John Ewing Co v. 707ranch - 707 Trademark Complaint PDF

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 1 of 16
IN THE UNITED STATES DISTRICT COURT

FOR DISTRICT OF COLORADO
JOHN EWING COMPANY
)
)
)
)
)
)
)
)
)
Plaintiff
vs.
707RANCH, L.L.C. d/b/a RANCH707
Defendant
COMPLAINT
Plaintiff, John Ewing Company (Plaintiff), by its undersigned attorneys, states the
following for its Complaint against Defendant, 707RANCH, L.L.C. d/b/a RANCH707
(Defendant):
NATURE OF THE CASE
1.
This is an action at law and in equity for trademark infringement under Section 32
of the Lanham Trademark Act, 15 U.S.C. 1114(1); unfair competition and false designation of
origin under Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a); deceptive trade practices
under the Colorado Consumer Protection Act, C.R.S. 6-1-101 et seq.; and common law unfair
competition and trademark infringement. Plaintiff seeks permanent injunctive relief and
damages.
2.
As described below, Defendant has used and continues to use trademarks that are
identical to or nearly identical to and are confusingly similar to, Plaintiffs well-known and
federally registered FORMULA 707 trademark (the FORMULA 707 Mark) in connection with
the marketing and sale of preparations for the care of animals, in particular horses.
3.
Plaintiff has not authorized Defendant to use its well-known FORMULA 707
Mark, or colorable imitations thereof, in connection with Defendants products. Defendants are
improperly trading on the goodwill, reputation and fame of Plaintiffs FORMULA 707 Mark
creating a likelihood of consumer confusion. Unless enjoined by the Court, Defendants will
continue to cause irreparable harm to Plaintiff.
PARTIES
4.
Plaintiff, John Ewing Company, is a Colorado corporation with a principal place
of business located at 401 North First Street, La Salle, Colorado.

5.
On information and belief, Defendant 707RANCH, L.L.C. d/b/a RANCH707 is
an Arizona limited liability company with its principal place of business located at 707 Quarter
Horse Lane, Camp Verde, Arizona 86322.
6.
the
United
On information and belief, Defendant advertises and sells its products throughout
States
by
way
of
its
online
retail
store
located
at
the
website
http://www.supplementsforhorses.com, and through dealers in Arizona, Idaho, Nevada, and Utah

and some of those dealers websites.
JURISDICTION AND VENUE
7.
This Court has subject matter jurisdiction of Plaintiffs federal claims under
Section 39 of the Lanham Act, 15 U.S.C. 1121, and under 28 U.S.C. 1331 and 1338. This
Court has jurisdiction over Plaintiffs related state and common law claims pursuant to 28 U.S.C.
1338 and 1367 and under principals of supplemental jurisdiction.
8.
This Court has personal jurisdiction over Defendant because Defendant
committed tortious acts or omissions in this State that give rise to at least part of the present
claims, has engaged in tortious acts or omissions outside of this State causing injury within this
State that give rise to at least part of the present claims, and derives substantial revenue from
interstate commerce, or has otherwise made or established contacts with this State sufficient to
permit the exercise of personal jurisdiction.
9.
Venue is proper in this judicial district pursuant to 28 U.S.C. 1391.

BACKGROUND
Plaintiffs FORMULA 707 Trademarks

10.
In 1958, Plaintiffs predecessor in interest adopted the now well-known
FORMULA 707 Mark for preparations for the care of animals, in particular horses. Since then,
Plaintiff has used the FORMULA 707 Mark in association with preparations for the care of
animals, in particular horses, and has expanded its family of FORMULA 707 products.
11.
Plaintiff continues to use the FORMULA 707 Mark on or in connection with the
sale of its goods. Plaintiffs use of the FORMULA 707 Mark has been valid and continuous and
has not been abandoned. Plaintiff has substantially invested in creating significant goodwill in
the FORMULA 707 Mark throughout the United States.
12.
Plaintiff prominently features the FORMULA 707 logo on its products, and its
advertising and marketing of its products.
As shown below, the 707 portion of the
FORMULA 707 logo is the dominant feature of the mark:
13.
Plaintiffs FORMULA 707 products oftentimes display indicia related to horses.
Examples of Plaintiffs FORMULA 707 products include those depicted below:
14.
Plaintiff owns the following non-exhaustive list of registrations on the Principal
Register of the United States Patent and Trademark Office:

U.S. Reg. No.
Trademark
Goods
3,683,185
FORMULA 707 GASTRO

ESSENTIALS
A nutritional feed supplement for horses (in

International Class 5)
3,735,192
FORMULA 707 HOOF

ESSENTIALS
Nutritional supplements (in International Class 5)
U.S. Reg. No.
Trademark
Goods
3,892,403
FORMULA 707
CALMING ESSENTIALS
Animal feed supplements (in International Class

5)
4,888,452
FORMULA 707
Antiseptic preparations; Dietary supplements for

human consumption; Poultices; Veterinary
preparations for treatment of nasal discharge in
horses; Vitamins; Vitamins and dietary food
supplements for animals (in International Class 5)
4,888,453
FORMULA 707
Non-medicated grooming preparations for horses,

namely, shampoos (in International Class 3)
4,888,454
FORMULA 707
PEAKCARE
Dietary supplements for horses (in International

Class 5)
The foregoing registrations are hereinafter referred to as the FORMULA 707 Registrations.
Copies of the FORMULA 707 Registrations and printouts from the U.S. Patent and Trademark
Office database showing the current title and status of such registrations are attached as Exhibit
A.
15.
The FORMULA 707 Registrations are valid, subsisting and in full force and
effect. U.S. Registration Nos. 3,735,192 and 3,683,185 are incontestable pursuant to Section 15
of the Lanham Act, 15 U.S.C. 1065, and are conclusive evidence of the validity of the
FORMULA 707 GASTRO ESSENTIALS and FORMULA 707 HOOF ESSENTIALS
trademarks, the registration of such marks, Plaintiffs ownership of such marks, and of Plaintiffs
exclusive right to use such marks in connection with all of the goods identified in those
registrations.
16.
U.S. Registration Nos. 3,892,403; 4,888,452; 4,888,453; and 4,888,454 are prima
facie evidence of the validity of the FORMULA 707 CALMING ESSENTIALS, FORMULA
707, and FORMULA 707 PEAKCARE trademarks, the registration of such marks, Plaintiffs
ownership of such marks, and of Plaintiffs exclusive right to use such marks in connection with
all of the goods identified in those respective registrations.
17.
Plaintiff has acquired common law rights in the FORMULA 707 Mark through
use of such marks on or in connection with the sale of its goods throughout the United States.
18.
Plaintiff has expended substantial monies in marketing, advertising, and
promoting the FORMULA 707 Mark and, through such sales and advertising, has generated
substantial goodwill and customer recognition in such mark.
19.
Plaintiff has derived substantial revenues from its sales of its goods under the
FORMULA 707 Mark.

20.
As a result of the continuous and extensive marketing and sales of Plaintiffs
goods under the FORMULA 707 Mark throughout the United States, and of the publics
widespread use of Plaintiffs goods, such products have come to be, and now are, well and
favorably known under the FORMULA 707 Mark as products of high quality, durability, and
reliability. The FORMULA 707 Mark is distinctive of Plaintiffs goods and are well-known, and
valuable goodwill has been built up in the FORMULA 707 Mars. Such goodwill has been built
up long before Defendant adopted the use of the name Ranch707 or 707 Ranch.
21.
Plaintiffs FORMULA 707 Mark and the FORMULA 707 Registrations are
entitled to immediate and strong protection from unfair competition, infringement, and injury to
the marks and the goodwill represented by such marks.
Defendants Unauthorized and Infringing Use of Plaintiffs FORMULA 707 Mark

22.
Defendant markets and sells horse treats, horse pill carriers, horse paste carriers,
and psyllium cakes (the Defendants Products).

23.
Defendants Products are closely related to Plaintiffs goods.
24.
Defendants Products are used for the same purpose as certain of Plaintiffs
goods, namely used as preparations for the care of animals, in particular horses.
25.
Defendant markets and sells the Defendants Products using the trademarks 707
RANCH and RANCH707 (the Defendants 707 Marks) without consent or authorization of
Plaintiff.
26.
Defendant prominently features Defendants 707 Marks on its products, and its
advertising and marketing of its products. The 707 portion of the Defendants 707 Marks is
the dominant feature of such marks. As shown below, Defendants Products oftentimes display
indicia related to horses. Examples of Defendants Products include those depicted below:
27.
The Defendants 707 Marks are identical or confusingly similar to Plaintiffs
FORMULA 707 Mark.

28.
On information and belief, Defendants use of Defendants 707 Marks is and has
been with knowledge of the extensive prior use by Plaintiff of Plaintiffs FORMULA 707 Mark.
29.
Defendant has had notice of its infringement of the FORMULA 707 Mark,
including instances of actual confusion, but has nonetheless persisted in its use of Defendants
707 Marks.
30.
In the summer of 2015, Plaintiff corresponded with Defendant to bring to
Defendants attention its infringement of the FORMULA 707 Mark.

31.
Plaintiff explained, among other things, that Defendants use of Defendants 707
Marks had caused instances of actual confusion including inquiries from Plaintiffs customers as
to the affiliation, connection, association, or sponsorship between Plaintiff and products using
Defendants 707 Marks.
32.
Plaintiff demanded that Defendant cease using Defendants 707 Marks and to
correct any errors, inaccuracies, or misperceptions as to affiliation, connection, association, or

sponsorship between Plaintiff and products using Defendants 707 Marks.
33.
Defendant refused to comply fully with Plaintiffs demands, and instead
continued to use Defendants 707 Marks in a manner that is likely to cause confusion, mistake or
deception that Defendants Products are those of Plaintiff or are otherwise endorsed, sponsored,
or approved by Plaintiff, or cause confusion, mistake or deception as to the affiliation,
connection or association between Defendant and Plaintiff.
34.
Since the parties last correspondence, Plaintiff has been made aware of additional
actual consumer confusion that further demonstrates the expanding nature of the concerns in the
market place.
35.
Plaintiff has used the FORMULA 707 Mark in connection with its goods since
long before Defendant adopted and began using Defendants 707 Marks.
36.
Defendants 707 Marks are confusingly similar to Plaintiffs FORMULA 707
Mark, and the use thereof by Defendant in connection with Defendants Products is likely to
cause confusion, mistake or deception that Defendants Products are those of Plaintiff or are
otherwise endorsed, sponsored, or approved by Plaintiff, or cause confusion, mistake or
deception as to the affiliation, connection or association between Defendant and Plaintiff.
37.
Defendant uses Defendants 707 Marks repeatedly in a misleading way, including
in its company name, in marketing and advertising for Defendants Products, on its website
where it markets and sells Defendants Products, and on the Defendants Products themselves.
38.
As a result of Defendants conduct, Plaintiff has suffered and continues to suffer
irreparable injury to itself, its reputation, its FORMULA 707 Mark and the goodwill represented
by such marks for which there is no adequate remedy at law, entitling Plaintiff to injunctive
relief.
FIRST CLAIM FOR RELIEF
FEDERAL TRADEMARK INFRINGEMENT (15 U.S.C. 1114(1))
39.
Plaintiff realleges and incorporates by reference as if fully set forth herein the
allegations contained in paragraphs 1 through 32.

40.
Defendant uses Defendants 707 Marks to advertise, distribute, offer for sale, and
sell in interstate commerce the Defendants Products.

9
41.
Defendants 707 Marks are confusingly similar to Plaintiffs FORMULA 707
42.
Defendants Products are closely related to Plaintiffs goods, and like Plaintiffs
Mark.
goods, are preparations for the care of animals, in particular horses.

43.
The overall look and feel of Defendants Products are very similar to Plaintiffs
44.
Defendant has used Defendants 707 Marks in advertising for Defendants
goods.
Products to mislead and confuse consumers as to the source of the Defendants Products and to
create a false suggestion of a connection with Plaintiff.
45.
Plaintiff has not authorized or consented to Defendants use of Defendants 707
46.
Defendants use of Defendants 707 Marks is likely to cause confusion or
Marks.
mistake, or to deceive consumers into falsely believing that Plaintiff is the source of the
Defendants Products or that Defendant and/or the Defendants Products are sponsored by,
affiliated with, endorsed by or approved by Plaintiff.
47.
Defendants use of Defendants 707 Marks infringes Plaintiffs FORMULA 707
Mark, including Plaintiffs rights under the FORMULA 707 Registrations.

48.
On information and belief, Defendants actions described above were and are
intentional, willful and in reckless disregard for Plaintiffs trademark rights.

49.
Defendants actions described above have misappropriated and damaged the
value of Plaintiffs FORMULA 707 Mark.

50.
Defendants actions described above have unjustly enriched Defendant.
10
51.
Defendants actions described above have and are continuing to cause irreparable
injury to Plaintiff for which there is no adequate remedy at law.

52.
Defendants actions described above constitute willful trademark infringement
entitling Plaintiff to remedies set forth in 15 U.S.C. 1117 and 15 U.S.C. 1118.
SECOND CLAIM FOR RELIEF
UNFAIR COMPETITION AND FALSE
DESIGNATION OF ORIGIN (15 U.S.C. 1125(A))
53.

54.
Plaintiff has continuously and extensively used the FORMULA 707 Mark
throughout the United States in connection with the sale of Plaintiffs goods.
55.
Plaintiffs FORMULA 707 Mark has come to represent and symbolize high
quality, reliable products sold by Plaintiff, including preparations for the care of animals, in
particular horses.
56.
Defendant is not authorized to use the FORMULA 707 Mark.
57.
Defendants use of Defendants 707 Marks is likely to cause confusion or
mistake, or to deceive customers into falsely believing that Defendant is approved by, sponsored
by, endorsed by, or otherwise affiliated with Plaintiff in violation of the Lanham Act 43(a) (15
U.S.C. 1125).
58.
On information and belief, Defendants use of Defendants 707 Marks described
above is and was intentional, willful and in reckless disregard for Plaintiffs trademark rights.
59.
Defendants conduct described above has misappropriated and diminished the
value Plaintiff has created in its FORMULA 707 Mark.

11
60.
Defendants actions described above have unjustly enriched Defendant.
61.
Defendants actions described above have and are continuing to cause irreparable
injury to Plaintiff for which there is no adequate remedy at law.

62.
Defendants action described above constitute unfair competition and false
designation of origin under 15 U.S.C. 1125(a) entitling Plaintiff to remedies set forth in 15
U.S.C. 1117 and 15 U.S.C. 1118.
THIRD CLAIM FOR RELIEF
DECEPTIVE TRADE PRACTICES UNDER
THE COLORADO CONSUMER PROTECTION ACT, C.R.S. 6-1-101 ET SEQ.
63.

64.
On information and belief, in the course of its business Defendant has and
continues to knowingly pass off its goods, services, or property as those of Plaintiff and/or the
FORMULA 707 Mark.
65.
On information and belief, in the course of its business Defendant has and
continues to knowingly make false representations as to affiliation, connection, or association

with or certification by Plaintiff and/or the FORMULA 707 Mark.
66.
On information and belief, without Plaintiffs authorization, Defendant has
identified and continues to knowingly identify Defendant and Defendants business and/or goods
with confusingly similar variations of the FORMULA 707 Mark, including but not limited to
Defendants 707 Marks.
67.
Defendants false representations on its website were and are directed to the
market generally, taking the form of widespread, nationwide advertisement, which does not
12
exclude Colorado residents. Defendants goods are closely related and directly compete with
Plaintiffs goods, and are offered and provided through the same markets and channels of trade
to the same relevant consumers, including customers in this Judicial District. Defendants actions
have and do create a significant public impact on actual or potential consumers of Plaintiffs
goods.
68.
Based on the foregoing, Defendant has engaged in deceptive trade practices as
defined by the Colorado Consumer Protection Act, C.R.S. 6-1-105(1)(a),(b),(c) (e) or (g) and
Colorado common law.
69.
As a result of Defendants unlawful actions, Plaintiff has suffered commercial
harm. Defendant has damaged and will continue to damage Plaintiff and its valuable FORMULA
707 Mark causing irreparable harm for which Plaintiff has no adequate remedy at law.
70.
On information and belief, Defendants actions are and were knowing and willful.
71.
As a result of Defendants activities, Plaintiff has been damaged in an amount to
be ascertained at trial.
FOURTH CLAIM FOR RELIEF
COMMON LAW UNFAIR COMPETITION AND TRADEMARK INFRINGEMENT
72.

73.
The FORMULA 707 Mark is distinctive and valid at common law.
74.
Plaintiff has used the FORMULA 707 Mark in U.S. commerce, including in the
State of Colorado, since at least as early as 1958.

75.
Defendants sales of Defendants Products bearing Defendants 707 Marks
constitutes a false designation of origin and falsely represents to consumers that Defendants
13
Products originate from Plaintiff or that Plaintiff, sponsors, approves of, endorses, or is otherwise
affiliated with Defendant and Defendants Products.
76.
Defendants actions as described herein have caused and are likely to cause
confusion with Plaintiffs established and superior rights and otherwise unfairly compete with
Plaintiff.
77.
Such conduct is likely to cause consumer confusion, mistake or to deceive
consumers to believe that the Defendants Products originate from Plaintiff.

78.
Defendants use of Defendants 707 Marks on Defendants Products is a false
representation to consumers that Defendants Products originate from or are approved by

Plaintiff without Plaintiffs authorization, consent or ability to control the quality of the goods
provided under Defendants 707 Marks.
79.
On information and belief, Defendants conduct is willful, intended to trade on
and benefit from Plaintiffs goodwill and constitutes trademark infringement and unfair
competition under Colorado common law.
80.
As a result of Defendants activities, Plaintiff has been damaged in an amount to
be ascertained at trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests judgment and relief against Defendant as
follows:
1.
A permanent injunction prohibiting Defendant and any employees, officers,
members, managers, agents, representatives, successors, affiliates, assigns and any entities
14
owned or controlled by Defendants, and all those in active concert and participation with
Defendants, from:
a.
using the FORMULA 707 Mark or any other mark that is likely to cause
confusion with Plaintiffs FORMULA 707 Mark, including but not limited to
Defendants 707 Marks;
b.
using any trademark, service mark, name, logo, domain name, or source
designation that is a copy, reproduction, colorable imitation, or confusingly similar to

Plaintiffs FORMULA 707 Mark, or is likely to cause consumer confusion, mistake, or to
deceive consumers that Defendants Products originate from Plaintiff or are authorized
by, sponsored by, endorsed by or otherwise affiliated with Plaintiff;
2.
An award to Plaintiff of monetary remedies in an amount to be determined by a
trier of fact for all harm caused by Defendants actions, including Defendants profits, the
damages sustained by Plaintiff, costs of the action, reasonable attorneys fees, and treble
damages and profits as authorized by law;
3.
An award of Plaintiffs interest, including prejudgment interest, on the foregoing
amounts;
4.
A direction to Defendant to provide for destruction of all products, labels, signs,
prints, packages, wrappers, receptacles, and any and all advertisements and marketing materials
in Defendants possession bearing the FORMULA 707 Mark or any other word, term, name,
symbol, device, or combination thereof, designation, description or representation that is a
reproduction, counterfeit, copy or colorable imitation of the Plaintiffs FORMULA 707 Mark,
including but not limited to Defendants 707 Marks;
15
5.
An award to Plaintiff of such other and further relief as the Court may deem just
and proper.
DEMAND FOR JURY TRIAL
Pursuant to Federal Rule of Civil Procedure 38(b), Plaintiff demands a trial by jury of all
claims so triable.
DATED this 22nd day of March, 2016.
/s/ Michael P. Dulin
Michael P. Dulin
Polsinelli PC
1515 Wynkoop, Suite 600
Denver, CO 80202
Telephone: 303-572-9300
E-mail: mdulin@polsinelli.com
Adam Weiss
Polsinelli PC
161 N. Clark Street, Suite 4200
Chicago, IL 60601
Tele: 312-819-1900
Email: aweiss@polsinelli.com
Mark Deming
Polsinelli PC
161 N. Clark Street, Suite 4200
Chicago, IL 60601
Tele: 312-819-1900
Email: mdeming@polsinelli.com
Attorneys for Plaintiff John Ewing Company
Plaintiffs Address
John Ewing Company
401 North First Street
La Salle, Colorado 80645
16

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Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 2 of 16

Plaintiff, John Ewing Company, is a Colorado corporation with a principal place

of business located at 401 North First Street, La Salle, Colorado.

On information and belief, Defendant 707RANCH, L.L.C. d/b/a RANCH707 is

http://www.supplementsforhorses.com, and through dealers in Arizona, Idaho, Nevada, and Utah

This Court has personal jurisdiction over Defendant because Defendant

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 3 of 16

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

Plaintiffs FORMULA 707 Trademarks

In 1958, Plaintiffs predecessor in interest adopted the now well-known

advertising and marketing of its products.

As shown below, the 707 portion of the

FORMULA 707 logo is the dominant feature of the mark:

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 4 of 16

Plaintiffs FORMULA 707 products oftentimes display indicia related to horses.

Examples of Plaintiffs FORMULA 707 products include those depicted below:

Plaintiff owns the following non-exhaustive list of registrations on the Principal

Register of the United States Patent and Trademark Office:

FORMULA 707 GASTRO

A nutritional feed supplement for horses (in

FORMULA 707 HOOF

Nutritional supplements (in International Class 5)

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 5 of 16

U.S. Reg. No.

Animal feed supplements (in International Class

Antiseptic preparations; Dietary supplements for

Non-medicated grooming preparations for horses,

Dietary supplements for horses (in International

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 6 of 16

Plaintiff has expended substantial monies in marketing, advertising, and

FORMULA 707 Mark.

As a result of the continuous and extensive marketing and sales of Plaintiffs

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 7 of 16

Defendants Unauthorized and Infringing Use of Plaintiffs FORMULA 707 Mark

and psyllium cakes (the Defendants Products).

Defendants Products are closely related to Plaintiffs goods.

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 8 of 16

The Defendants 707 Marks are identical or confusingly similar to Plaintiffs

FORMULA 707 Mark.

In the summer of 2015, Plaintiff corresponded with Defendant to bring to

Defendants attention its infringement of the FORMULA 707 Mark.

correct any errors, inaccuracies, or misperceptions as to affiliation, connection, association, or

Defendant refused to comply fully with Plaintiffs demands, and instead

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 9 of 16

Defendants 707 Marks are confusingly similar to Plaintiffs FORMULA 707

Defendant uses Defendants 707 Marks repeatedly in a misleading way, including

As a result of Defendants conduct, Plaintiff has suffered and continues to suffer

allegations contained in paragraphs 1 through 32.

sell in interstate commerce the Defendants Products.

Case 1:16-cv-00678 Document 1 Filed 03/22/16 USDC Colorado Page 10 of 16

Defendants 707 Marks are confusingly similar to Plaintiffs FORMULA 707

goods, are preparations for the care of animals, in particular horses.

Defendant has used Defendants 707 Marks in advertising for Defendants

Plaintiff has not authorized or consented to Defendants use of Defendants 707

Defendants use of Defendants 707 Marks is likely to cause confusion or

Defendants use of Defendants 707 Marks infringes Plaintiffs FORMULA 707

Mark, including Plaintiffs rights under the FORMULA 707 Registrations.

intentional, willful and in reckless disregard for Plaintiffs trademark rights.

Defendants actions described above have misappropriated and damaged the

value of Plaintiffs FORMULA 707 Mark.