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Case 1:15-cv-06298-RMB-KMW Document 1 Filed 08/19/15 Page 1 of 18 PageID: 1

Firouzeh Nur-Vaccaro, Esq.


Chintan Desai, Esq.
KIM WINSTON LLP
1307 White Horse Road, Suite 601
Voorhees, NJ 08043
(856) 520-8988
firouzehnurvaccaro@kimwinston.com
chintandesai@kimwinston.com
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
-------------------------------x
:
MARINOS PIZZA, INC.,
:
:
Plaintiff,
:
:
v.
:
:
:
JAMES MARINO, MARINOS BISTRO :
TO GO, LLC, MARINOS BISTRO TO
:
GO FRANCHISING, LLC, MARINOS
:
BISTRO TO GO IP, LLC, and MARINOS :
BISTRO TO GO CHERRY HILL, LLC,
:
:
Defendants. :
:
:
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Civil Action No.

COMPLAINT AND DEMAND


FOR TRIAL BY JURY

Plaintiff Marinos Pizza, Inc. (Plaintiff or Marinos Pizza) brings this action
for trademark infringement, unfair competition and false designation of origin, and
related claims under New Jersey law for common law trademark infringement and unfair
competition against Defendants James Marino, Marinos Bistro To Go, LLC, Marinos
Bistro To Go Franchising, LLC, Marinos Bistro To Go IP, LLC, and Marinos Bistro To
Go Cherry Hill, LLC (collectively Defendants), and alleges as follows:

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THE PARTIES
1.

Plaintiff Marinos Pizza, Inc. is a corporation organized under the laws of

the state of New Jersey with principal offices located at 110 North Black Horse Pike,
Runnemede, New Jersey 08078. Marinos Pizza, Inc. owns the trademark MARINOS
PIZZA used in connection with its restaurant Marinos Pizza located at 110 North Black
Horse Pike, Runnemede, New Jersey 08078.
2.

Upon information and belief, Defendant James Marino is an individual

with an address at 492 Haddon Avenue, Collingswood, New Jersey 08108 and is a citizen
of that state. Upon information and belief, James Marino is part of the team behind the
restaurant services offered in connection with the MARINOS BISTRO TO GO
designation and is the co-applicant for the trademark application for the designation
MARINOS BISTRO TO GO filed with the U.S. Patent & Trademark Office
(USPTO).
3.

Upon information and belief, Defendant Marinos Bistro To Go, LLC, is a

privately-held limited liability company organized under the laws of the state of New
Jersey with principal offices located at 492 Haddon Avenue, Collingswood, New Jersey
08108. Upon information and belief, Marinos Bistro To Go, LLC, is part of the team
behind the restaurant services offered in connection with the MARINOS BISTRO TO
GO designation.
4.

Upon information and belief, Defendant Marinos Bistro To Go

Franchising, LLC, is a privately-held limited liability company organized under the laws
of the state of New Jersey with principal offices located at 492 Haddon Avenue,
Collingswood, New Jersey 08108. Upon information and belief, Marinos Bistro To Go

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Franchising, LLC, is part of the team behind the restaurant services offered in connection
with the MARINOS BISTRO TO GO designation.
5.

Upon information and belief, Defendant Marinos Bistro To Go IP, LLC,

is a privately-held limited liability company organized under the laws of the state of New
Jersey with principal offices located at 492 Haddon Avenue, Collingswood, New Jersey
08108. Upon information and belief, Marinos Bistro To Go IP, LLC, is part of the team
behind the restaurant services offered in connection with the MARINOS BISTRO TO
GO designation.
6.

Upon information and belief, Defendant Marinos Bistro To Go Cherry

Hill, LLC, is a privately-held limited liability company organized under the laws of the
state of New Jersey with principal offices located at 492 Haddon Avenue, Collingswood,
New Jersey 08108. Upon information and belief, Marinos Bistro To Go Cherry Hill,
LLC, is part of the team behind the restaurant services offered in connection with the
MARINOS BISTRO TO GO designation.
JURISDICTION AND VENUE
7.

This Court has jurisdiction over the subject matter of this action pursuant

to 15 U.S.C. 1121 (Lanham Act) and 28 U.S.C. 1331 (federal question) and 28 U.S.C.
1338 (trademark and unfair competition). This Court has supplemental jurisdiction
over the claims arising under New Jersey state law pursuant to 28 U.S.C. 1367(a).
8.

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b)

and (c) because a substantial part of the events giving rise to Plaintiffs claims occurred
in this District, a substantial part of the property that is the subject of this action is

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situated in this District, and the Defendants reside and/or maintain their principal offices
in this District.
9.

This Court has personal jurisdiction over the Defendants because, upon

information and belief, Defendants are present and transacting business within this
District and are incorporated, and/or registered and/or authorized to conduct business in
the State of New Jersey.
10.

Upon information and belief, Defendants advertise, promote, and sell their

restaurant services bearing the MARINOS BISTRO TO GO designation through


Marinos Bistro To Go, 2010 Marlton Pike West, Cherry Hill, New Jersey, 08002, their
recently opened restaurant in Cherry Hill, and through Bistro di Marino, 492 Haddon
Avenue, Collingswood, New Jersey, 08108, their original restaurant.
INTRODUCTION
11.

This action is brought by Plaintiff under the Lanham Act, 15 U.S.C.

1125, and New Jersey state law, seeking injunctive and monetary relief relating to
Defendants use of the designation MARINOS BISTRO TO GO in connection with
the advertising, promotion and sale of its restaurant services.
12.

Plaintiff has adopted and used continuously, since prior to May 20, 2015,

the mark MARINOS PIZZA in connection with its restaurant that has operated in
Runnemede, NJ for over 40 years.
13.

Defendants adopted the confusingly similar MARINOS BISTRO TO

GO designation to identify their competing restaurant services, and offer their restaurant
services to the same consumers through the same channels of trade as Plaintiff offers its
restaurant services.

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14.

The use of the MARINOS BISTRO TO GO designation by Defendants

in connection with their restaurant services is likely to cause consumers and the trade to
wrongly associate Defendants restaurant services with Plaintiffs restaurant services,
causing the purchasing public to be confused or mistaken into believing that Defendants
restaurant services originate with, emanate from, or are approved, licensed, or sponsored
by Plaintiff, or that Defendants and their restaurant services are affiliated with Plaintiff.
15.

Absent injunctive relief, Defendants use of the MARINOS BISTRO TO

GO designation is likely to cause confusion, mistake, or deception among the parties


consumers, will dilute the MARINOS PIZZA mark, and will cause Plaintiff to suffer
irreparable injury for which there is no adequate remedy at law. Through this action,
Plaintiff seeks to protect its valuable trademark rights in its MARINOS PIZZA
trademark, and to prevent confusion among the consuming public.
FACTS COMMON TO ALL CLAIMS
Plaintiff Has Exclusive Rights to the MARINOS PIZZA Trademark
16.

Marinos Pizza restaurant, a corner pizzeria in Runnemede, New Jersey,

was founded in the winter of 1972 using the trademark MOMS PIZZA by Joseph and
Dominic Marino, two brothers from South Philly. The flour salesman and the high
school teacher learned as they went but turned to their mother Carmella for recipes that
became the foundation of this family-run South Jersey landmark.
17.

In 1974, Moms Pizza changed to Marinos Pizza.

18.

The underlying concept behind the preparation of their food was to use the

best ingredients and treat their customers like family. Despite the passage of time, this
important concept has remained the same.

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19.

Marinos Pizza and its predecessors in interest or related entities have

offered and promoted their restaurant services in connection with the MARINOS PIZZA
trademark since 1974. Marinos Pizza has developed a unique and well-known brand
through its high quality restaurant services.
20.

For over 40 years, Marinos Pizza has invested and continues to invest

substantial resources in promoting its goods and services in connection with the
MARINOS PIZZA trademarkspecifically including restaurant services.
21.

Throughout the years, Marinos Pizza has consistently received positive

reviews and recognition for its pizza, cheesesteak and other popular food items.
Marinos Pizza has been locally and nationally recognized for its restaurant services and
food items.
22.

In September 2013, Marinos Pizza restaurant was featured in Zagats 50

States, 50 Pizzas article highlighting truly standout pies in every state. Annexed
hereto and incorporated herein as Exhibit A is a true and correct copy of the zagat.com
article recognizing Marinos Pizza (http://www.zagat.com/b/50-state-50-pizzas).
23.

Marinos Pizza was recently honored by the New Jersey State Senate and

New Jersey General Assembly in recognition of its fortieth anniversary. Annexed hereto
and incorporated herein as Exhibit B is a true and correct copy of the Joint Legislative
Resolution recognizing and honoring Marinos Pizza.
24.

Marinos Pizza restaurant was recently recognized as having one of the

best cheesesteaks in South Jersey in the 2013 Best of South Jersey publication from the
Courier-Post newspaper. Annexed hereto and incorporated herein as Exhibit C is a true
and correct copy of the 2013 Best of South Jersey publication recognizing Marinos Pizza

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(http://www.courierpostonline.com/story/news/2014/11/09/courier-post-best-of-southjersey-2013/18764785/).
25.

As a result of Marinos Pizzas use and promotion of the MARINOS

PIZZA trademark in conjunction with its high quality goods and services, the
MARINOS PIZZA trademark has acquired a strong and favorable public recognition
and distinctiveness identifying Marinos Pizza as the source of high quality restaurant
services and associated goods, particularly in the area of southern New Jersey and the
greater Philadelphia, Pennsylvania area. Thus, Marinos Pizza enjoys valid and
subsisting trademark rights in its MARINOS PIZZA trademark.
26.

Through widespread acceptance and recognition, the MARINOS PIZZA

trademark enjoys tremendous goodwill and has become an asset of incalculable value as
a symbol for Marinos Pizzas restaurant services, which has been damaged and shall
continue to be damaged by the tortious actions of Defendants complained of herein.
DEFENDANTS INFRINGING ACTIVITIES
27.

Upon information and belief, long after Marinos Pizza began using its

MARINOS PIZZA trademark, Defendants commenced using the designation


MARINOS BISTRO TO GO in connection with the advertising, promotion, and sale
of their restaurant services that directly compete with Plaintiffs MARINOS PIZZA
restaurant services.
28.

Upon information and belief, Defendants advertise, promote, and sell their

restaurant services under the designation MARINOS BISTRO TO GO throughout the


United States, including by means of their restaurant in this District.

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29.

Marinos Pizza has never authorized Defendants to use the MARINOS

BISTRO TO GO designation, and Defendants adopted the designation without Marinos


Pizzas consent.
30.

Upon information and belief, Defendants James Marino and Marinos

Bistro To Go, LLC, jointly filed an application to register the trademark MARINOS
BISTRO TO GO & Design with the United States Patent and Trademark Office for
Restaurant franchising in International Class 35 and Cafe-restaurants in International
Class 43, Serial No. 86/097,999 (the MARINOS BISTRO TO GO Application).
31.

The MARINOS BISTRO TO GO Application was filed on October 22,

2013, based on an intent to use the mark in commerce. Upon information and belief,
Defendants began using the MARINOS BISTRO TO GO designation at their
restaurant Marinos Bistro to Go in early April 2015.
32.

The filing date of MARINOS BISTRO TO GO Application and the date

of actual use of the designation MARINOS BISTRO TO GO are both decades after
Marinos Pizzas date of first use of its MARINOS PIZZA trademark. As such,
Marinos Pizza has priority of use over the Defendants based on its prior common law
rights in the MARINOS PIZZA trademark and its use in commerce of the MARINOS
PIZZA trademark prior to October 22, 2013.
33.

On May 20, 2015, Plaintiff, through its attorneys, sent Defendants,

through their attorney of record for the MARINOS BISTRO TO GO Application, a letter
alerting Defendants to Marinos Pizzas prior rights in the mark MARINOS PIZZA and
the likelihood of confusion between Defendants MARINOS BISTRO TO GO
designation and Plaintiffs MARINOS PIZZA trademark. On May 27, 2015, Plaintiffs

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attorney received a phone call from Defendants attorney making it clear that Defendants
do not intend to change the name of their restaurant.
34.

Defendants use of the designation MARINOS BISTRO TO GO is

likely to cause confusion, mistake or deception as to the source or origin of their


restaurant services.
35.

The designation MARINOS BISTRO TO GO is likely to be confused

with the MARINOS PIZZA mark, because the designation and mark are similar in sound,
pronunciation, meaning, and overall commercial impression. The likelihood of confusion
is particularly high in this case as the identical term MARINOS is used prominently in
Plaintiffs mark and in Defendants designation. Defendants adoption and use of the
generic phrase BISTRO TO GO does not obviate the likelihood of confusion with
Plaintiffs MARINOS PIZZA mark.
36.

The designation MARINOS BISTRO TO GO is being used at the

Marinos Bistro To Go restaurant in Cherry Hill, NJ. According to Google Maps,


Plaintiffs MARINOS PIZZA restaurant and the location of Marinos Bistro To Go are
only 11.5 miles apart, approximately 20 minutes by car. See attached printout at Exhibit
D. As such, the designation MARINOS BISTRO TO GO is likely to be confused with
the MARINOS PIZZA mark because the mark and designation are for highly similar
restaurant take-out services offered in close geographic proximity.
37.

Plaintiff and Defendants offer very similar restaurant services. For

example, both offer Italian food, salads, pasta, sandwiches, and similar side items such as
French fries and soup. As such, Defendants use is likely to cause confusion, to cause

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mistake or to deceive consumers as to the origin, sponsorship, and approval of


Defendants products.
38.

Upon information and belief, Defendants restaurant services bearing the

MARINOS BISTRO TO GO designation are offered and sold in the same channels of
trade and to the same class of consumers as the MARINOS PIZZA restaurant services.
39.

As such, the purchasing public is likely to wrongly associate Defendants

restaurant services with Marinos Pizzas, and assume that restaurant services bearing the
designation MARINOS BISTRO TO GO emanate from, or are approved, licensed or
sponsored by Marinos Pizza, have the same source as Marinos Pizzas restaurant
services, or that Defendants are affiliated with Marinos Pizza.
40.

Defendants acts constitute trademark infringement of the MARINOS

PIZZA trademark. Defendants infringement is willful, with full knowledge of Plaintiffs


rights and interest in its MARINOS PIZZA trademark in connection with its restaurant
services.
41.

Defendants actions have been, and unless enjoined will continue to be, in

violation of federal and New Jersey state law governing trademark infringement and
unfair competition, and are causing and will continue to cause damage and immediate
and irreparable harm to Plaintiff, including lost revenues, loss of control over its
reputation and loss of goodwill.

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COUNT I
FALSE DESIGNATION OF ORIGIN AND UNFAIR COMPETITION
(15 U.S.C. 1125(a); Lanham Act 43(a))
42.

Plaintiff repeats and realleges each of the allegations set forth in

Paragraphs 1 through 41 above as though fully set forth herein.


43.

Defendants actions, as set forth above, are intended to or are likely to

confuse, mislead, or deceive consumers as to the origin, source, sponsorship, or


affiliation of Defendants restaurant services, or are intended or are likely to cause such
parties to believe in error that Defendants restaurant services have been authorized,
sponsored, approved, endorsed or licensed by Plaintiff, or that Defendants are in some
way affiliated with Plaintiff.
44.

By their unauthorized use of the MARINOS BISTRO TO GO

designation, Defendants have falsely designated the origin of their products and have
competed unfairly with Plaintiff, in violation of Section 43(a) of the Lanham Act, 15
U.S.C. 1125(a).
45.

Upon information and belief, Defendants have acted willfully and

deliberately and have profited and been unjustly enriched.


46.

By virtue of the foregoing, Defendants have caused Plaintiff to suffer

injuries for which it is entitled to recover compensatory damages in an amount to be


determined at trial.
47.

In addition, Defendants acts are causing and continue to cause Plaintiff

irreparable harm in the nature of lost sales and revenue, loss of control over its reputation
and loss of consumer goodwill.

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48.

This irreparable harm to Plaintiff will continue, without any adequate

remedy at law, unless and until Defendants unlawful conduct is enjoined by this Court.
49.

All of these aforementioned acts constitute false designation of origin and

unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
COUNT II
STATE TRADEMARK INFRINGEMENT
(N.J.S.A. 56:3-13.16)
50.

Plaintiff repeats and realleges each of the allegations set forth in

Paragraphs 1 through 49 above as though fully set forth herein.


51.

Defendants, without authorization from Plaintiff, have used and are

continuing to use a designation that is confusingly similar to Plaintiffs mark.


52.

The foregoing acts of Defendants are intended to cause, have caused, and

are likely to continue to cause confusion, mistake, and deception among consumers as to
whether Defendants restaurant services originate from, or are affiliated with, sponsored
by, or endorsed by Plaintiff.
53.

As a direct and proximate result of Defendants infringing activities,

Plaintiff has been or will be irreparably harmed and damaged. Plaintiffs remedies at law
are inadequate to compensate for this harm and damage.
54.

Upon information and belief, Defendants intend to continue their

infringing acts unless restrained by this Court.


55.

Defendants actions, as set forth above, and Defendants use of the

MARINOS BISTRO TO GO designation constitute or will constitute infringement of

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Plaintiffs MARINOS PIZZA mark in violation of N.J.S.A 56:3-13.16 and entitle


Plaintiff to an injunction against said use.
COUNT III
STATE UNFAIR COMPETITION
(N.J.S.A. 56:4-1 et seq.)
56.

Plaintiff repeats and realleges each of the allegations set forth in

Paragraphs 1 through 55 above as though fully set forth herein.


57.

The foregoing acts of Defendants constitute unfair competition in

violation of N.J.S.A. 56:4-1.


58.

Upon information and belief, Defendants have made and will continue to

make substantial profits and gains to which they are not entitled in law or equity.
59.

In addition, Defendants acts are causing and continue to cause Plaintiff

irreparable harm in the nature of lost sales and revenue, loss of control over its reputation
and loss of consumer goodwill.
60.

Defendants are liable to Plaintiff for all damages, whether direct or

indirect, for the misappropriation of Plaintiffs name, brand, trademark, reputation and
goodwill, which damages are subject to trebling.
61.

Upon information and belief, Defendants intend to continue their

infringing acts unless restrained by this Court.


62.

Defendants acts have damaged and will continue to damage Plaintiff, and

Plaintiff has no adequate remedy at law.

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COUNT IV
COMMON LAW TRADEMARK INFRINGEMENT AND UNFAIR
COMPETITION
63.

Plaintiff repeats and realleges each of the allegations set forth in

Paragraphs 1 through 62 above as though fully set forth herein


64.

Defendants acts constitute unfair competition in the form of trademark

infringement of Plaintiffs common law rights to exclusive use of the MARINOS PIZZA
mark, in that Plaintiffs mark is inherently distinctive, and thus protectable as a trademark
under common law.
65.

In the alternative, and as described above, Plaintiffs mark, if determined

to be a non-inherently distinctive mark, has acquired secondary meaning, in that Plaintiff


has been offering its restaurant services under the MARINOS PIZZA mark since 1974.
As a result, the MARINOS PIZZA mark has become associated with Plaintiffs
restaurant services in the public mind.
66.

Defendants use of the MARINOS BISTRO TO GO designation

without Plaintiffs consent and authorization is likely to cause confusion, or mistake, or


to deceive consumers as to the source, origin, sponsorship or affiliation of Defendants
restaurant services, and therefore constitutes common law trademark infringement and
unfair competition in violation of the common law of the State of New Jersey.
67.

By virtue of the foregoing, Defendants have caused Plaintiff to suffer

injuries for which it is entitled to recover compensatory damages. In addition,


Defendants acts are causing and continue to cause Plaintiff irreparable harm in the
nature of lost sales and revenue, loss of control over its reputation and loss of consumer

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goodwill. This irreparable harm to Plaintiff will continue, without any adequate remedy
at law, unless and until Defendants unlawful conduct is enjoined by this Court.
68.

Plaintiff has been and will continue to be harmed by Defendants conduct

in an amount to be determined at trial.


PRAYER FOR RELIEF
WHEREFORE, Plaintiff Marinos Pizza, Inc. respectfully requests that this Court
enter judgment against Defendants as follows:
A.

Preliminary and permanent injunctive relief enjoining and restraining

Defendants and their officers, directors, agents, servants, attorneys, successors, assigns,
employees, licensees, and all other persons in privity or acting in concert with them from
using orally, in writing, in connection with any product or in any media in the geographic
area of southern New Jersey or greater Philadelphia, PA, the MARINOS BISTRO TO
GO designation or any term, mark, logo, trade name, Internet domain name or any other
source identifier or symbol of origin that is confusingly similar to the MARINOS PIZZA
trademark;
B.

Finding that (1) Defendants have violated Section 43(a) of the Lanham

Act, 15 U.S.C. 1125(a); (2) Defendants have committed trademark infringement in


violation of N.J.S.A. 56:3-13.16; (3) Defendants have committed acts that constitute
unfair competition in violation of N.J.S.A. 56:4-1 et seq.; (4) Defendants have
committed acts of trademark infringement and unfair competition in violation of New
Jersey common law;

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C.

Order an accounting of all gains, profits, cost savings and advantages

realized by Defendants from their acts of trademark infringement, false designation of


origin and unfair competition;
D.

Award such damages as Plaintiff shall establish in consequence of

Defendants acts of trademark infringement, false designation of origin, and unfair


competition, including interest, and an award of three times the amount found as actual
damages to properly compensate Plaintiff for Defendants unlawful conduct pursuant to
15 U.S.C. 1117 and N.J.S.A. 56:3-13.16(d), 56:3-13.16(e) and 56:4-2.
E.

Award Plaintiff its costs and expenses, including its attorneys fees to the

full extent provided by Section 35 of the Lanham Act (15 U.S.C. 1117) and N.J.S.A.
56:3-13.16(d);
F.

Order that Defendants affirmatively and expressly abandon the

MARINOS BISTRO TO GO Application, Serial No. 86/097,999;


G.

Order Defendants to recall and deliver up for destruction any and all goods,

product packaging, promotional materials, advertisements and all other advertising and
promotional materials which bears the MARINOS BISTRO TO GO designation
pursuant to 15 U.S.C. 1117 and N.J.S.A. 56-3.16(d);
H.

Order that Defendants and their officers, directors, agents, servants,

attorneys, successors, assigns, employees, licensees, and all other persons in privity or
acting in concert with them take affirmative steps to dispel any actual confusion that
heretofore has been created by the trademark infringement described above;
I.

Order Defendants, pursuant to Section 34(a) of the Lanham Act, 15 U.S.C.

1116(a), to file with this Court and to serve on Plaintiff within thirty (30) days after

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service of an injunction, or such period as this Court may order, a report in writing under
oath setting forth the manner and form in which Defendants have complied with the
injunction; and
J.

Grant any such other and further relief as the Court deems just and proper.
DEMAND FOR JURY TRIAL

Plaintiff demands trial by jury.

Respectfully submitted,
Dated: August 19, 2015

/s Firouzeh Nur-Vaccaro_______________
Firouzeh Nur-Vaccaro, Esq.
Chintan Desai, Esq.
KIM WINSTON LLP
1307 White Horse Road, Suite 601
Voorhees, NJ 08043
Tel: (856) 520-8988
firouzehnurvaccaro@kimwinston.com
chintandesai@kimwinston.com
Attorneys for Plaintiff
MARINOS PIZZA, INC.

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CERTIFICATION PURSUANT TO L. CIV. R. 11.2


I certify that, to the best of my knowledge, this matter is not the subject of any
other action pending in any court, or of any pending arbitration or administrative
proceeding.
Respectfully submitted,
Dated: August 19, 2015

/s Firouzeh Nur-Vaccaro_____________
Firouzeh Nur-Vaccaro, Esq.
Chintan Desai, Esq.
KIM WINSTON LLP
1307 White Horse Road, Suite 601
Voorhees, NJ 08043
Tel: (856) 520-8988
firouzehnurvaccaro@kimwinston.com
chintandesai@kimwinston.com
Attorneys for Plaintiff
MARINOS PIZZA, INC.

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