Venue is proper in this district under 28 U.S.C. §§ 1391 and 1400.

Upon information and belief, Maud conducts business in this district, the claims alleged

in this Complaint arise in this district, and the acts of infringement have taken place and

are continuing to take place in this district.

STATEMENT OF FACTS

5. Globefill produces and sells alcoholic beverages in bottle packaging

configured in the shape of a skull as depicted in Exhibit A and incorporated by this

reference.

6. Globefill is the owner of a United States Patent and Trademark Office

(“USPTO”) trade dress registration for trade dress that consists of “a configuration of a

bottle in the shape of a skull” for use in association with “alcoholic beverages, namely

vodka.” Globefill registered the trade dress with the USPTO under Registration

No. 4043730.

7. The trade dress application which matured into Registration No. 4043730

was filed by Globefill on March 24, 2010 and registered on October 25, 2011. A true and

correct copy of Globefill’s registration certificate is attached as Exhibit B and

incorporated by this reference (hereinafter “’730 Registration”).

8. Pursuant to 15 U.S.C. § 1057, Globefill’s ’730 Registration is prima facie

evidence of Globefill’s ownership of the trade dress, the non-functionality and inherent


3

distinctiveness of the trade dress, and exclusive right to use the trade dress in association

with the goods identified therein.

9. Globefill is the owner of all rights and authorship in Globefill’s bottle

packaging as depicted in Exhibit A, and has duly registered with the U.S. Copyright

Office under VA 1-766-939. A true and correct copy of the copyright registration is

attached as Exhibit C and incorporated herein by reference (hereinafter “Globefill’s

Copyright”).

10. Globefill’s Copyright was created in 2007 and first published on

September 30, 2008, and was registered with the U.S. Copyright Office on

April 11, 2011.

11. Globefill is the owner of United States Patent No. D589,360 (“hereinafter

the “’360 Patent”) for the ornamental design for a bottle as shown in Exhibit A. The

’360 Patent was duly and legally issued by the United States Patent and Trademark office

on March 31, 2009. The ’360 Patent is valid and enforceable. True and correct copies of

the ’360 Patent is attached as Exhibit D.

12. Upon information and belief, Maud produces and sells cocktail mixes and

hot sauces sold in the United States in skull-shaped bottles as shown in true and accurate

photographs in Exhibit E.

COUNT I: TRADE DRESS INFRINGEMENT

13. Globefill repeats, and incorporates by reference, the allegations set forth in

paragraphs 1-12.


4

14. Defendant and its cocktail mixes are not affiliated, connected or associated

with, nor sponsored, authorized, approved or licensed by Globefill.

15. Upon information and belief, Defendant adopted and began using skull-

shaped trade dress for its cocktail mixes without the consent or knowledge of Globefill.

16. Defendant’s skull-shaped trade dress is similar to Globefill’s federally

registered trade dress because both parties’ trade dresses consist of skull-shaped bottles

for use in association with alcoholic beverages and/or products complementary and

closely related to alcoholic beverages.

17. Upon information and belief, Globefill’s registered trade dress and

Defendant’s skull-shaped trade dress are confusingly similar and both are used in

association with competing and related products that travel in identical channels of trade.

18. Upon information and belief, Defendant’s advertising, marketing, offering

for sale, and sale of cocktail mixes are likely to cause the public to be confused or

mistaken as to whether Defendant or its cocktail mixes are affiliated, connected or

associated with, or sponsored, authorized, approved or licensed by Globefill.

19. By the acts alleged herein, Defendant has infringed Globefill’s federally

registered trade dress in violation of Section 32(1) of the Lanham Act

(15 U.S.C. §1114(1)). Defendant has hereby caused, is causing, and will continue to

cause Globefill serious and irreparable damage unless enjoined by this Court.

20. Upon information and belief, the aforesaid acts of trademark infringement

have been undertaken with knowledge of Globefill’s exclusive rights to Globefill’s

federally registered trade dress, and are willful, entitling Globefill to an award of treble


5

damages and attorneys’ fees in bringing and maintaining this action, pursuant to Section

35(b) of the Lanham Act, 15 U.S.C. § 1117(b).

COUNT II: FEDERAL UNFAIR COMPETITION

21. Globefill hereby repeats and incorporates by reference, the allegations set

forth in paragraphs 1-20.

22. Defendant’s advertising, marketing, offering for sale, and sale of a related

product in a confusingly similar skull-shaped trade dress constitutes unfair competition

and false designation of origin that is likely to deceive customers.

23. By the aforesaid acts, Defendant has falsely designated the origin, quality,

and nature of their goods and business and has falsely described and represented same,

causing likelihood of confusion and constituting unfair competition in violation of

Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)). Defendant has thereby caused, is

causing, and will continue to cause Globefill serious and irreparable damage for which

there is no adequate remedy at law, and Defendant’s acts will, unless enjoined by this

Court, continue to damage Globefill.

24. Upon information and belief, the aforesaid acts of trademark infringement

have been undertaken with knowledge of Globefill’s exclusive rights to its federally

registered trade dress, and are willful, entitling Globefill to an award of treble damages

and attorneys’ fees in bringing and maintaining this action, pursuant to Section 35(b) of

the Lanham Act, 15 U.S.C. § 1117(b).


6

COUNT III: COPYRIGHT INFRINGEMENT



26. Plaintiff has been and still is the holder of all exclusive rights under the

Copyright Act, 17 U.S.C. § 101, et seq., and all amendment thereto, to reproduce,

distribute, and otherwise exploit Globefill’s Copyright throughout the United States and

around the world.

27. Upon information and belief, Defendant has copied and continues to copy

Globefill’s Copyright and Defendant’s infringing skull-shaped bottle for its cocktail mix

and hot sauce packaging is substantially similar to Globefill’s Copyright.

28. Upon information and belief, Defendant’s infringing cocktail mix and hot

sauce bottles were and are distributed in interstate commerce.

29. The manufacturing, advertising, selling, and distribution of Defendant’s

infringing cocktail mix and hot sauce bottles constitute unauthorized reproduction and

distribution of Globefill’s Copyright.

30. By the aforesaid acts, Defendant has infringed Globefill’s Copyright by

copying Globefill’s skull-shaped bottle in the manufacture, sale, and distribution of

Defendant’s cocktail mixes and hot sauces with full knowledge that Globefill’s skull-

shaped bottle is protected by copyright.

31. By the acts alleged herein, Defendant has infringed Globefill’s Copyright

in violation of 17 U.S.C. § 501, and Globefill is entitled to recover from Defendant the


7

damages sustained by Globefill as a result of Defendant’s infringement of Globefill’s

Copyright allowable under 17 U.S.C. § 502.

32. Defendant has also hereby caused, is causing, and will continue to cause

Globefill serious and irreparable damage unless enjoined by this Court.

33. Upon information and belief, the aforesaid acts of copyright infringement

have been undertaken with knowledge of Globefill’s exclusive rights to its copyright and

are willful.

COUNT IV: PATENT INFRINGEMENT



35. Globefill is the lawful patent holder of design contained in the ’360 Patent.

36. Upon information and belief, Defendant has copied and continues to copy

Globefill’s skull-shaped bottle design contained in the ’360 Patent for its cocktail mix

and hot sauce packaging without license or authorization from Globefill in violation of 35

U.S.C. § 271(a).

37. By the aforesaid acts, Defendant has infringed and continues to infringe

the ’360 Patent by making, using, offering for sale, and/or selling throughout this district

and elsewhere in the United States and/or importing into this district and elsewhere in the

United States cocktail mixes and hot sauces contained in a skull-shaped bottle package

that is substantially similar to the design contained in the ’360 Patent.

38. By the acts alleged herein, Defendant has infringed Globefill’s ’360 Patent

in violation of 35 U.S.C. § 271(a), and Globefill is entitled to recover from Defendant the


8

damages sustained by Globefill as a result of Defendant’s infringement of Globefill’s

’360 Patent allowable under 35 U.S.C. § 284.

39. By the acts alleged herein, Defendant has also caused, is causing, and will

continue to cause Globefill serious and irreparable damage unless enjoined by this Court.

40. Upon information and belief, the aforesaid acts of patent infringement have

been undertaken with knowledge of Globefill’s exclusive rights to its ’360 patent and are

willful.

JURY TRIAL DEMAND

41. Plaintiff demands a trial by jury on all counts so triable.

PRAYER FOR RELIEF

WHEREFORE, Globefill requests that this Court enter judgment against

Defendant as follows:

A. Adjudicating that Defendant has infringed Globefill’s federally

registered trade dress, copyright, and issued design patent;

B. Enjoining Defendant, along with its officers, agents, servants,

employees, attorneys, confederates, and all other persons in active concert or

participation with Defendant to whom notice of the injunction is given by personal

service or otherwise, at first preliminarily, and thereafter permanently, from

making any use of any colorable imitation of Globefill’s skull-shaped bottle as

covered by Globefill’s registered trade dress, copyright, and issued design patent;

C. Ordering Defendant to recall all goods, advertisements and

promotional materials comprising, associated with, bearing or packaged in a skull-


9

shaped bottle, that is deemed to be an infringement of Globefill’s registered trade

dress, copyright, and/or issued patent, from their present locations, including, but

not limited to, locations owned by others;

D. Awarding that Defendant pay damages to Globefill adequate to

compensate Globefill for Defendant’s past infringement of Globefill’s federally

registered trade dress, copyright, and the ’360 Patent and any continuing or future

infringement through the date such judgment is entered, including interest, costs,

expenses;

E. Ordering an accounting of all infringing acts including, but not

limited to, those acts not presented at trial;

F. Declaring that this case is exceptional under 15 U.S.C. § 1117(b)

and 35 U.S.C. § 285 and awarding of reasonable attorneys’ fees, costs, and

disbursements incurred in this action; and

G. Awarding Globefill such further relief at law or in equity as the

Court deems just and proper.


10

Dated: November 17, 2014 GREENE ESPEL PLLP

s/ Jeanette M. Bazis

Jeanette M. Bazis, Reg. No. 255646

X. Kevin Zhao, Reg. No. 391302

222 South Ninth Street, Suite 2200

Minneapolis, MN 55402

[email protected]

[email protected]

(612) 373-0830

- and –

Mark H. Tidman (pro hac vice admission pending)

John H. Weber (pro hac vice admission pending)

Kelu L. Sullivan (pro hac vice admission pending)

BAKERHOSTETLER

Washington Square, Suite 1100

1050 Connecticut Avenue, NW

Washington, DC 20036-5304

[email protected]

[email protected]

[email protected]

(202) 861-1500

Attorneys for Plaintiff Globefill Inc.


EXHIBIT A

CASE 4:14-cv-04776 Document 1-1 Filed 11/17/14 Page 1 of 21

EXHIBIT B


EXHIBIT C


EXHIBIT D


EXHIBIT E


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© 2014 Target Brands, Inc. Target, the Bullseye Design and Bullseye Dog are trademarks of Target Brands, Inc. All rights reserved.

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kitchen patio and garden furniture electronics toys health and beauty sports

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view mobile version

Target stores

find a store

clinic

optical

pharmacy

photo

portrait studio

about Target

company info & press

careers

investor relations

corporate responsibility

affiliates

A Bullseye View

team member services

Bullseye Shop

advertise with us

ways to save

weekly ads

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JS 44 (Rev. 12/12) CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFF DEFENDANT Globefill Incorporated

333 Eglinton Avenue East Tortonto, Ontario M4P 1L7 Canada

Maud Borup, Inc. 2500 Highway 88, Ste 212 Minneapolis, Minnesota 55418

(b) County of Residence of First Listed Plaintiff Toronto, Ontario, Canada County of Residence of First Listed Defendant Hennepin County, Minnesota

(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)

Jeanette M. Bazis X. Kevin Zhao GREENE ESPEL PLLP 222 South Ninth Street, Suite 2200 Minneapolis, MN 55402 [email protected]; [email protected] (612) 373-0830 - and - Mark H. Tidman (pro hac vice admission pending)

John H. Weber (pro hac vice admission pending)

Kelu L. Sullivan (pro hac vice admission pending)

BAKERHOSTETLER

Washington Square, Suite 1100

1050 Connecticut Avenue, NW Washington, DC 20036-5304

[email protected]; [email protected]; [email protected]

(202) 861-1500

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only) and One Box for Defendant) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF

Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act

120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 400 State Reapportionment

130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 410 Antitrust

140 Negotiable Instrument Liability 367 Health Care/ 430 Banks and Banking

150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 450 Commerce

& Enforcement of Judgment Slander Personal Injury 820 Copyrights 460 Deportation

151 Medicare Act 330 Federal Employers’ Product Liability 830 Patent 470 Racketeer Influenced and

152 Recovery of Defaulted Liability 368 Asbestos Personal 840 Trademark Corrupt Organizations

Student Loans 340 Marine Injury Product 480 Consumer Credit

(Excludes Veterans) 345 Marine Product Liability LABOR SOCIAL SECURITY 490 Cable/Sat TV

153 Recovery of Overpayment Liability PERSONAL PROPERTY 710 Fair Labor Standards 861 HIA (1395ff) 850 Securities/Commodities/ of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud Act 862 Black Lung (923) Exchange

160 Stockholders’ Suits 355 Motor Vehicle 371 Truth in Lending 720 Labor/Management 863 DIWC/DIWW (405(g)) 890 Other Statutory Actions

190 Other Contract Product Liability 380 Other Personal Relations 864 SSID Title XVI 891 Agricultural Acts

195 Contract Product Liability 360 Other Personal Property Damage 740 Railway Labor Act 865 RSI (405(g)) 893 Environmental Matters

196 Franchise Injury 385 Property Damage 751 Family and Medical 895 Freedom of Information

362 Personal Injury - Product Liability Leave Act Act

Medical Malpractice 790 Other Labor Litigation 896 Arbitration

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 791 Employee Retirement FEDERAL TAX SUITS 899 Administrative Procedure

210 Land Condemnation 440 Other Civil Rights Habeas Corpus: Income Security Act 870 Taxes (U.S. Plaintiff Act/Review or Appeal of

220 Foreclosure 441 Voting 463 Alien Detainee or Defendant) Agency Decision

230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS—Third Party 950 Constitutionality of

240 Torts to Land 443 Housing/ Sentence 26 USC 7609 State Statutes

245 Tort Product Liability Accommodations 530 General

290 All Other Real Property 445 Amer. w/Disabilities -

535 Death Penalty IMMIGRATION

Employment Other: 462 Naturalization Application -

446 Amer. w/Disabilities -

540 Mandamus & Other 465 Other Immigration

Other 550 Civil Rights Actions

448 Education 555 Prison Condition

560 Civil Detainee -

Conditions of

Confinement


605421255.1

V. ORIGIN (Place an “X” in One Box Only)

Transferred from Another District (specify)

1 Original Proceeding

2 Removed from State Court

3 Remanded from Appellate Court

4 Reinstated or Reopened

5 6 Multidistrict Litigation

VI. CAUSE OF

ACTION

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

15 U.S.C. §§ 1114(1) and 1125(a); 17 U.S.C. § 101 et seq.; and 35 U.S.C. § 1 et seq.

Brief description of cause: Trademark, Copyright and Design Patent Infringement

VII. REQUESTED IN

COMPLAINT:

CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P.

DEMAND $ CHECK YES only if demanded in complaint:

According to proof JURY DEMAND: Yes No

VIII. RELATED CASE(S)

IF ANY

None. (See instructions):

JUDGE DOCKET NUMBER DATE SIGNATURE OF ATTORNEY OF RECORD

11/17/2014 s/ Jeanette M. Bazis

FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

JS 44 Reverse (Rev. 12/12)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet


605421255.1

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as

required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is

required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of

Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use

only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and

then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at

the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In

land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment,

noting in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"

in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.

United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.

United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment

to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes

precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the

citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity

cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark

this section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is

sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more

than one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.

When the petition for removal is granted, check this box.

Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing

date.

Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or

multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.

When this box is checked, do not check (5) above.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional

statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket

numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.


Globefill v. Maud Borup - Complaint

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