KFC Piedra Suit

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 1 of 12 Page ID #:1
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Marc E. Hankin (SBN 170505)

Marc@hankinpatentlaw.com
HANKIN PATENT LAW, APC
12400 Wilshire Boulevard, Suite 1265
Los Angeles, CA 90024
Tel: (310) 979-3600
Fax: (310) 979-3603
Sara B. Poster (SBN 244838)
sara.poster@gmail.com
THE LAW OFFICE OF SARA B. POSTER
433 N. Camden Drive, Suite 400
Beverly Hills, CA 90210
Tel: (323) 380-8342
Attorneys for Plaintiffs,
FELIPA PIEDRA, DBA EL
TAQUERIA AMIGO
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA
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FELIPA PIEDRA, DBA EL TAQUERIA

AMIGO,
Plaintiff,
Case No.: 8:16-CV-1090
COMPLAINT FOR:
vs.
KFC CORPORATION, YUM! BRANDS,
INC., and DOES 1-5, inclusive,
Defendants.
1. TRADEMARK INFRINGEMENT 15
U.S.C. 1114;
2. FALSE DESIGNATION OF ORIGIN
15 U.S.C. 1125;
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3. TRADEMARK DILUTION 15 U.S.C.

1125(c);
4. TRADEMARK DILUTION Cal. Bus. &
Prof. Code 14247;
5. UNFAIR COMPETITION Cal. Bus. &
Prof. Code 17200 et seq.; AND
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6. DECLARATORY JUDGMENT.
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DEMAND FOR JURY TRIAL

COMPLAINT - 1
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Plaintiff FELIPA PIEDRA, DBA TAQUERIA EL AMIGO (TEA), by her attorneys,

and as for her complaint against Defendants KFC CORPORATION (KFC), a Delaware
corporation, and YUM! BRANDS, INC. (YUM), a North Carolina corporation, (collectively,
Defendants) alleges as follows:
JURISDICTION AND VENUE
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TEA files this action for trademark infringement, false designation of origin, and
trademark dilution under the Lanham Trademark Act of 1946, 15 U.S.C. 1051 et seq. (the
Lanham Act), and related claims of declaratory judgment under Federal law, as well as unfair
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competition and trademark dilution under California law.
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jurisdiction over the Federal trademark infringement, false designation of origin and false
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advertising, and trademark dilution claims pursuant to 28 U.S.C. 1121(a), 1331, 1338(a).
2.
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This Court has subject matter
This Court has subject matter jurisdiction over the remaining claims pursuant to 28
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U.S.C. 1367 as those claims arise from and are related to the same set of facts as TEAs Federal
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claims.
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3.
This Court has personal jurisdiction over Defendants based on the fact that
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Defendants conduct business within this district, and the acts complained of occurred in this
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district.
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4.
Venue is proper in this district pursuant to 28 U.S.C. 1391 because the claims
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asserted in this action arise out of wrongful acts by Defendants within this district and Defendants
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are subject to personal jurisdiction in this district at the time the action is commenced.
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THE PARTIES
5.
Plaintiff TEA is and at all times mentioned herein was a sole proprietorship and
restaurant existing in and doing business Santa Ana, a city located in Orange County, California.
6.
Defendant KFC is, and at all times herein mentioned was, a corporation duly
organized and existing under the laws of Delaware, with its principal place of business in
Louisville, Kentucky.
KFC operates numerous restaurants throughout California, including
Orange County, advertises extensively in California, and maintains a registered agent in Los
COMPLAINT - 2
Angeles.
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organized and existing under the laws of North Carolina, with its principal place of business in
Louisville, Kentucky. YUM is the parent company of KFC.
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Defendant YUM is, and at all times herein mentioned was, a corporation duly
TEA is unaware of the true names and capacities of Defendants sued herein as
DOES 1 through 5, inclusive, and therefore sues these Defendants by such fictitious names. TEA
will amend this complaint to allege their true names and capacities when ascertained. TEA is
informed and believes and thereon alleges that each of the fictitiously named Defendants is
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responsible in some manner for the wrongs alleged herein, that TEAs injuries were proximately
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caused by such Defendants, and that at all relevant times each was the agent and servant of the
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other Defendants and was acting within the course and scope of said agency and employment.
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These fictitiously named Defendants along with the Defendants named above are referred to
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collectively herein as Defendants.
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FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

A. TEAs Trademark Rights
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9.
TEA was established in 1988 in Orange County, California. Since its inception,
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TEA has served traditional Mexican cuisine to many consumers in the Orange County, California
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area.
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10.
TEA is the owner of a Trademark that contains the Spanish language slogan PARA
CHUPARSE LOS DEDOS (the Slogan) and design elements including a man wearing a
sombrero, sandals, and an apron who is carrying Mexican food (the TEA Mark). Several cactus
plants are located to his left, and the restaurants name, Taqueria El Amigo, is featured in the
shape of a convex curve at the top. The following is an image of the TEA Mark:
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COMPLAINT - 3
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TEA first applied to register the TEA Mark with the U.S. Patent and Trademark
Office (USPTO) in 2006, and successfully registered the TEA Mark in 2007 as U.S. Federal
Trademark Registration No. 3273249 for providing food and drink, namely, restaurant services.
Shortly after Trademark Registration No. 3273249 was cancelled due to a misunderstanding of the
renewal process, TEA re-applied for Registration of the TEA Mark in 2014, ultimately resulting
in U.S. Federal Trademark Registration No. 4767416 for Providing of food and drink.
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Since TEA first opened its doors, it has continuously used the TEA Mark and
Spanish language slogan PARA CHUPARSE LOS DEDOS. The Slogan literally translates into
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the English language as either To suck your fingers or To lick your fingers. During these
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many years of use, the Slogan has served as TEAs signature identifier that distinguishes and
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differentiates it from other restaurants and businesses in the market, which is very crowded with
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Mexican restaurants due to the large population of Hispanics in Southern California. TEA has
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used the Slogan at all times both before and since registering the TEA Mark in connection with all
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of its sales, promotion, and advertising efforts. Such uses include prominently featuring the slogan
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on restaurant signage, menus, flyers, radio and magazine advertisements, business cards, banners,
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its website (http://www.taqueriaelamigo.net), and TEA-themed apparel and uniforms. TEA has
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spent substantial amounts of funds in connection with these efforts over the years.
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TEA has also used the Slogan in connection with its active involvement in the
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community to further promote its brand, including its participation in food donations to local
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churches and schools.
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As a result of these efforts, TEAs customers and the general public in Orange
County have come to associate the Slogan exclusively with TEA and recognize TEA as an
established and successful Mexican restaurant. The Slogan and the goodwill associated therewith
is thus a valuable asset of TEA and a primary marker of the source and origin of TEAs services.
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B. Defendants Infringe TEAs Trademark Rights

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15.
On April 16, 2015, KFC filed two U.S. Federal Trademark 1B Intent-To-Use
Applications with the USPTO: (1) PARA CHUPARSE LOS DEDOS for Restaurant Services
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(U.S. Federal Trademark Serial No. 86599475) and (2) SIEMPRE EST PARA CHUPARSE LOS
DEDOS for Restaurant Services (U.S. Federal Trademark Serial No. 86599482) (collectively
the KFC Applications).
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The KFC Trademark Applications received Final Rejections from the USPTO on
Feb 29, 2016. The USPTO cited the TEA Mark as a bar to the KFC Applications, preventing KFC
from registering the slogans with the USPTO, because there was a likelihood of confusion in the
marketplace and the minds of the purchasing public.
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Despite the USPTOs rejection of the KFC Applications, in or around May 2015,
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Defendants decided anyway to proceed to launch a new marketing campaign to target Hispanic
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consumers entitled Para Chuparse Los Dedos with the assistance of Scopecchio Advertising.
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Through this campaign, which has continued up to the present, Defendants have intentionally
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traded on TEAs goodwill by featuring the slogan Para Chuparse Los Dedos in television,
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digital, radio, out-of home (OOH) marketing, and other forms of advertising throughout Orange
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County and nationally. The television ads have appeared on numerous national stations, including
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Univision, Galavision, UniMas, Telemundo, Fox Deportes, ESPN Deportes, and Mun2. As
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Defendants are undoubtedly aware, this advertising campaign features the exact same Spanish
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language slogan as that protected by the TEA Mark.
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TEA is informed and believes and thereon alleges that, as a result of Defendants
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appropriation and use of its Slogan in such an extensive advertising campaign, Defendants have
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reaped tremendous financial profits and gains, while TEA has suffered financial losses.
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Defendants have never requested TEAs permission to make use of the Slogan, and
TEA has never authorized Defendants to do so. As such, Defendants use of the Slogan is in
complete disregard of TEAs rights to control the TEA Mark.
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FIRST CLAIM FOR RELIEF
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(Trademark Infringement 15 U.S.C. 1114)

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TEA incorporates herein by reference the allegations of the preceding paragraphs
as though fully set forth herein.

COMPLAINT - 5
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Defendants have wrongfully used and are continuing to use the slogan PARA
CHUPARSE LOS DEDOS, which is identical to the Slogan protected by the TEA Mark to
promote, market, advertise, and sell their services, which are virtually identical to the services
offered in conjunction with the TEA Mark.
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Defendants wrongful use of the Slogan is likely to cause, has caused, and will
likely continue to confuse and misdirect TEAs customers and the consuming public.
By
appropriating TEAs Registered Slogan to advertise competitive foods in the same market in which
TEA has done business using the Slogan for almost thirty years, it is highly likely that the public
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will perceive Defendants use as authorized, sponsored, licensed, or approved by TEA, or
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otherwise affiliated, associated, or connected with TEAs commercial and business activities.
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Defendants have acted with knowledge of TEAs ownership of the Slogan and with
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deliberate intention or willful blindness to unfairly reap the benefit of TEAs goodwill associated
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with its Mark.
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Defendants conduct constitutes willful and exceptional trademark infringement in
violation of the Lanham Act.

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TEA is informed and believes and thereon alleges that Defendants have generated
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and will continue to generate substantial profits and gains to which they are not entitled in law or
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equity unless enjoined by this Court.
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causing damage to TEA in an amount to be proven at trial, as well as irreparable injury to the
goodwill and reputation associated with the Mark. TEA has no adequate remedy at law.
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SECOND CLAIM FOR RELIEF
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Defendants conduct has injured and, unless restrained, will continue to injure TEA,
(False Designation of Origin 15 U.S.C. 1125)

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The inherently distinctive quality of TEAs Slogan, which is protected by the TEA
Mark, has achieved a high level of consumer recognition and serves to identify and distinguish
COMPLAINT - 6
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TEA as a restaurant offering quality traditional Mexican cuisine.

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Defendants use of the Spanish language Slogan to promote, advertise, market, and
sell their services, particularly to the Hispanic community in and around TEAs home market, is
intended and is likely to cause confusion, mistake, and deception among consumers and the public
as to the source, origin, sponsorship, or affiliation of Defendants services, and is intended, and is
likely to cause consumers and the public to mistakenly believe that Defendants services have been
authorized, sponsored, licensed, or approved by TEA, or are otherwise affiliated, associated, or
connected with TEA.
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Defendants have acted in complete disregard of TEAs right to control the TEA
Mark, and their conduct constitutes false designation of origin in violation of the Lanham Act.
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Defendants conduct has injured and, unless restrained, will continue to injure TEA,
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causing damage to TEA in an amount to be proven at trial, as well as irreparable injury to the
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goodwill and reputation associated with the Mark. TEA has no adequate remedy at law
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THIRD CLAIM FOR RELIEF
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(Trademark Dilution 15 U.S.C. 1125(c))
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TEA has used the Mark continuously for almost thirty years. During this time, the
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Mark, and particularly the Slogan, has achieved substantial public recognition among the public
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in the Orange County, California region and is thus famous within TEAs local market.
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34.
Defendants have used in commerce in connection with the sale of their services the
exact same Spanish language slogan as that is protected by the TEA Mark, which is likely to cause,
and likely has caused actual confusion or mistake as to the affiliation, connection, or association
between Defendants and TEA, or as to the source, origin, sponsorship, or affiliation of Defendants
services and those of TEA.
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TEA is informed and believes that Defendants conduct began long after the TEA
Mark became famous in its local market and that Defendants have acted deliberately, willfully,
COMPLAINT - 7
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and knowingly, with blatant disregard for the rights of TEA, as evidenced by its Registered
Trademark and almost three decades of usage.
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Defendants conduct has diluted and continues to dilute the unique and distinctive
Slogan that is protected by the TEA Mark. Such conduct violates the Lanham Act, has injured
and, unless restrained, will continue to injure TEA, causing damage to TEA in an amount to be
proven at trial, as well as irreparable injury to the goodwill and reputation associated with the
Mark. TEA has no adequate remedy at law.
FOURTH CLAIM FOR RELIEF
(Trademark Dilution Cal. Bus. & Prof. Code 14247)
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The TEA Mark is distinctive in the Orange County, California region by virtue of
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its inherent and acquired distinctiveness, extensive use in said region, and the extensive advertising
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and promotional activity TEA has conducted in said region.
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As a result of the inherent and acquired distinctiveness of the TEA Mark, and
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particularly the Slogan, its extensive use in the Orange County, California region, and the extensive
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advertising of the Mark in said region, the Mark has come to be widely recognized by the general
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public in said region as the primary designation of TEAs services.
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40.
Defendants conduct constitutes dilution to the TEA Mark and injury to TEAs
business reputation in violation of California Business and Professions Code 14247.

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TEA is informed and believes that Defendants conduct began long after TEAs
Mark became famous in its local market and that Defendants have acted deliberately, willfully,
and knowingly.
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As a proximate result of Defendants conduct, TEA has been damaged, and will
continue to be damaged unless Defendants are enjoined under California Business and Professions
Code Section 14247 from using the Slogan that is protected by the TEA Mark. TEA has no
adequate remedy at law for said damage.
COMPLAINT - 8
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Defendants conduct was and is extreme, outrageous, fraudulent, and was
undertaken in reckless disregard of TEAs rights, as evidenced, inter alia, by its Registered
Trademark. Such conduct supports an award of exemplary and punitive damages in an amount
sufficient to punish and make an example of Defendants and to deter them from similar conduct
in the future.
FIFTH CLAIM FOR RELIEF
(Unfair Competition Cal. Bus. & Prof. Code 17200, et seq.)
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TEA owns and enjoys common law trademark rights to the Slogan, both in
California and throughout the United States.

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Defendants conduct in appropriating the Slogan, which is protected by the TEA
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Mark, for their own use and benefit, in complete disregard of TEAs rights and at TEAs expense,
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is unlawful, unfair, and fraudulent and thus constitutes unfair competition pursuant to California
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Business and Professions Code 17200.
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As a proximate result of Defendants conduct, TEA has been damaged, and will
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continue to be damaged unless Defendants are enjoined from using the Slogan that is protected by
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the TEA Mark. TEA has no adequate remedy at law for said damage.
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48.
Defendants conduct was extreme, outrageous, fraudulent, and was undertaken in
reckless disregard of TEAs rights. Such conduct supports an award of exemplary and punitive
damages in an amount sufficient to punish and make an example of Defendants and to deter them
from similar conduct in the future.
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SIXTH CLAIM FOR RELIEF
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(Declaratory Judgment 28 U.S.C. 2201, 2202)

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Pursuant to 28 U.S.C. 2201 and 2202, TEA seeks a declaratory judgment,

COMPLAINT - 9
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declaring that Defendants are not entitled to registration of any Trademarks incorporating the
Slogan, or any use of the Slogan, or any colorable imitation thereof.
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TEA is the nationwide senior user of its Mark, including its Slogan, in connection
with its services, as compared to Defendants and their use of TEAs Slogan.
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The slogans that are the subject of Defendants now finally rejected Trademark
Application Serial Nos. 86599475 and 86599482 are being used by Defendants in an unlawful
manner as set forth more fully above despite TEAs senior use and priority of right.
PRAYER FOR RELIEF
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WHEREFORE, TEA prays for judgment against Defendants as follows:
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1.
Granting preliminary and permanent injunctive relief restraining and enjoining
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Defendants, their officers, agents, employees, attorneys, and all those persons or entities in
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participation or concert with them from:
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(a) Using the slogan PARA CHUPARSE LOS DEDOS or any other elements of
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the Mark, or any confusingly similar item, to sell, offer for sale, advertise,
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promote, or market its services;
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(b) Engaging in any other conduct which falsely represents or has the effect of
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falsely representing that Defendants services are licensed by, authorized by,
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provided by, sponsored by, or in any other way associated with TEA;
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(c) Engaging in any other conduct constituting unfair competition with TEA, or
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acts or practices that deceive consumers or the public as to the source or origin
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of TEAs slogan PARA CHUPARSE LOS DEDOS or any other elements
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associated with the Mark;
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(d) Engaging in any other conduct that will dilute the distinctiveness and
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uniqueness of the Mark;

2.
Ordering Defendants to deliver to TEA for destruction and/or certify that
Defendants themselves have destroyed any and all advertising, promotional, and marketing
materials or the like in their possession, custody, or control that Defendants have used or have the
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ability in the future to use in violation of TEAs Trademark Rights;

3.
Ordering Defendants to file with this Court and serve on TEA within thirty (30)
days after entry of the injunction a report in writing under oath setting forth in detail the manner
and form in which Defendants have complied with the injunction;
4.
Ordering Defendants to provide an accounting to TEA for any and all profits, gains,
and advantages derived by their unlawful acts complained of herein;

5.
Awarding TEA all of Defendants profits and all damages sustained by TEA as a
result of Defendants unlawful acts complained of herein, and such other compensatory damages
as the Court determines to be fair and appropriate pursuant to 15 U.S.C. 1117(a);
6.
Awarding TEA treble damages in the amount of Defendants profits for willful and
exceptional infringement pursuant to 15 U.S.C. 1117(b);

7.
Awarding attorneys fees, as well as costs and disbursements, pursuant to 15 U.S.C.
1117(b);
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Awarding TEAs statutory damages pursuant to 15 U.S.C. 1117(c);
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9.
A declaratory judgment declaring that Defendants are not entitled to registration or
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use of the Spanish language Slogan.

10.
Awarding TEA punitive and exemplary damages sufficient to penalize and make
an example of Defendants and to deter them from similar such conduct in the future;
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Such other and further relief as the Court deems just and proper.
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Date: June 10, 2016
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/Sara B. Poster/
___________________________________
Sara B. Poster
Date: June 10, 2016
/Marc E. Hankin/
___________________________________
Marc E. Hankin
Attorneys for Plaintiff
COMPLAINT - 11
DEMAND FOR JURY TRIAL
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Plaintiff TEA hereby demands a trial by jury of all issues so triable in this action.
/Sara B. Poster/
___________________________________
Sara B. Poster
Date: June 10, 2016
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Date: June 10, 2016
/Marc E. Hankin/
___________________________________
Marc E. Hankin
Attorneys for Plaintiff
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COMPLAINT - 12

KFC Piedra Suit

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Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 1 of 12 Page ID #:1

Marc E. Hankin (SBN 170505)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

FELIPA PIEDRA, DBA EL TAQUERIA

Case No.: 8:16-CV-1090

3. TRADEMARK DILUTION 15 U.S.C.

DEMAND FOR JURY TRIAL

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 2 of 12 Page ID #:2

Plaintiff FELIPA PIEDRA, DBA TAQUERIA EL AMIGO (TEA), by her attorneys,

competition and trademark dilution under California law.

This Court has subject matter

KFC operates numerous restaurants throughout California, including

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 3 of 12 Page ID #:3

collectively herein as Defendants.

FACTUAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 4 of 12 Page ID #:4

churches and schools.

B. Defendants Infringe TEAs Trademark Rights

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 5 of 12 Page ID #:5

language slogan as that protected by the TEA Mark.

FIRST CLAIM FOR RELIEF

(Trademark Infringement 15 U.S.C. 1114)

TEA incorporates herein by reference the allegations of the preceding paragraphs

as though fully set forth herein.

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 6 of 12 Page ID #:6

will perceive Defendants use as authorized, sponsored, licensed, or approved by TEA, or

with its Mark.

Defendants conduct constitutes willful and exceptional trademark infringement in

violation of the Lanham Act.

equity unless enjoined by this Court.

SECOND CLAIM FOR RELIEF

(False Designation of Origin 15 U.S.C. 1125)

TEA incorporates herein by reference the allegations of the preceding paragraphs

as though fully set forth herein.

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 7 of 12 Page ID #:7

TEA as a restaurant offering quality traditional Mexican cuisine.

THIRD CLAIM FOR RELIEF

(Trademark Dilution 15 U.S.C. 1125(c))

TEA incorporates herein by reference the allegations of the preceding paragraphs

as though fully set forth herein.

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 8 of 12 Page ID #:8

(Trademark Dilution Cal. Bus. & Prof. Code 14247)

TEA incorporates herein by reference the allegations of the preceding paragraphs

as though fully set forth herein.

and promotional activity TEA has conducted in said region.

public in said region as the primary designation of TEAs services.

business reputation in violation of California Business and Professions Code 14247.

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 9 of 12 Page ID #:9

Defendants conduct was and is extreme, outrageous, fraudulent, and was

(Unfair Competition Cal. Bus. & Prof. Code 17200, et seq.)

TEA incorporates herein by reference the allegations of the preceding paragraphs

as though fully set forth herein.

California and throughout the United States.

Defendants conduct in appropriating the Slogan, which is protected by the TEA

Business and Professions Code 17200.

Defendants conduct was extreme, outrageous, fraudulent, and was undertaken in

SIXTH CLAIM FOR RELIEF

(Declaratory Judgment 28 U.S.C. 2201, 2202)

TEA incorporates herein by reference the allegations of the preceding paragraphs

as though fully set forth herein.

Pursuant to 28 U.S.C. 2201 and 2202, TEA seeks a declaratory judgment,

Case 8:16-cv-01090-CJC-KES Document 1 Filed 06/10/16 Page 10 of 12 Page ID #:10