Navan Foods v. Spangerl Candy - Trademark Complaint PDF

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 1 of 44 PageID# 1
FILED
IN THE UNITED STATES DISTRICT COURT'
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
im HAR 31 P l{: 51
NAVAN FOODS, LLC
CLERK US DISTRICT COURT

A^EXyiDRIA, VIRGINIA
Plaintiff,
V,
Civil Action No.
SPANGLER CANDY COMPANY,

INC.,
and
FISHER DESIGN, INC.

DEMAND FOR JURY TRIAL
Defendants.
COMPLAINT
Plaintiff Navan Foods, LLC ("Plaintiff), by and through its undersigned attorney, alleges
as follows, based upon actual knowledge with respect to its own acts and upon infonnation and
belief with respect to all other matters.
NATURE OF THE CASE
1.
This is a civil action to remedy the actions taken by Defendant Spangler Candy
Company, Inc. ("Defendant Spangler"), with the assistance of Defendant Fisher Design Group
("Defendant Fisher") (collectively "Defendants") to deprive Plaintiff of what lawfully belonged
to Plaintiff, thereby causing economic injury to Plaintiff.
Specifically, the Defendants stole
Plaintiffs intellectual property (including Plaintiffs trademarks and copyrights, as described

herein) and used and reproduced said intellectual property without the knowledge, consent, or
authorization of Plaintiff.
2.
On information and belief. Defendant Fisher designed certain of the icons used by
Defendant Spangler, which infringed Plaintiffs intellectual property and are now the subject of
this lawsuit.
As such. Defendant Fisher acted in concert with Defendant Spangler, and,
therefore, all Counts alleged in this Complaint are alleged against both Defendants.
An
announcement posted on Defendant Spangler's website, dated May 23, 2012, states "Fisher
Design, a brand strategy and package design agency located in Cincinnati, Ohio, was brought on
to develop the new artwork [that contained intellectual property that Plaintiff alleges infringed on
Plaintiffs legal rights] with the marketing department using a multi-phase process that also
incorporated input from sales, production and quality assurance."

3.
Defendants' legal violations include, inter alia. Federal Infringement of an
Unregistered Trademark and False Designation of Origin, False or Misleading Description of

Fact and False or Misleading Representation of Fact under Section 43(a)(1)(A) of the Lanham
Act 15 U.S.C. 1125(a)(1) Asserted by Plaintiff Against Defendants; Federal Infringement of an
Unregistered Trade Dress and False Designation of Origin, False or Misleading Description of
Fact and False or Misleading Representation of Fact under Section 43(a)(1)(A) of the Lanham
Act 15 U.S.C. 1125(a)(1) Asserted by Plaintiff Against Defendants; Federal Unfair
Competition of Trademarks under Section 43(a) of the Lanham Act 15 U.S.C. 1125(a) Asserted
by Plaintiff Against Defendants; Federal Unfair Competition of Trade Dress under Section 43(a)
of the Lanham Act 15 U.S.C. 1125(a) Asserted by Plaintiff Against Defendants; Common Law
Trademark Infringement and Unfair Competition under Virginia Common Law Asserted by
Plaintiff Against Defendants; Common Law Trademark Infringement and Unfair Competition
under Ohio Common Law Asserted by Plaintiff Against Defendants; Unfair Competition under
Virginia's Consumer Protection Act, Virginia Stat. Ann. 59.1-200(A) Asserted by Plaintiff
Against Defendants; Deceptive Trade Practices under Ohio Law, O.R.C. 4165.02(A), Asserted
by Plaintiff Against Defendants; Dilution of an Unregistered Trademark under the Federal
Trademark Dilution Act (15 U.S.C. 1125(c) Asserted by Plaintiff Against Defendants; Federal
Copyright Infringement Under the Copyright Act (17 U.S.C. 501(a)) Asserted by Plaintiff
Against All Named Defendants; False Advertising under Section 43(a) of the Lanham Act 15
U.S.C. 1125(a)(1)(B) Asserted by Plaintiff Against Defendants; False Advertising under Va.
Code 18.1-216 Asserted by Plaintiff Against Defendants; Tortious Interference with Business
Relations, Opportunities, Expectancy and Prospective Economic Advantage Asserted by Plaintiff

Under Virginia Common Law Against Defendants; Tortious Interference with Business
Relations, Opportunities, Expectancy and Prospective Economic Advantage Asserted by Plaintiff
Under Ohio Common Law Against All Defendants; Breach of Contract Asserted by Pleiintifif and
Derivative Plaintiff Against Defendants; Civil Conspiracy under Virginia Common Law
Asserted by Plaintiff Against Defendants; and Civil Conspiracy under Ohio Common Law
Asserted by Plaintiff Against Defendants.
JURISDICTION AND VENUE
4.
This Court has subject matter jurisdiction over this action, pursuant to 28 U.S.C.
1331, because this suit asserts causes of action under both 15 USC 1125 and 17 U.S.C. 501(a).
This court also has subject matter jurisdiction under 28 U.S.C. 1338(a)-(b).
5.
Pursuant to 28 U.S.C. 1367(a), this Court has supplemental jurisdiction over the
claims in this Complaint that arise under the common law and the statutes of the Commonwealth
of Virginia and the State of Ohio because the claims are so related to the federal claims that they
form part of the same case or controversy and derive from a common nucleus of operative facts.
6.
In the alternative, pursuant to 28 U.S.C. 1332(a)(1), this Court has diversity
jurisdiction over the claims in this Complaint because the amount in controversy exceeds Seventy
Five Thousand Dollars ($75,000.00), exclusive of interest and costs, and the parties are citizens of
different states.
7.
Defendants are each subject to this Court's personal jurisdiction because Plaintiff
is a limited liability company organized to do business in the Commonwealth of Virginia,

Plaintiff has its principal place of business in the Commonwealth of Virginia, Plaintiff has
suffered injury in Virginia as a result of Defendants' unlawful acts, the parties operate and
transact business in the State of Virginia, the parties can be found in State of Virginia, Defendant
Fisher acted with, assisted, conspired, and engaged in acts related to Defendant Spangler
conducting business in the Commonwealth of Virginia, Defendants have committed the acts in
furtherance of their business in the Commonwealth of Virginia, and Defendant Spangler has a
broad distributorship network in the Commonwealth of Virginia that generates a substantial

amount of revenue for the Defendant.
8.
Venue is proper in this District pursuant to 28 U.S.C. 1391(b)-(c) and 1400(a)
because Plaintiff is located in this district; Plaintiff is a business organized under the laws of the
Commonwealth of Virginia with a principal place of business in this district; the property that is
the subject of this litigation was created, situated, and used in this district; Defendants are doing
and have done business within the district; and a substantial part of the events or omissions giving
rise to Plaintiffs claims are situated in this district..
THE PARTIES
9.
Plaintiff is a limited liability company orgsinized under the laws of the
Commonwealth of Virginia with its principal place of business located at 1080 San Marco Road,
Virginia Beach, Virginia 23456.
10.
Defendant Spangler is a corporation organized under the laws of the State of Ohio
with its principal place of business located at 400 North Portland Street, Bryan, Ohio 43506.
11.
Defendant Fisher is a corporation organized under the laws of the State of Ohio
with its principal place of business located at 4101 Spring Grove Avenue, Unit B, Cincinnati,
OH 45223.
INFORMATION ABOUT PLAINTIFF & PLAINTIFF'S INTELLECTUAL PROPERTY
12.
Plaintiff is a limited liability company that was started by Jennifer Elizondo, a
mother whose youngest son Vaughn was diagnosed with multiple, life-threatening food allergies
when he was eighteen months old that resulted in multiple emergency room visits that left
Vaughn's parents worried for his life.
13.
After Vaughn was diagnosed, Ms. Elizondo quickly learned how difficult it was
to find safe foods for her son. She was forced to make regular weekly trips to several different
grocery stores and was left v^th a great deal of uncertainty regarding the safety of what she was
buying, primarily as a result of cross-contamination issues in the production and handling of
these food items. Despite the labels on these foods indicating that the product did not contain
harmftil ingredients, cross-contamination of even the smallest trace of harmftil ingredients in the
production and handling of these foods could be lethal to her son. For example, if certain
ingredients even touch the same conveyer belt upon which "safe foods" are later placed or even
handled in the same room, the results could be deadly.
14.
Ms. Elizondo quickly realized that there were other parents who had children with
the same medical issues and who were dealing with the same challenges. As such, she created a
concept for a store that would find alternative, allergy-friendly foods not carried by chain
grocery stores and then contact the manufacturers directly to inquire about ingredients and the
specific manufacturing environment in which the products are made and handled.
15.
On or about July 27,2007, Ms. Elizondo founded Navan Foods, LLC, and started
working diligently to develop her business plan and obtain the resources, information, and
contracts needed to execute her vision.
16.
The business concept was a calculated risk as, to Ms. Elizondo's knowledge, there
were no brick-and-mortar stores of this type anywhere in the country. Because she felt strongly
about her concept and was fueled by a desire to help other families facing medical challenges
including food allergies. Autism, and Celiac disease, Ms. Elizondo pushed forward and executed
her vision without a single, proven prototype.
17.
At the center of Ms. Elizondo's vision was an icon system that would be integral
to the success of her business model. Plaintiff engaged a graphic design company to design from
scratch the icons, and began exchanging e-mails with the graphic design company on or about
January 15, 2008.
18.
After the graphic design company sent Plaintiff the initial proofs of the icons.
Plaintiff and the design company continued exchanging e-mails wherein Plaintiff requested
changes and modifications of the icons. The graphic design company changed and tweaked the
icons per her requests. Plaintiff was invoiced for the icons on or about March 5, 2008, and
Plaintiff paid this invoice on March 7, 2008.
19.
On or about April 25,2008, the design company sent Plaintiff an e-mail that
included an attachment containing, inter alia, the final version of fifteen individual allergen
icons. A copy of each individual, allergen icon is attached collectively hereto and incorporated
herein as Plaintiffs Exhibit A. These fifteen allergen icons attached as Exhibit A are the sole
and exclusive trademarks of Plaintiff. Nine of these fifteen allergen icons would eventually be
used and reproduced illegally by Defendants. A copy of the nine allergen icons that are the
subject matter of this litigation are attached hereto and incorporated herein as Plaintiffs Exhibit
B (hereinafter the "Trademarks" or "Plaintiffs Trademarks").
20.
On or about May 3, 2008, Ms. Elizondo's vision came to fruition when Plaintiff
opened a brick-and-mortar store in a strip mall in Virginia Beach, Virginia. A copy of an article
from the Health Central website titled "Allergy-Free Grocery Shopping at Navan," dated June 6,
2008, is attached hereto and incorporated herein as Plaintiffs Exhibit C.
21
The article marked as Plaintiffs Exhibit C details Plaintiffs business concept
which featured the Trademarks as part of Plaintiffs icon system. As explained in the article.
Plaintiff found and researched alternative, allergy-friendly foods that larger stores usually did not
carry and then contacted the manufacturer of all the products in writing to obtain information
regarding ingredients, the production facility, testing at the facility, the manufacturing
environment, handling of the foods and cross-contamination issues. This information was then
gathered onto a "shelf card," which was placed beside each individual product found in
Plaintiffs store. These shelf cards feature Plaintiffs Trademarks and are referenced in the
article. The shelf cards containing the Trademarks are visible in the small photo included in
Exhibit C.
22.
The shelf cards referred to in Exhibit C reflected a coding system developed by
Plaintiff that consisted of various, proprietary icons consumers could use to quickly and easily
determine whether a product was safe for consumption. These icons, consisting of Plaintiffs
Trademarks, were assigned to foods only after Plaintiff conducted independent research, and the
Trademarks are intended to convey the research performed by Ms. Elizondo to consumers in a
quick and easy fashion, so that consumers can rely on such information to determine if a product
is safe to eat.
23.
Plaintiffs Trademarks often convey information that a consumer cannot ascertain
just from reading the labels. For example, the manufacturer of Froose gummies claims their
product to be allergen free (including nut free). However, coconut oil is used in the
manufacturing of the product and coconut is a tree nut according to the Food & Drug
Administration. Despite the FDA recognizing coconut as a tree nut, FDA exemptions allow the
company to not declare on its packaging that it contains tree nuts
24.
A press release dated May 10,2008, titled "With Alarming Increase in Food
Allergies, a New Type of Food Store Helps Families Cope with Special Diets" contained photos
of Plaintiffs shelf cards displaying the Trademarks and states that what separates Plaintiffs
business from other grocery or health food stores are the services offered as evident in the
product cards and the Trademarks displayed therein,
25.
Not only did Plaintiff use the Trademarks on the shelf cards displayed
prominently in her store, but Plaintiff also provided consumers with a brochure that details
Plaintiffs icon system and how consumers can rely on Plaintiffs Trademarks.
26.
On or about late August 2008, Plaintiff launched a website at
"https://www.navanfoods.com" that, like Plaintiffs store, also used the Trademarks to inform
consumers and sell products online. Plaintiff regularly placed the Trademarks on the website
alongside products sold on the website so consumers could rely on the special information and
special meaning conveyed by the Trademarks to make their purchase. The website also
contained a guide explaining Plaintiffs labeling system, the information each Trademark is
intended to convey, how the information each Trademark is intended to convey was collected,
and how consumers may rely on the Trademarks.
27.
A press release dated August 27, 2008, titled "Navan Foods Brings Easy Food
Allergy Shopping Online" discusses the launch of Plaintiffs website, includes a copy of a
product card containing the Trademarks and reads,
Navan Foods' concept is to provide shoppers with point of sale

information regarding product ingredients and the manufacturing environment.
The website, designed by 3 Waves Media, follows the store's concept by
providing a wealth of information about food products using the company's
icon system to denote "Made Without" ingredients (i.e., gluten free, peanut
free, etc.), healthy options, and other special diet information like whether the
product is Organic or Kosher.
28.
Plaintiffs Trademarks as featured in her shelf cards, website and marketing
materials were the primary "selling point" of Plaintiff's business as they comprised the central,
unique feature of Plaintiffs business model because the Trademarks were used and depended on
by Plaintiffs customers. This business model and the Trademarks associated therewith are what
attracted the attention of the allergy-free community and resulted in Plaintiff receiving both local
and national press.
29.
Plaintiffs business model and its Trademarks resulted in a great deal of media
coverage from local and national news outlets as well as from individuals who are pillars in the
food allergy community. In fact, within the first six months of being in business, Plaintiff was
named by the leading nationally circulated trade magazine for the food distribution industry.
Supermarket News, as one of their "Top Fit 25" which celebrates the efforts of food retailers
leading the industry in health, wellness, and sustainability. The designation recognizes 25
retailers that are leading the way in smarter shopping and better living. Thisis an honor usually
bestowed upon larger companies, such as Trader Joes, Walmart, and Whole Foods. This article
points out the intrinsic importance of the shelf cards featuring the Trademarks to Plaintiff's
successful business model.
29.
In an article posted on GoDairyFree.org on September 1, 2008, the author
discusses how Plaintiffs business operation and reach is "extending beyond their local area" and
how Plaintiff ships products to customers throughout the United States. Additionally, the article
highlights Plaintiffs unique proprietary icon system featuring Plaintiff's Trademarks. In fact,
Plaintiff regularly sold and shipped products to customers throughout the United States through
both online and in-store sales.
30.
Another article from the Virginia Pilate Beacon newspaper, dated May 25, 2008,
titled "Navan Foods Helps Shoppers Find Edibles that Don't Irritate," discusses Plaintiffs
labeling system as designated through Plaintiffs Trademarks and states that the Trademarks
provided "a major time-saver" to one of Plaintiff s customers, a view shared by the vast majority
of Plaintiffs customer base. Additionally, the article references how most products labeled
"com free" may contain citric acid which cin actually come from com or fmit. As such.
Plaintiffs com-free proprietary icon conveys this information to the consumer.

31.
There were many independent articles written featuring Plaintiffs Trademarks.
For example, an article from Link magazine, dated July 29, 2008, discussed Plaintiffs labeling
system, featured photos of the Trademarks and discussed the large amount of time saved by
consumers who rely on Plaintiffs Trademarks, while an article from the July/August 2009 issue
of Thrive Magazine, titled "The Navan Foods Story: How a Virginia Beach Woman Took
Matters in Her Own Hands," references Plaintiffs "icon labeling system" and "icon system"
which feature the Trademarks.
10
32.
The Trademarks are an integral part of Plaintiffs branding as the Trademarks
quickly and succinctly advise the consumer of the safety of food products and the results of
research conducted by Plaintiff prior to affixing these Trademarks to certain foods. Plaintiff
brought these Trademarks and the unique icon system associated therewith to the food allergy
community and spent a great deal of time building the brand and, most importantly, the trust that
attaches to the brand, the Trademarks and the research conveyed by the Trademarks. In addition
to Plaintiffs website, the Trademarks were and are featured prominently on Plaintiff's Facebook
and Twitter pages.

33.
Ms. Elizondo was a speaker and panelist at events and gatherings including, inter
alia, the Natural Food Products Expo in Baltimore, Maryland, where she displayed Plaintiffs
Trademarks during a PowerPoint presentation made at the event.

34.
The Trademarks were also featured in Plaintiffs print advertisements, including,
inter alia, (a) a book insert flyer for a cookbook; (b) the Celiac Disease Foundation quarterly
newsletter which reaches 15,000 people per month; (c) the Five Points Farmers Market
Newsletter; (d) Baby Guide newspaper; (e) Tidewater Parents newspaper; (f) National Autism
Conference Program; (g) Thrive Magazine; (h) Living Without Magazine, which, at the time the
ads ran in 2010 and 2011, was the only national publication specifically targeting readers who
need to adhere to a special diet lifestyle; (i) Talk About Curing Autism Journey Guide and event
programs; and (j) a web banner ad on Go Dairy Free, which gets millions of visitors each yearin
2010, when Plaintiff started running its ads, the website got over 350,000 hits by 120,000 unique
visitors per month and over 3 million hits by over 1 million unique visitors for the year; (k) Kids
With Food Allergies Support Net magazine; (1) Virginia Pilot newspaper; (m) Tidewater Parents
magazine; and (n) USA Today.
11
35.
Plaintiff is the sole and exclusive owner of the Trademarks, each of which is
inherently distinctive, was used in intrastate and interstate commerce, and conveys certain
information compiled by Plaintiff that is intended for consumers to rely on and upon which
consumers actually rely thereby acquiring a secondary meaning.
36.
Plaintiff first used its Trademarks in commerce in the Commonwealth of Virginia
when Plaintiff opened its brick-and-mortar store in Virginia Beach, Virginia, on or about May 3,
2008.
37.
Plaintiff began using its Trademarks in interstate commerce on or about August
2008, when Plaintiff launched its website and started selling products designated with Plaintiffs
Trademarks online to consumers throughout the country.
38.
On or about March 30,2016, Plaintiff filed applications with the U.S. Copyright
Office to copyright 31 of Plaintiffs proprietary icons including the Trademarks. The copyright
case numbers for each of the nine marks that constitute the Trademarks are as follows: 1-
3255345829, 1-3255345782, 1-3255345876, 1-3255345923, 1-3255346017, 1-3255346111, 13255346158, 1-3257236346, and 1-3257236393.
39.
Plaintiffs Trademarks are inherently distinctive.
40.
Plaintiffs Trademarks have become distinctive by acquiring a secondary meaning
as a result of use of the Trademarks, the research and information conveyed by the Trademarks
and the reliance consumers have on the information conveyed by the Trademarks. In purchasing
products at Plaintiffs store and website, consumers have relied on information and independent
research conveyed by the Trademarks that could be the difference between life and death.
12
25.
Plaintiffs use of the Trademarks has been deliberate and continuous, not
sporadic, casual, or transitory as Plaintiff started using the Trademarks on or about May 8, 2008,
and has used such Trademarks continuously through the present.
25.
As of the date of the filing of this Complaint, Plaintiff has had 1,746,975 page
views on Plaintiffs website.
26.
Plaintiff has received countless e-mails from customers demonstrating the trust
they have in the Trademarks, the work and research conveyed by the Trademarks, appreciation
for Plaintiffs business model and icon system, and appreciation for helping them learn how to
interpret and use the Trademarks. Many customers communicated the trust they have in
Plaintiffs brand and icon system represented by the Trademarks directly to Plaintiff. Some of
the comments submitted by customers to Plaintiff and Ms. Elizondo include the following:
"Loved your shop. So well laid out and labeled! Marvelous. It is the way a health
oriented store should be laid out."
"I appreciate the fact that I can come here (website), click on his allergies and it narrows
down the options for me[.] Saves so much time! [T]hank you, thank you, thank you[.]"
"The icons are incredibly helpful."
"I just wanted to extend my sincere gratitude for your fantastic store and easy to shop
website. I just had my first shopping experience and was delighted at how easy it was to
shop as I have both celiac and food allergies."
"It is really wonderful what you all do and I am so thankful to have found Navan Foods."
"I just want to thank you for opening a store like this...I think it is going to be the answer
to a lot of our problems,
"What a remarkable idea...your store is like a paradise to me."
13
"It was a great experience at your store yesterday, very shopper friendly. Your labels
make the process so easy."
"This will help other moms out[.]"
"There are a number of allergy type food sites out there, but you are the only one which
seems to do most of the work."
"Wanted to let you know how much our family appreciates your store and what you do
for families like ours."
"Just wanted your Navan Foods to know that what you do is greatly appreciated
so....Thank You!!"
"Thank you for what you do for my family and so many others."
"I wanted to pass on to you my sincerest appreciation for doing all the work that has led
me to tears more than once in the past few weeks....you have just made my life
easier....thank you, thank you, thank you[.]"
"I am so thankftil that you've opened up this store when [I] found out he had an egg
allergy [I] would be reading label after label to make sure he could eat the product."
27.
Due to the inherent distinctiveness, special characteristics, and unique nature of
Plaintiffs Trademarks, Plaintiff has had many third parties contact Plaintiff about opening
similar businesses. Specifically, Plaintiff has had many third parties contact it about inquiring
about the proprietary nature of the Trademarks, who developed the Trademarks, and whether the
third parties could use the Trademarks themselves. Plaintiff responded in writing to all third
parties who requested use of the Trademarks and asserted Plaintiffs sole and exclusive
ownership and proprietary interest in the Trademarks by advising third parties that the
Trademarks were developed by Plaintiff and that Plaintiffs policy was to not allow anyone to
14
use the Trademarks for any purpose whatsoever. However, Defendants never contacted Plaintiff
to seek permission to use Plaintiffs trademarks. Due to the proprietary nature of the Trademarks
and the unique information conveyed through each icon that make up the Trademarks, Plaintiff
has never authorized the use of the Trademarks to any third party.
INFORMATION ABOUT DEFENDANTS AND DEFENDANTS' WRONGFUL ACTS
28.
Defendant Spangler is an Ohio corporation that was formed on March 30,1946.
29.
Defendant Spangler is a family-owned, private company that has been making
candy since 1906. Spangler Candy is headquartered in Ohio, where it owns a manufacturing
facility covering 500,000 square feet, and they also operate a co-manufacturing facility in Juarez,
Mexico. Defendant Spangler's familiar brand names are Dum Dums, Saf-T-Pops, Spangler
Candy Canes, Spangler Circus Peanuts, Jelly Belly, Smarties, Sweethearts, Werther's and Life-
Savers. They also make familiar select lollipop, marshmallow, candy cane and hard candy items.
They manufacture, alone, 12 million Dum Dums each day, 2.7 million candy canes each day and
over 500,000 Saf-T-Pops per day.
30.
Defendant Spangler sells and distributes their products nationally including, inter
alia, in the Commonwealth of Virginia, through grocery, drug stores, mass market, club stores,
and candy wholesalers and sell their products through export brokers in many international
countries. Their products have a very high brand recognition.
31.
Defendant Fisher is an Ohio corporation that was formed on May 22, 1958.
32.
Defendant Fisher is a brand strategy and package design agency that collaborated
and conspired with Defendant Spangler to effectuate the improper use and copying of the
Trademarks.
15
31.
On or about April 1, 2014, Plaintiff discovered that Defendants were imlav^lly
using and copying the Trademarks without Plaintiffs knowledge, permission, a license or any
other authority to do so.
32.
When Plaintiffs Trademarks first appeared on Plaintiffs website on or about
August 2008, there was a clear copyright designation on the bottom of every page on the
website. From the time Plaintiffs website was launched on or about late August 2008, the
website also contained a "Terms and Conditions" page that was clearly visible and accessible to
all visitors to the website.
33.
On information and belief. Defendants stole and used the exact same Trademarks
from Plaintiffs website and copied them to Defendant Spangler's website at

www.spanglercandy.com, and for use in various Spangler marketing materials and Spangler
products, as alleged herein.
34.
Defendants agreed to the terms and conditions posted on Plaintiffs website when
they used Plaintiffs website. Defendants were therefore subject to the "Terms and Conditions"
that appear on Plaintiffs website and committed violations of these "Terms and Conditions"
when they used Plaintiffs Trademarks without permission. Defendants knew or should have
known about the terms and conditions on Plaintiffs website so Defendants had actual or, in the
alternative, constructive knowledge. Defendants also have their own similar terms and conditions
on their ovm websites, so at the very least, should have known about Plaintiffs terms and
conditions.
34.
Defendants also have terms and conditions on their websites so Plaintiff knew or,
at the very least, should have known about the terms and conditions on Plaintiffs website.
Defendants gave their assent to agree to the terms and conditions posted on Plaintiffs website
16
when they used Plaintiffs website. When Ms. Elizondo accessed Defendant Spangler's website
on April 1, 2014, she was shocked and upset to find that Defendants were using Plaintiffs
Trademarks on Defendant Spangler's website. The Trademarks being used by Defendants were
exactly identical to the Plaintiffs Trademarks. A screenshot of the Allergen Section of

Defendant Spangler's website, dated April 1, 2014, demonstrating Defendants unauthorized use
and copying of the Trademarks is attached hereto and incorporated herein as Plaintiffs Exhibit
D. A screenshot of the Saf-T-Pops Allergen Information Section of Defendant Spangler's
website demonstrating Defendants unauthorized use and copying of the Trademarks, dated April
1, 2014 is attached hereto and incorporated herein as Plaintiffs Exhibit E.
35.
After Plaintiff discovered Defendant Spangler's improper use and copying of
Plaintiffs icons online. Plaintiff purchased a package of Dum Dums lollipops on or about April
1, 2014. A photo of the Dum Dums lollipop package taken by Plaintiff showing what the
package looked like on April 1, 2014, and what Defendant Spangler's packaging still looks like
as of the date of the filing of this Complaint is attached hereto and incorporated herein as
Plaintiffs Exhibit F. This packaging contained icons that were not identical, but still infringed
on Plaintiffs Trademarks as the icons are sufficiently similar to cause confusion. In two
instances, the marks for eggs and milk, the pictorial representation of those icons was identical to
Plaintiffs Trademarks.
36.
Some of the graphic depictions found in the Trademarks used by Defendant
Spangler remain exactly the same as those contained in Plaintiffs Trademarks, while other icons
currently being used on Defendant Spangler's candy packaging is sufficiently similar to
Plaintiffs Trademarks to cause confusion in the marketplace and is a continuing infringement

and continued unauthorized use and unauthorized copying of Plaintiff s Trademarks.
17
37.
The icons which appear in Plaintiffs Exhibit F appear on the packaging of the
following brands of candy owned by Defendant Spangler: SweetNature Candy Canes, Saf-T-
Pops, Dum Dums, Dum Dums Holiday Pops, Dum Dums Gummy Snacks, Dum Dums
Valentine's Day Kit and Dum Dums Candy Canes, Defendants' use of such icons constitutes
infringement of Plaintiff s Trademarks.
38.
Defendants further engaged on the improper use and copying of the Trademarks
when they used and copied the underlying images contained in the Trademarks without
Plaintiffs consent, authorization or knowledge, and only changed the colors before using the
Trademarks in documents and marketing materials such as Defendant Spangler's Allergen-Free

Handout. A copy of Defendant Spangler's Allergen Free Handout is attached hereto and
incorporated herein as Plaintiffs Exhibit G (the "Handout"). Defendant's use of such icons
constitutes infringement of Plaintiffs Trademarks.
39.
Defendants further engaged in the improper use and copying of the Trademarks
when they used and copied the images contained in the Trademarks and only changed the colors
of the individually trademarked icons without Plaintiffs consent, authorization, or knowledge in
Defendant Spangler's Allergen Brochure. A copy of Defendant Spangler's Allergen Brochure is
attached hereto and incorporated herein as Plaintiffs Exhibit H (the "Brochure"). Defendant's
use of such icons constitutes infringement of Plaintiffs Trademarks.

40.
The Brochure was illegally copied and published on Defendant Spangler's
website without Plaintiffs knowledge, consent, or authorization. A screenshot taken of
Defendant Spangler's website containing the Brochure is attached hereto and incorporated herein
as Plaintiffs Exhibit I.
18
41.
The Brochure and Defendant Spangler's website, both of which improperly used
and copied Plaintiffs Trademarks, were used by Defendants to reach out to food allergy support
groups to make the food allergy community aware of Defendant's allergy free offerings. A letter
dated February 28, 2010, was posted on the Seacoast Food Allergy Group website informing the
group of Defendant Spangler's new website with a link to the Brochure attached. The identical
letter with the same link to the Brochure posted on February 24, 2010, to the Parents Having
Allergic Children Team Yahoo Group, a group whose website is funded by Food Allergy
Research and Education group which is located in McLean, Virginia.
42.
Defendants marketing and promotion efforts obviously resulted in the
dissemination of the Brochure and publicizing of Defendant Spangler's website, both of which
contained unauthorized use and copying of the Trademarks. For example, on February 22, 2010,
someone posted a link to the Brochure on the Kansas City Northland Food Allergy Support
Group website with a message commending Defendant Spangler for the Brochure and
encouraging the group members to buy Defendant Spangler's products. Also, Defendants used
the Brochure at various events and fundraising including, inter alia, the Kids With Food
Allergies Support Group fundraiser.
43.
Immediately upon discovering that Defendant Spangler was illegally using and
copying Plaintiffs Trademarks, Ms. Elizondo sent a message via twitter to Dum Dums
(@dum_dums) on April 1, 2014, wherein she inquired as to why Defendant Spangler was using
Plaintiffs Trademarks. Plaintiff received a response instructing her to contact Defendant
Spangler through their e-mail address or 888 telephone number. Plaintiff responded by advising
Defendant Spangler that she already sent an e-mail to Defendant, dated April 1, 2014, wherein
she asserted her ownership of the Trademarks she saw on Defendant Spangler's website and
19
included her phone number in it. Plaintiff did receive two calls from Defendant Spangler's
Trademarks Department thereafter.
44.
Even after April 1,2014, Defendant Spangler continued to use modified icons on
its website, marketing materials, and packaging that infringe on Plaintiffs Trademarks because
such icons remain sufficiently similar to the Trademarks to cause confusion. Furthermore, at
least two of the icons contain a graphical representation of items contained in the Trademarks
that is still identical to the images in Plaintiffs Trademarks, and therefore Defendants are
continuing to infringe on Plaintiffs trademark and copyright rights.
46.
A post made to the Raleigh Cel-Kids Celiac Support Group on or about
November 11, 2009, that infringed on Plaintiffs Trademarks is attached hereto and incorporated
herein as Plaintiffs Exhibit J. At the time, the link to Defendant Spangler's main allergen page
was posted in the aforementioned Kansas City, Seacoast, and Yahoo Groups, the Trademarks in
Exhibit J are what appeared on Defendant Spangler's website.
47.
While it is difficult for Plaintiff to state precisely when Defendant began
improperly using and copying Plaintiffs Trademarks, information obtained on

waybackmachine.org provides at least some information.
48.
On information and belief, waybackmachine.org demonstrates that Defendant
Spangler's main allergen webpage that contained the Trademarks was first indexed on or about
September 2010. A post on Dum Dums' Facebook page announcing their new packaging that
contained Plaintiffs Trademarks is dated June 2011.
'50.
Plaintiff spent a great deal of time and money building its brand as represented in
their Trademarks and, most important, the trust that is attached to the brand and the Trademarks.
This trust is crucial for a business in the food allergy community as a small misstep could mean
20
life or death to the consumer. Defendant's unauthorized use and duplication of Plaintiffs
trademark and copyrights diminishes this trust and has caused confusion in the marketplace.
51.
Defendant Spangler's specific use of Plaintiffs Trademarks has helped Spangler
achieve marketing gains with consumers and members of the allergy free community. There are
many articles and blogs online that discuss Defendant Spangler's allergy free products which
focus on the Trademarks on the back of Defendant Spangler's packaging where the Trademarks
are located and not the fronts of the packages where Defendant Spangler makes a simple allergy
free declaration.
52.
The use of the Trademarks by Defendants are either exactly the same as that of
Plaintiff or, in the cases of the altered Trademarks, sufficiently similar that it is likely to deceive
or to cause confiision or mistake on the part of the average purchaser.
53.
Defendants infringed on Plaintiffs copyright in the Trademarks by both copying
the material and copying a substantial portion of the protected work.

54.
Defendants' unauthorized use of Plaintiffs Trademarks, and the various altered
marks, are either identical or sufficiently similar such that the resemblance between the marks is
so close that it is likely to confuse a prospective buyer or customer exercising ordinary caution in
his or her dealings.
55.
Defendants' continued unauthorized use and copying of the Trademarks was and
still is willful, malicious, fraudulent, intentional, deliberate, and carried out in bad faith.
56.
Plaintiffs Trademarks as used by Plaintiff constitute a trade dress since it refers
to characteristics of the visual appearance of the product at issue as all products sold in Plaintiffs
store and website were assigned Trademarks ("Trade Dress")
INJURY TO PLAINTIFF
21
57.
Defendants' wrongful and unauthorized use and replication of Plaintiffs
Trademarks, and similar versions thereof, in connection with the sale, offering for sale,
distribution, and advertising of goods, has caused confusion, mistake, and deception on the part
of consumers and members of the allergy free community as to the products using Plaintiffs
Trademarks, the ownership of Platinfiff s Trademarks, and the association between Plaintiff and
Defendant.
Defendants' unlawful acts have irreparably injured Plaintiff by diminishing and
damaging Plaintiffs reputation and the reputation of Plaintiffs Trademarks and their hardearned goodwill.
58.
Trademarks, and similar versions thereof, have caused damage to Plaintiff because they have
misled, and are likely to continue to mislead, the public and the allergy fi"ee community into
believing that Defendant Spangler's business and activities are authorized by, attributable to,
sponsored by, or associated with. Plaintiff or otherwise were the original property of Defendant.
59.
Trademarks, and similar versions thereof, constitutes unfair competition and unfair and deceptive
trade practices that have adversely affected Plaintiff financially in the form of lost profits.
60.
Trademarks, and similar versions thereof, have caused irreparable damage to Plaintiffs personal
and business reputation resulting in lost income.
61.
Defendants, without Plaintiffs authority, consent or knowledge, commenced
using and replicating Plaintiffs Trademarks and sufficiently similar versions thereof in
commerce thereby diluting Plaintiffs Trademarks by giving rise to an association between the
marks that is likely to impair the distinctiveness of the Trademarks and harm the reputation of
22
the Trademarks. Defendants' unauthorized use of the Trademarks has and is likely to cause
dilution by blurring and dilution by tarnishing.

62.
Plaintiff has properly applied for registration with the Copyright Office of each of
the Trademarks to secure Plaintiffs ownership of the copyright to the Trademarks. By copying
constituent, original elements of the Trademarks that are original, Defendants have encroached
upon the exclusives right conferred by Plaintiffs copyright by reproducing the Trademarks,
preparing derivatives of the Trademarks, distributing copies of the Trademarks, and by
displaying the Trademarks publicly in marketing materials and on product packaging in interstate
commerce.
63.
advertising,
Through the
promotion
unauthorized use of Plaintiffs Trademarks in commercial
and
packaging.
Defendants
have
misrepresented
the
nature,
characteristics, qualities, and origin of Defendant's goods and commercial activities by using the
goodwill and consumer trust in Plaintiffs Trademarks without Plaintiffs authority or consent.
Defendants have made a false and misleading description of fact and representation of fact in
commercial advertising that is material and actually deceives or has the tendency to deceive a
substantial segment of the consumers who purchase allergy free products amd Plaintiff has been
or is likely to be injured as a result of Defendant's misrepresentation, either by direct diversion

of sales or by a lessening of goodwill associated with Plaintiffs Trademarks.
64.
Defendants' intentional, wrongful, negligent, tortious, reckless and unauthorized
use and replication of Plaintiffs Trademarks, and similar versions thereof, has negatively
impacted Plaintiffs relationships with manufacturers, customers and third parties in the allergy
free
community thereby
interfering with
Plaintiffs business relations, opportunities,
expectancies and prospective economic advantages, thereby resulting in damage to Plaintiffs
23
economic interests.
COUNT I
Federal Infringement of an Unregistered Trademark and False Designation of

Origin, False or Misleading Description of Fact and False or Misleading Representation of
Fact under Section 43(a)(1)(A) of the Lanham Act 15 U.S.C. 1125(a)(1) Asserted by
Plaintiff Against Defendants
65.
Plaintiff repeats and realleges every allegation set forth in Paragraphs 1 through 64
66.
Plaintiff's Trademarks are inherently distinctive designations for allergy free food
above.
items and have acquired recognition and secondary meaning in and among the general public and
the allergy free community as a safe, trusted and dependable designation that conveys certain
information to the consumer.
67.
By virtue of Plaintiffs longstanding and extensive use of the Trademarks in
interstate commerce, the Trademarks have come to serve as a designation of origin for Plaintiffs
research on food ingredients and production, and have become valuable symbols of the goodwill
Plaintiff has labored to acquire over the years.
68.
The actions of Defendants in unlawfully using the Trademarks are likely to cause
confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of
each Defendant, and their commercial activities, by or with Plaintiff, and thus constitute
trademark infnngement, false designation of origin, false or misleading description of fact, and
false or misleading representation of fact and unfair competition in violation of Section 43(a) of
the Lanham Act, 15 U.S.C. 1125(a)(l)(A)69.
69.
The actions of Defendants in unlawfully using the Trademarks are likely to cause
confusion, or to cause mistake, or to deceive or as to the origin, sponsorship, or approval of

Defendant's goods, services, or commercial activities by another person.
24
70.
The actions of Defendants in unlawfully using the Trademarks in commercial
advertising and promotion as detailed herein, have misrepresented the nature, characteristics, and
qualities, of Defendant's goods, services, and commercial activities.
71.
Defendants and their activities, as described above, have damaged the reputation
of Plaintiff, and the reputation, and goodwill of Plaintiff's Trademarks and the value thereof72.
72.
Defendants' wrongful acts have irreparably injured Plaintiff and will continue to
do so unless and until such acts are enjoined by this Court under 15 U.S.C. 1116. Plaintiff has
no adequate remedy at law.
COUNT II
Federal Infringement of an Unregistered Trade Dress and False Designation of

Origin, False or Misleading Description of Fact and False or Misleading Representation of
Fact under Section 43(a)(1)(A) of the Lanham Act 15 U.S.C. 1125(a)(1) Asserted by
73.
74.
Plaitiffs Trade Dress is inherently distinctive.
75.
Plaintiffs Trade Dress is has acquired secondary meaning so that it is perceived as
above.
identifying and distinguishing the source of the goods.

76.
Plaintiffs Trade Dress is non functional.
77.
Defendants unauthorized use and copying of the Trademarks is likely to cause
confucsion in the marketplace and amongt the relevant purchasing public.

COUNT III
Federal Unfair Competition of Trademarks under Section 43(a) of the Lanham Act
15 U.S.C. 1125(a) Asserted by Plaintiff Against Defendants
78.
25
above.
79.
Defendants have used the Trademarks without permission in interstate commerce
in connection with the provision of goods or services, including the promotion and sale of
various brands of Defendant Spangler's candy.
80.
Defendants use of Plaintiffs Trademarks is likely to cause confusion, in part
because third parties were likely to believe that Defendant Spangler owned or licensed Plaintiffs
Trademarks, which it did not.
81.
By continuing to utilize the Trademarks, Defendants have impaired the
distinctiveness of the Trademarks, and unfairly competed with Plaintiff; and caused irreparable
harm to the reputation and goodwill of Plaintiffs Trademarks and the business reputation of
Plaintiff
COUNT IV
Federal Unfair Competition of Trade Dress under Section 43(a) of the Lanham Act
15 U.S.C. 1125(a) Asserted by Plaintiff Against Defendants
82.
83.
Plaintiffs Trade Dress has aquired secondary meaning.
84.
Defendants unauthorized use and copying of the the Trade Dress or sufficiently
above.
similar versions of the Trade Dress has caused and is likely to cause confusion, deception and
mistake by creating the false and misleading impression that Defendant Spangler's goods are
approved by Plaintiff as a result of the Trade Dress attached to said goods, or that Defendant
Spangler's goods are affiliated, connected or association with Plainitff, or have the sponsorship,
endorsement or approval of Plaintiff
26
85.
Defemdants have made false misrepresentations, false descriptions, and false
designations of origin of Defendant Spangler's goods in violation of 15 U.S.C. 1125(a), and

Defendants activities have caused and, unless enjoined by this Court, will continue to cause a
likelihood of confusion and deception of the trade and public and injury to Plaintiffs goodwill
and reputation as symbolized by the Trade Dress for which Plaintiff has no adquate remedy at
law.
86.
Defendants conduct has caused and is likely to continue causing, substantial
injury to the public and to Plaintiff.

COUNTY
Common Law Trademark Infringement and Unfair Competition under Virginia

Common Law Asserted by Plaintiff Against Defendants
87.
Plaintiff repeats and realleges every allegation set forth in Peiragraphs 1
through 86 above.
88.
The aforesaid acts of Defendants constitute common-law trademark infnngement,
misappropriation of Plaintiffs goodwill, and unfair competition under Virginia common law.
89.
Defendants activities, as described above, have damaged the reputation and
goodwill held by the Trademarks and the value thereof. Defendants' wrongful acts have
irreparably injured Plaintiff as set forth above, and will continue to do so unless and until such
acts are enjoined by this Court.
90.
Plaintiff was the first party to use the Trademarks and thus has a common law
right to prevent others from using the Trademarks or from using confusingly similar Trademarks.
COUNT VI
Common Law Trademark Infringement and Unfair Competition under Ohio

Common Law Asserted by Plaintiff Against Defendants
27
91.
above.
COUNT VII
Unfair Competition under Virginia's Consumer Protection Act, Virginia Stat. Ann.
59.1-200(A) Asserted by Plaintiff Against Defendants
92.
93.
Defendants violated 59.1-200(A)(2) of Virginia's Consumer Protection Act by
above.
misrepresenting the source, sponsorship, approval, or certification of goods or services.

94.
misrepresenting the affiliation, connection, or association of the supplier, and of the Defemdant's
goods or services, with Plaintiff.
95.
misrepresenting that goods or services have certain quantities, characteristics, ingredients, uses, or
benefits since specific information is converyed to the consumer through the unauthorized use of
96.
misrepresenting that goods or services are of a particular standard, quality, grade, style, or model
since specific information is converyed to the consumer through the unauthorized use of
97.
Defendants, through the unauthorized use and reproduction of Plaintiffs
Trademarks, engaged in an intentional misrepresentation designed to cause consumers to believe
28
that Plaintiff was endorsing the safety of the goods through use of the Trademarks and further
misled consumers by improperly benefitting from the goodwill built up and attached to the
Trademarks as a result of Plaintiff s efforts.
COUNT VIII
Deceptive Trade Practices under Ohio Law, O.R.C. 4165.02(A), Asserted by

98.
99.
above.
Trademarks, violated O.R.C. 4165.02(A)(2) by causing the likelihood of confusion or
misunderstanding as to the source, sponsorship, approval, or certification of Defendant's goods.

100.
Trademarks, violated O.R.C. 4165.02(A)(3) by causing a likelihood of confusion or

misunderstanding as to affiliation, connection, or association with, or certification by Plaintiff.
101.
Trademarks, violated O.R.C. 4165.02(A)(7) by representing that goods or services have
sponsorship, approval, characteristics, ingredients, uses and benefits that they do not have since
the use of Plaintiffs Trademarks are intended to convey specific information to the consumer.
102.
Trademarks, violated O.R.C. 4165.02(A)(2) by representing that Defendant has a sponsorship,

approval, status, affiliation, or connection with Plaintiff that Defendant does not have.
COUNT IX
Dilution of an Unregistered Trademark under the Federal Trademark Dilution Act

(15 U.S.C. 1125(c) Asserted by Plaintiff Against Defendants
29
103.
Plaintiff repeats and realleges every allegation set forth in Paragraphs 1 through
102 above.
104.
Plaintiff's Trademarks were famous since they were used in interstate commerce
and both featured and advertised in various magazines, newspapers and trade journals including
USA Today.
105.
Defendants, without Plaintiffs authority, consent or knowledge, commenced
using Plaintiffs Trademarks in commerce thereby diluting Plaintiffs Trademarks.

106.
That Defendants have used the identical Trademarks in commerce and Defendants
have also used modified versions of the Trademarks that give rise to an association between the
marks that is likely to impair the distinctiveness of Plaintiffs Trademarks.
107.
That Defendants
have
used
the
identical
Trademarks
in
commerce
and
Defendants have also used modified versions of the Trademarks that give rise to an association
between the marks that is likely to harm the reputation of Plaintiff s Trademarks.
108.
Defendants' use of Plaintiffs Trademark and sufficiently similar versions thereof
in commerce is likely to cause dilution by blurring since Defendant's use impairs the
distinctiveness of Plaintiff s Trademarks which were central to Plaintiffs business.
109.
Defendants' use of Plaintiffs Trademarks and sufficiently similar versions
thereof in commerce is likely to cause dilution by tarnishing as Defendant's use harms the
reputation of Plaintiffs Trademarks as it affects consumer's trust in Plaintiffs Trademarks.
COUNT X
Federal Copyright Infringement Under the Copyright Act (17 U.S.C. 501(a)) Asserted by
Plaintiff Against All Named Defendants
30
110.
109 above.
111.
Plaintiff has applied for copyright registration with the Copyright Office of each
of its Trademarks in Exhibit B.
112.
Defendants have copied constituent, original elements of the Plaintiff's copyrights
that are original.
113.
Defendants have encroached upon the exclusives right conferred by Plaintiffs
copyrights by reproducing the Trademarks, preparing derivatives of the Trademarks, distributing

copies of the Trademarks, displaying the Trademarks publicly in marketing materials and on
product packaging in interstate commerce.
COUNT XI
False Advertising under Section 43(a) of the Lanham Act 15 U.S.C. 1125(a)(1)(B)
Asserted by Plaintiff Against Defendants
114.
113 above.
115.
Defendants have used the Trademarks without permission in interstate commerce
in connection with the provision of goods and/or services, including the promotion, advertising
and Trade Dress of various brands of Defendant Spangler's candy.
116.
Through the unauthorized use of the Trademarks in commercial advertising,
promotion and packaging. Defendants have misrepresented the nature, characteristics, qualities,
and origin of Defendant's goods and commercial activities by using the goodwill and consumer
trust in the Trademarks without Plaintiffs authority or consent.
117.
Defendant made a false and misleading description of fact and representation of
31
fact in commercial advertising by improperly using the Trademarks in advertising, marketing

materials and product packaging as Plaintiffs practice of affixing the Trademarks on certain
packaging is intended to inform the consumer as to the safety of the products based on Plaintiffs
independent research and is relied on by the consumer as a result of the goodwill Plaintiff has
built in the allergy free community.
118.
Defendants' misrepresentation are material, in that it is likely to influence the
consumers' purchasing decisions as Plaintiffs customers rely on the Trademarks for their
physical health.
119.
Defendants' misrepresentations actually deceived or had the tendency to deceive a
substantial segment of the consumers who purchase allergy free products.

120.
Defendants placed the false or misleading statements in interstate commerce as
stated herein.
121.
Plaintiff has been or is likely to be injured as a result of Defendants'
misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated

with the Trademarks.
COUNT XII
False Advertising under Va. Code 18.1-216 Asserted by Plaintiff Against

Defendants
122.
121 above.
123.
Defendants, with the intent to sell and dispose of Defendant Spangler's goods to
the public in the Commonwealth of Virginia and throughout the country, made, published,
disseminated, circulated and placed, or caused to be made, published, disseminated, circulated and
32
placed, the Trademarks before the pubHc in marketing materials, promotional materials,
newspapers, websites, various publications and on the packaging of Defendant Spangler's goods,
and advertisements regarding goods offered to the public.
124.
As a result of Defendants' unauthorised use and reproduction of Plaintiffs
Trademarks, Defendant's advertisements contained untrue assertions, representations and

statements of fact that were to be conveyed through the consumer through the Trademarks,
namely that the products were in conformity with the usual information conveyed by Plaintiffs
Trademarks and that Plaintiff was somehow associated with Defendant.
125.
Defendants advertising was untrue, deceptive and misleading and utilized to
induce the public to purchase Defendant Spangler's candy products,

COUNT XIII
Tortious Interference with Business Relations, Opportunities, Expectancy and

Prospective Economic Advantage Asserted by Plaintiff Under Virginia Common Law
Against Defendants
126.
125 above.
127.
Plaintiff had the existence of a business relationship and expectancy with a
probability of a prospective economic advantage to Plaintiff as many consumers relied on

Plaintiffs Trademarks to purchase products through Plaintiff
128.
Defendants had knowledge of the business relationships, opportunities, and
prospective economic advantage Plaintiff had with members of the allergy free community as a
result of being one of the first brick and mortal allergy-free stores in the nation and as a result of
the interstate commerce Plaintiff engaged in.
129.
Defendants acted intentionally when it used Plaintiffs Trademarks without

33
Plaintiffs knowledge, consent or authority thereby diminishing the trust and value consumers
had in Plaintiffs Trademarks and business model thereby adversely affecting Plaintiffs sales,
business relations, opportunities, prospective economic advantage and expectancy, all of which
Plaintiff was commercially reasonable to anticipate.
130.
There is a reasonable certainty that, absent Defendants' misconduct. Plaintiff
would have realized the economic advantage, opportunities and expectancy.

131.
As a direct and proximate result of these tortious acts, as described above.
Plaintiffs industry reputation, and relationships with current and prospective customers and
industry contacts have been irreparably damaged, resulting in a loss of sales and other damage to
Plaintiffs economic interests.
COUNT XIV
Tortious Interference with Business Relations, Opportunities, Expectancy and

Prospective Economic Advantage Asserted by Plaintiff Under Ohio Common Law Against
All Defendants
132.
131 above.
COUNT XV
Breach of Contract under Virginia and/or Ohio Common Law Asserted by Plaintiff
and Derivative Plaintiff Against Defendants
133.
132 above.
134.
Defendants violated the "Use of the Navan Foods Site" section of the "Terms and
Conditions" page, contained on Navan Foods' website, which states as follows: "The Navan
Foods Site contains copyrighted material, trademarks and other proprietary information
34
including, but not limited to, text, software, logos, photos, video, graphics, music and sound, and
the entire contents of the Navan Foods Site are copyrighted as a collective work under the United
States copyright laws. Navan Foods, L.L.C. is the owner of the copyright in the entire Navan
Foods Site. Navan Foods LLC owns a copyright in the selection, coordination, arrangement and
enhancement of such content, as well as in the content original to it. Each third party content
provider owns the copyright in content original to it. You may not modify, publish, transmit,
display, participate in the transfer or sale, create derivative works, or in any way exploit the
content of the Navan Foods Site or any portion of it. Except as otherwise expressly permitted
under copyright law, you may not copy, redistribute, publish, display or commercially exploit
any material from the Navan Foods Site without the express permission of Navan Foods LLC
and the copyright owner. In the event of any permitted copying, redistribution or publication of
material from the Navan Foods Site, no changes in or deletion of author attribution, trademark,
legend or copyright notice shall be made. You acknowledge that you do not acquire any
ownership rights by downloading copyrighted material. Without limiting the generality of the
foregoing, you agree that any text, photo, graphic, audio, and/or video on the Navan Foods Site
shall not be broadcast, rewritten for broadcast or publication or redistributed directly or indirectly
in any media. Neither these materials nor any portion thereof may be stored in a computer except
for personal and non-commercial use."
135.
Defendants violated the "Trademarks" section of the "Terms and Conditions"
page, contained on Navan Foods website, which states "Any trademarks, logos, service marks,
and trade names used on the Navan Foods Site are the property of their respective owners
including, in some instances, Navan Foods LLC, and may not be used in connection with any
product or service or in any manner whatsoever without the prior written permission of Navan
35
Foods LLC." The "Terms and Conditions" page also states that all violations are subject to the
laws of the Commonwealth of Virginia and that attorney's fees and costs can be recovered from
a party who violates the terms and conditions as stated therein.

136.
The "Terms and Conditions" located on Plaintiffs website were easily visible and
accessible to all visitors to the website, and therefore Defendants had or should have had
knowledge of these "Terms and Conditions."

137.
Defendants have breached these "Terms and Conditions" by copying, using and
infringing Plaintiffs Trademarks and copyrights without permission. As a result of Defendants'
breaches of contracts, the Plaintiff has suffered damages caused by the breaches, including but
not limited to loss of income, damage to reputation, damage to the Trademarks, dilution of the
Trademarks.
COUNT XVI
Civil Conspiracy under Virginia Common Law Asserted by Plaintiff Against

Defendants
138.
Plaintiff and Derivative Plaintiff repeat and reallege every allegation set forth in
Paragraphs 1 through 137 above.
139.
Defendants have agreed to participate in conspiracies to engage in each of the
other Counts as pled herein.
140.
The unlawful overt acts committed by Defendants as alleged herein have resulted
in injuries to Plaintiff, in furtherance of the common scheme as alleged herein.

COUNT XVII
Civil Conspiracy under Ohio Common Law Asserted by Plaintiff Against

Defendants
141.
Plaintiff and Derivative Plaintiff repeat and reallege every allegation set forth in
36
Paragraphs 1 through 140 above.

JURY TRIAL DEMANDED
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff hereby demands a
trial by jury on any issue triable of right by a jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that this Court enter judgment in its favor on each and
every Count set forth above, and award it relief including, but not limited, the following:
A.
An Order declaring that Defendants' use of Plaintiffs Trademarks and altered but
sufficiently similar and/or confusing derivations thereof and/or Plaintiffs Trade Dress was an
unlawful infringement and constitutes unfair competition under Section 43(a) of the Lanham Act
15 U.S.C. 1125(a), Virginia common law and/or Ohio common law;
B.
sufficiently similar and/or confusing derivations thereof and/or Plaintiffs Trade Dress was an
unlawful infringement and constitutes False Designation of Origin, False or Misleading

Description of Fact and/or False or Misleading Representation of Fact under Section 43(a)(1)(A)
of the Lanham Act 15 U.S.C. 1125(a)(1);
C.
sufficiently similar and/or confusing derivations thereof constitutes Unfair Competition under
Virginia's Consumer Protection Act, Virginia Stat. Ann. 59.1-200(A);
D.
sufficiently similar and/or confusing derivations thereof constitutes Deceptive Trade Practices
under Ohio Law, O.R.C. 4165.02(A);
E.
37
sufficiently similar and/or confusing derivations thereof constitutes Dilution of an Unregistered

Trademark under the Federal Trademark Dilution Act (15 U.S.C. 1125(c));
F.
An Order declaring that Defendants' unauthorized reproduction of Plaintiffs
copyrights (which include the Trademarks) and altered but sufficiently similar and/or confusing
derivations thereof constitutes Federal Copyright Infringement Under the Copyright Act (17
U.S.C. 501(a));
G.
An Order declaring that Defendants' unauthorized use of Plaintiffs Trademarks
and altered but sufficiently similar and/or confusing derivations thereof constitutes False
Advertising under Section 43(a) of the Lanham Act 15 U.S.C. 1125(a)(1)(B);
H.
and altered but sufficiently similar derivations thereof constitutes False Advertising under Va.
Code 18,1-216;
I.
and altered but sufficiently similar and/or confusing derivations thereof constitutes Tortious
Interference with Business Relations, Opportunities, Expectancy and Prospective Economic
Advantage Under Virginia Common Law and/or Ohio Common Law;
J.
An Order declaring that Defendants' unauthorized use and reproduction of
Plaintiffs Trademarks and altered but sufficiently similar and/or confusing derivations thereof
constitutes a Breach of Contract under Virginia and/or Ohio common Law;
K.
An Order declaring that Defendants' unauthorized use and reproduction of
Plaintiffs Trademarks and altered but sufficiently similar derivations thereof constitutes Civil
Conspiracy under Virginia Common Law and/or Ohio Common Law to commit all of the
unlawful actions as asserted in the Counts herein;
38
L.
A preliminary and permanent injunction issued under 15 U.S.C. 1116 enjoining
Defendants and their respective employees, agents, officers, directors, members, shareholders,
subsidiaries, related companies, affiliates, and all persons in active concert or participation with
any of them from using or otherwise reproducing Plaintiffs Trademarks or sufficiently similar
and/or confusing derivations thereof under 15 U.S.C. 1116;
M.
An Order issued and judgment entered under 15 U.S.C. 1117(a) wherein
Plaintiff shall be entitled to recover Defendants' profits associated with the sale from all products
wherein Defendants used Plaintiffs Trademarks, and altered but sufficiently similar and/or
confusing derivations thereof;
N.
Plaintiff shall be entitled to recover all damages sustained by Plaintiff as a result of Defendants
improper use of Plaintiffs Trademarks, and altered but sufficiently similar and/or confusing
derivations thereof;
O,
Plaintiff shall be entitled to recover all costs of the action incurred by Plaintiff as a result of
Defendants improper use of Plaintiffs Trademarks, and altered but sufficiently similar and/or
P.
Plaintiff shall be entitled to recover reasonable attorney's fees from Defendants a result of
Defendants improper use of Plaintiffs Trademarks, and altered but sufficiently similar and/or
Q.
A temporary and final injunction issued under 17 U.S. Code 502 enjoining
Defendants and their respective employees, agents, officers, directors, members, shareholders.
39
any of them from copying or otherwise reproducing Plaintiffs Trademarks or sufficiently similar
and/or confusing derivations thereof;
R.
An Order issued and judgment entered under 17 U.S.C. 504 wherein Plaintiff
shall be entitled to recover all costs of the action incurred by Plaintiff as a result of Defendants
improper copying and reproduction of Plaintiffs Trademarks, and altered but sufficiently similar
S.
shall be entitled to recover all actual damages incurred by Plaintiff as a result of Defendants
improper copying and reproduction of Plaintiffs Trademarks, and altered but sufficiently similar
T.
shall be entitled to recover profits of the Defendants from the sale of and of Defendant Spangler's
goods that featured the improper copying and reproduction of Plaintiffs Trademarks and altered
but sufficiently similar and/or confusing derivations thereof or that are otherwise attributable to
Defendants' copyright infringement;
U.
shall be entitled to recover full costs and attorney's fees from the Defendants as a result of
V.
An Order issued and judgment entered wherein Plaintiff shall be entitled to
recover actual damages and disgorgement of profits for copyright infringement from the
Defendants as a result of Defendants' copyright infringement;
W.
40
shall be entitled to recover full costs and attorney's fees from the Defendants as a result of
X.
A preliminary and permanent injunction be entered under Va. Code 59.1-203
wherein Defendants must refrain from all of the actions which constitute violations of any
section of the Virginia Consumer Protection Act as pled herein;
Y.
An Order issued and judgment entered under Va. Code 59.1-206 wherein the
Attorney General, the attorney for the Commonwealth, or the attorney for the county, city, or
town may recover for the Literary Fund, upon petition to the court, a civil penalty of not more
than $2,500 per wailful violation of the Virginia Consumer Protection Act;
Z.
town may recover for the Literary Fund, upon petition to the court, a civil penalty of not more
than $2,500 per willful violation of the Virginia Consumer Protection Act;
AA.
town any applicable civil penalty or penalties, costs, reasonable expenses incurred by the state or
local agency in investigating and preparing the case not to exceed $1,000 per violation, and
attorney's fees to be paid into the general fund of the Commonwealth or of the county, city, or
town which such attorney represented;
BB.
An Order issued and judgment entered under Va. Code 59.1-68.3 wherein
Plaintiff shall be entitled to recover damages, attorney's fees and court costs from the Defendants
as a result of Defendants' actions which constitute False Advertising under the Virginia Code as
pled herein;
41
CC.
A temporary and final injunction issued under Va. Code 18.2-245 enjoining
any of them from using, copying or otherwise reproducing Plaintiffs Trademarks or sufficiently
similar and/or confusing derivations thereof as a result of Defendants* actions which constitute
False Advertising under the Virginia Code;
DD.
A temporary and final injunction issued under O.R.C. 4165.02(A)(1) enjoining
any of them from using, copying or otherwise reproducing Plaintiffs Trademarks or sufficiently
similar and/or confusing derivations thereof as a result of Defendants' actions which constitute
Deceptive Trade Practices under Ohio State law;

EE.
An Order issued and judgment entered under O.R.C. 4165.02(A)(2) wherein
Plaintiff shall be entitled to recover actual damages from the Defendants as a result of
Defendants' Deceptive Trade Practices under Ohio law;
FF.
An Order issued and judgment entered under O.R.C. 4165.02(B) wherein
Plaintiff shall be entitled to recover reasonable attorney's fees from the Defendants as a result of
Defendants' Deceptive Trade Practices under Ohio law;
GG.
A temporary and final injunction issued enjoining Defendants and their respective
employees, agents, officers, directors, members, shareholders, subsidiaries, related companies,

affiliates, and all persons in active concert or participation with any of them from using, copying
or otherwise reproducing Plaintiffs Trademarks or sufficiently similar and/or confusing

derivations thereof as a result of Defendants' infringement of Plaintiffs Trademarks which
42
constitutes unfair trade practices under federal law as pled herein;

HH.
An Order issued and judgment entered under 0,R.C. 4165.02(B) wherein
Plaintiff shall be entitled to recover reasonable attorney's fees from the Defendants as a result of
Defendants* Deceptive Trade Practices under Ohio law;

II.
Plaintiff is entitled to injunctive relief and to recover Defendant's profits, actual
damages, enhanced profits and damages, costs and reasonable attorney's fees pursuant to 15
U.S.C. 1125(a), 1116 and 1117. as a result of Defendants' wrongful Trademarks infnngement
that constitute unfair competition;
JJ.
An Order directing Defendants to file with this Court and serve on Plaintiffs
attorneys, thirty (30) days after the entry of any permanent injunction, a report in writing and
under oath setting forth in detail the manner and form in which they have complied with the
injunction;
KK.
An Order requiring Defendants to pay Plaintiff and Derivative Plaintiff
compensatory damages and punitive damages in an amount as yet undetermined for each of the
above stated Counts;
LL.
An Order requiring Defendants to pay Plaintiff compensatory damages and lost
profits in an amount as yet undetermined caused by the foregoing unlawful acts, and trebling such
damages in accordance with 15 U.S.C. 1117 and other applicable laws;
MM.
An Order requiring Defendants to pay Plaintiffs costs and attorneys' fees in this
action pursuant to 15 U.S.C. 1117 and other applicable laws;

NN.
An Order requiring Defendants to pay compensatory and punitive damages, and
restitution, directly to Plaintiff as a result of their violation of the above stated Counts, including
Intentional Interference with Business Relations, and Breach of Contract; and
43
00.
Such other and further relief as the Court may deem appropriate.
Dated: March 31, 2016
Respectfully submitted.
W. Todd Miller (VA Bar No. 26466)

tmiller@bakerandmiller.com
BAKER & MILLER PLLC
2401 Pennsylvania Avenue, NW

Suite 300
Washington, DC 20037
Telephone: 202.663.7820
Fax: 202.663.7849
Tony C. Richa
richa@richalawgroup.com
Richa Law Group, LLC
One Bethesda Center
4800 Hampden Lane, Suite 200

Bethesda, MD 20814
Telephone: 301-424-0222
Facsimile: 301-576-8600
Attorneysfor PlaintiffNavan Foods, LLC

Navan Foods v. Spangerl Candy - Trademark Complaint PDF

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Navan Foods v. Spangerl Candy - Trademark Complaint PDF

Uploaded by

Copyright:

Available Formats

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 1 of 44 PageID# 1

NAVAN FOODS, LLC

CLERK US DISTRICT COURT

Civil Action No.

SPANGLER CANDY COMPANY,

FISHER DESIGN, INC.

Specifically, the Defendants stole

Plaintiffs intellectual property (including Plaintiffs trademarks and copyrights, as described

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 2 of 44 PageID# 2

As such. Defendant Fisher acted in concert with Defendant Spangler, and,

incorporated input from sales, production and quality assurance."

Defendants' legal violations include, inter alia. Federal Infringement of an

Unregistered Trademark and False Designation of Origin, False or Misleading Description of

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 3 of 44 PageID# 3

Relations, Opportunities, Expectancy and Prospective Economic Advantage Asserted by Plaintiff

In the alternative, pursuant to 28 U.S.C. 1332(a)(1), this Court has diversity

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 4 of 44 PageID# 4

is a limited liability company organized to do business in the Commonwealth of Virginia,

broad distributorship network in the Commonwealth of Virginia that generates a substantial

Venue is proper in this District pursuant to 28 U.S.C. 1391(b)-(c) and 1400(a)

Plaintiff is a limited liability company orgsinized under the laws of the

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 5 of 44 PageID# 5

Plaintiff is a limited liability company that was started by Jennifer Elizondo, a

handled in the same room, the results could be deadly.

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 6 of 44 PageID# 6

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 7 of 44 PageID# 7

The article marked as Plaintiffs Exhibit C details Plaintiffs business concept

The shelf cards referred to in Exhibit C reflected a coding system developed by

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 8 of 44 PageID# 8

Plaintiffs Trademarks often convey information that a consumer cannot ascertain

On or about late August 2008, Plaintiff launched a website at

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 9 of 44 PageID# 9

Navan Foods' concept is to provide shoppers with point of sale

Plaintiffs Trademarks as featured in her shelf cards, website and marketing

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 10 of 44 PageID# 10

In an article posted on GoDairyFree.org on September 1, 2008, the author

Plaintiffs com-free proprietary icon conveys this information to the consumer.

There were many independent articles written featuring Plaintiffs Trademarks.

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 11 of 44 PageID# 11

The Trademarks are an integral part of Plaintiffs branding as the Trademarks

and Twitter pages.

Trademarks during a PowerPoint presentation made at the event.

The Trademarks were also featured in Plaintiffs print advertisements, including,

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 12 of 44 PageID# 12

Plaintiff first used its Trademarks in commerce in the Commonwealth of Virginia

Plaintiff began using its Trademarks in interstate commerce on or about August

Plaintiffs Trademarks are inherently distinctive.

Plaintiffs Trademarks have become distinctive by acquiring a secondary meaning

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 13 of 44 PageID# 13

views on Plaintiffs website.

"What a remarkable idea...your store is like a paradise to me."

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 14 of 44 PageID# 14

"This will help other moms out[.]"

Due to the inherent distinctiveness, special characteristics, and unique nature of

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 15 of 44 PageID# 15

INFORMATION ABOUT DEFENDANTS AND DEFENDANTS' WRONGFUL ACTS

Defendant Spangler is an Ohio corporation that was formed on March 30,1946.

Defendant Spangler is a family-owned, private company that has been making

Case 2:16-cv-00157-HCM-LRL Document 1 Filed 03/31/16 Page 16 of 44 PageID# 16

On or about April 1, 2014, Plaintiff discovered that Defendants were imlav^lly

When Plaintiffs Trademarks first appeared on Plaintiffs website on or about

from Plaintiffs website and copied them to Defendant Spangler's website at