Case 6:16-cv-01155-EFM-GLR Document 1 Filed 05/27/16 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
TWO MEN AND A
TRUCK/INTERNATIONAL, INC.,
Plaintiff,
v.
GET A MOVE ON, INC. (formerly 2 GUYS
& A TRUCK, INC.), and PAUL WELLS
and AMANDA WELLS, individually and
d/b/a GET A MOVE ON, 2 GUYS, and
2 GUYS & A TRUCK,
Defendants.

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Civil Action No.

COMPLAINT
Plaintiff Two Men and a Truck/International, Inc. (Plaintiff) states the following for its
Complaint against Defendant Get a Move On, Inc., formerly 2 Guys & A Truck, Inc., and Paul
Wells and Amanda Wells, individually and doing business as Get a Move On, 2 Guys, and
2 Guys & A Truck (Defendants).
NATURE OF THE CASE
1.

This is an action at law and in equity for trademark infringement, false

designation of origin, and unfair competition arising under the Trademark Act of 1946, 15
U.S.C. 1051, et seq. (2004) (the Lanham Act), and the State of Kansas, and for breach of
contract and indemnification.
THE PARTIES
2.

Plaintiff is a Michigan corporation having a principal place of business at 3400

Belle Chase Way, Lansing, Michigan 48911. Plaintiff is a party to a settlement agreement dated

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October 11, 2002 (the Settlement Agreement), with Defendant Get a Move On, Inc., which
was then known as 2 Guys & A Truck, Inc.
3.

Upon information and belief, Defendant Get a Move On, Inc., formerly known as

2 Guys & A Truck, Inc., is a Kansas corporation having a principal place of business at 520
North Washington Street, Wichita, Kansas 67214.
4.

Upon information and belief, Defendants Paul and Amanda Wells are residents of

the State of Kansas, with an address of 813 N. Cedar Park, Wichita, Kansas 67235. On further
information and belief, Paul and Amanda Wells are the principals of Get a Move On, Inc.
JURISDICTION & VENUE
5.

This Court has subject matter jurisdiction 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 common law claims under 28 U.S.C. 1338 and 1367.
6.

This Court has personal jurisdiction over Defendants because Defendants reside

in the State of Kansas, do business in the State of Kansas, have engaged in acts or omissions
within the State of Kansas causing injury, and have otherwise established contacts with the State
of Kansas making the exercise of personal jurisdiction proper.
7.

Venue is proper in this District under 28 U.S.C. 1391(b)(1) and (2) because

Defendants reside in this District, and a substantial part of the events or omissions giving rise to
this action occurred in this District.
FACTUAL BACKGROUND
8.

Plaintiff is in the business of franchising to others the right and license to use its

TWO MEN AND A TRUCK service mark and moving-business operating system. Plaintiffs
franchised system is the largest local moving company in the United States. Presently, there are

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more than three hundred and forty (340) TWO MEN AND A TRUCK locations worldwide,
including locations in thirty-nine (39) states within the United States licensed by Plaintiff, and
there are over two thousand, one hundred (2,100) moving trucks in operation displaying the
TWO MEN AND A TRUCK mark. Each TWO MEN AND A TRUCK franchise is operated
pursuant to a franchise agreement under which Plaintiff imposes certain obligations and retains
certain rights to help ensure the protection of Plaintiffs service marks and the uniform quality of
services provided by Plaintiffs franchisees in the TWO MEN AND A TRUCK franchise system.
9.

Plaintiff has two franchised TWO MEN AND A TRUCK locations in the State of

Kansas, including one franchisee serving Wichita, Kansas, and the surrounding area.
10.

Plaintiff, itself or through its franchisees, has used the TWO MEN AND A

TRUCK name and service mark, either standing alone or in combination with design elements in
connection with moving-related services since at least as early as 1988. Plaintiffs use of its
TWO MEN AND A TRUCK name and service marks has been valid and continuous since the
date of first use and has not been abandoned.
11.

Plaintiff is the owner of several trademark registrations issued by the U.S. Patent

and Trademark Office (USPTO) for its TWO MEN AND A TRUCK trademark, including
U.S. Trademark Reg. No. 4,340,844, issued by the USPTO on May 28, 2013, for the mark TWO
MEN AND A TRUCK, in standard characters, for moving services, namely, the provision of
trucks and labor for packing, loading, delivery, and unloading of goods and driving of trucks
rented by the customers. A true and correct copy of the Certificate of Registration for this mark
is attached as Exhibit A. This mark is referred to herein as the TWO MEN AND A TRUCK
Mark.

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12.

In 2002 Plaintiff learned of and objected to Defendants use of the confusingly

similar name 2 Guys & A Truck in connection with their moving business.
13.

On October 11, 2002, Plaintiff and Defendant Get a Move On, Inc., then known

as 2 Guys & A Truck, Inc., entered into the Settlement Agreement, attached as Exhibit B,
whereby Get a Move On, Inc. agreed to cease permanently using 2 Guys & A Truck in
connection with its moving business.
14.

Specifically, in Section 1(b) of the Settlement Agreement, Get a Move On, Inc.

agreed that by no later than January 1, 2004, it would cease[] the use of any and all advertising
or other materials that display the name 2 Guys & A Truck or any designation confusingly
similar to TWO MEN AND A TRUCK or 2 Guys & A Truck, including, but not limited
to, advertising in or signage on truck displays.
15.

In Section 3 of the Settlement Agreement, Get a Move On, Inc. agreed that if it

has failed to completely cease advertising as 2 Guys & A Truck moving business on or before
January 1, 2004 or has otherwise violated the terms of [the Settlement Agreement], then it will
indemnify [Plaintiff] for any and all losses, damages and expenses, including litigation costs and
reasonable attorneys fees incurred by it to enforce the terms of [the Settlement Agreement].
16.

Defendant Paul Wells signed the Settlement Agreement as President for

Defendant Get a Move On, Inc.

17.

In 2012, Plaintiff discovered that despite the terms of the Settlement Agreement,

the website, vehicles, and Internet advertising associated with Defendants moving business
demonstrated multiple unauthorized uses of the 2 Guys & A Truck name, including references
to Defendants business as formerly 2 Guys & A Truck.

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18.

In a letter dated April 24, 2012, attached as Exhibit C, Plaintiff demanded that

Defendants completely address these severe and material breaches.

19.

Following receipt of Plaintiffs April 24, 2012 letter, Defendant Paul Wells

contacted Plaintiffs counsel and assured him that Defendants would comply with Plaintiffs
demands and the terms of the Settlement Agreement.
20.

Despite these assurances, Plaintiff recently discovered that Defendants have

continued to use, without authorization and in violation of the Settlement Agreement, the
designation 2 Guys & A Truck in connection with their moving business.
21.

At a minimum, this unauthorized use includes branding Defendants service

vehicles with the designation formerly 2 Guys & A Truck, in the manner shown in Exhibit D
and below:

22.

Defendants unauthorized use of the designation 2 Guys & A Truck in

connection with their moving business has resulted in actual consumer confusion.
23.

Defendants unauthorized use of the designation 2 Guys & A Truck in

connection with their moving business has caused consumers to believe mistakenly that
Defendants and/or their moving services business are affiliated or associated with or are licensed
or endorsed by Plaintiff.

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24.

Defendants unauthorized use of the designation 2 Guys & A Truck in

connection with their moving business has caused, is causing, and will continue to cause harm to
Plaintiffs business, reputation, and goodwill.
25.

Defendants unauthorized use of the designation 2 Guys & A Truck in

connection with their moving business creates a likelihood of consumer confusion as to the
source, sponsorship, or affiliation of Defendants business and services with Plaintiff.
26.

Plaintiff has incurred and continues to incur losses, damages, and expenses,

including litigation costs and reasonable attorneys fees, by reason of Defendant Get a Move On,
Inc.s failure to perform its obligations under the Settlement Agreement to discontinue use of the
2 Guys & A Truck name.
27.

All conditions precedent for bringing this lawsuit have been performed or waived.

FIRST CAUSE OF ACTION

(Infringement of Federally Registered Trademarks under 15 U.S.C. 1114)
28.

The allegations of the foregoing Paragraphs are repleaded and incorporated by

reference as if fully set forth herein.

29.

Defendants unauthorized use of a confusingly similar imitation of the TWO

MEN AND A TRUCK Mark in connection with Defendants advertising, promotion, and
offering for sale of their moving services is likely to cause confusion, mistake, or deception
among consumers as to the source, origin, or sponsorship of such services. The consuming
public is likely to believe that Defendants moving services are somehow affiliated or associated
with Plaintiff, when such is not the case.
30.

By their unauthorized use of a confusingly similar imitation of the TWO MEN

AND A TRUCK Mark in connection with the advertising, promotion, and offering for sale of
their moving services, Defendants have infringed and continue to infringe Plaintiffs federally

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registered TWO MEN AND A TRUCK Mark in violation of Section 32 of the Lanham Act, 15
U.S.C. 1114.
31.

Defendants acts of trademark infringement, as alleged herein, have injured

Plaintiff in that Plaintiff has suffered damage to its reputation and customer goodwill as a direct
and proximate result of Defendants illegal conduct. In addition, Defendants have been unjustly
enriched by reason of their trademark infringement in that they have achieved sales and profits,
and the opportunity to earn future sales and profits, as a direct and proximate result of their
illegal conduct.
32.

Defendants trademark infringement as alleged herein has caused, is causing, and

will continue to cause irreparable and inherently unquantifiable injury and harm to Plaintiffs
business, reputation, and goodwill, unless Defendants unlawful conduct is enjoined by this
Court.
33.

Plaintiff is entitled to recover all damages sustained by Defendants actions, all

profits realized by Defendants through their infringing use of a confusingly similar imitation of
the TWO MEN AND A TRUCK Mark in connection with the advertising, offering for sale, and
sale of moving services, and the costs of this action.
SECOND CAUSE OF ACTION
(Federal Unfair Competition and False Designation of Origin
under 15 U.S.C. 1125(a)(1)(A))
34.

The allegations of the foregoing Paragraphs are repleaded and incorporated by

reference as if fully set forth herein.

35.

Defendants unauthorized use of a confusingly similar imitation of the TWO

MEN AND A TRUCK Mark in connection with the advertising, promotion, and offering for sale
of their moving services constitutes unfair competition, false representation, and false

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designation of origin in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a), and
is causing and, unless enjoined by this Court, will continue to cause confusion, to cause mistake,
or to deceive purchasers and consumers as to the source, origin, or sponsorship of Defendants
services.
36.

As a direct and proximate result of Defendants unfair competition, false

representation, and false designation of origin as herein alleged, Plaintiff has suffered, and will
continue to suffer, irreparable damage and inherently unquantifiable injury and harm to its
business, reputation, and customer goodwill. Defendants unfair competition, false
representation, and false designation of origin has caused and will continue to cause Plaintiff to
lose sales to which it would otherwise be entitled, unless such unlawful conduct is enjoined by
this Court.
37.

Plaintiff is entitled to recover all damages sustained by Defendants actions, all

profits realized by Defendants through their unlawful use of a confusingly similar imitation of
the TWO MEN AND A TRUCK Mark in connection with the advertising, promotion, and
offering for sale of their moving services, and the costs of this action.
38.

Defendants actions have been willful and deliberate, entitling Plaintiff to recover

treble damages and/or profits and an award of reasonable attorneys fees against Defendants.
THIRD CAUSE OF ACTION
(Common Law Unfair Competition and Infringement)
39.

Plaintiff repeats and incorporates by reference the allegations contained in the

foregoing paragraphs as if fully set forth herein.

40.

Defendants conduct as alleged above constitutes trademark infringement and

unfair competition in violation of the common law of the State of Kansas.

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41.

Defendants trademark infringement and unfair competition as alleged above have

injured Plaintiff in that Plaintiff has suffered damage to its reputation and customer goodwill as a
direct and proximate result of Defendants illegal conduct. In addition, Defendants have been
unjustly enriched by reason of their trademark infringement and unfair competition in that
Defendants have achieved sales and profits, and the opportunity to earn future sales and profits,
as a direct and proximate result of their illegal conduct.
42.

Unless enjoined by this Court, Defendants trademark infringement and unfair

competition as herein alleged will continue to cause irreparable and inherently unquantifiable
injury and harm to Plaintiffs business, reputation, and goodwill.
43.

Defendants wrongful conduct as above alleged was accompanied by

circumstances of willfulness and deliberate indifference to the rights of Plaintiff, warranting the
assessment of punitive damages.
FOURTH CAUSE OF ACTION
(Breach of the Settlement Agreement)
44.

Plaintiff repeats and incorporates by reference the allegations contained in the

foregoing paragraphs as if fully set forth herein.

45.

Plaintiff and Defendant Get a Move On, Inc. entered into the Settlement

Agreement.
46.

The Settlement Agreement constitutes a binding contract between Plaintiff and

Defendant Get a Move On, Inc.

47.

Defendant Get a Move On, Inc. failed and refused to discontinue use of the 2

Guys & A Truck name after January 1, 2004.

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48.

Defendant Get a Move On, Inc.s failure to discontinue use of the 2 Guys & A

Truck name after January 1, 2004, constitutes a breach of Section 1 of the Settlement
Agreement.
49.

As a proximate result of Defendant Get a Move On, Inc.s failure to discontinue

use of the 2 Guys & A Truck name after January 1, 2004, Plaintiff has incurred damages in an
amount to be determined at trial.
FIFTH CAUSE OF ACTION
(Indemnification)
50.

Plaintiff repeats and incorporates by reference the allegations contained in the

foregoing paragraphs as if fully set forth herein.

51.

Section 3 of the Settlement Agreement requires Defendant Get a Move On, Inc. to

indemnify Plaintiff against any and all losses, damages, and expenses, including litigation costs
and reasonable attorneys fees, incurred by Plaintiff to enforce the terms of the Settlement
Agreement.
52.

Contrary to Section 3 of the Settlement Agreement, Plaintiff has incurred and

continues to incur monetary losses, damages, and expenses, including litigation costs and
reasonable attorneys fees, in an amount to be determined at trial, stemming from Defendant Get
a Move On, Inc.s failure to discontinue use of the 2 Guys & A Truck name after January 1,
2004.
53.

Plaintiff is entitled to a judgment granting it the monetary losses, damages, and

expenses, including litigation costs and reasonable attorneys fees, that it has incurred in
enforcing the terms of the Settlement Agreement, including bringing this lawsuit.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that a judgment be entered:
1.

Preliminarily and permanently enjoining Defendants and all affiliated or related

entities, agents, officers, employees, representatives, successors, assigns, attorneys, and all other
persons acting for, with, by, through, or under authority from Defendants, or in concert or
participation with Defendants, pursuant to the powers granted to this Court by 15 U.S.C. 1116
and relevant state statutes, from:
a. using the 2 Guys & A Truck name or any other confusingly similar imitation of
Plaintiffs TWO MEN AND A TRUCK Mark in connection with Defendants
business or services, including but not limited to the advertising or promotion of
that business or those services and use of the 2 Guys & A Truck name within
the phrases formerly known as . . . or the original . . .; and
b. using any trademark, service mark, name, logo, or source designation of any kind
that is a copy, reproduction, colorable imitation, or simulation of, or confusingly
similar to, or in any way similar to, the trademarks, service marks, or logos of
Plaintiff, or is likely to cause confusion, mistake, deception, or public
misunderstanding that Defendants business or services are the business or
services of Plaintiff, or are sponsored by or in any way related to Plaintiff.
2.

Awarding Plaintiff damages; an accounting for all profits received by Defendants

unauthorized use of a confusingly similar imitation of Plaintiffs TWO MEN AND A TRUCK
Mark; the costs of this action; pre-judgment and post-judgment interest; reasonable attorneys
fees under 15 U.S.C. 1117; and a trebling of damages and profits as authorized by law.

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3.

Directing Defendants to permanently obliterate from their service vehicles any

reference to the 2 Guys & A Truck name and to deliver up for destruction all labels, signs,
packages, receptacles, advertising, promotional materials, or the like in the possession, custody,
or control of Defendants that use the 2 Guys & A Truck name or are found to adopt or infringe
Plaintiffs TWO MEN AND A TRUCK Mark.
4.

Requiring Defendant Get a Move On, Inc. to comply with all its obligations under

the Settlement Agreement, including but not limited to discontinuing all use of the 2 Guys & A
Truck name as requited under Section 1 of the Settlement Agreement.
5.

Awarding judgment in favor of Plaintiff and against Defendant Get a Move On,

Inc. for all damages incurred by Plaintiff as a proximate result of Defendant Get a Move On,
Inc.s breach of the Settlement Agreement.
6.

Awarding judgment in favor of Plaintiff and against Defendant Get a Move On,

Inc. for all monetary losses, damages and expenses, including litigation costs and reasonable
attorneys fees, that it has incurred in enforcing the terms of the Settlement Agreement, including
bringing this lawsuit.
7.

Taxing all costs of this action against Defendants.

8.

Granting Plaintiff such other and further relief as the Court may deem just and

proper.

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DESIGNATION OF PLACE OF TRIAL

Two Men and a Truck/International, Inc. designates Wichita, Kansas, as the place of trial
of this cause of action.
This the 27th Day of May, 2016.
FOULSTON SIEFKIN LLP
1551 North Waterfront Parkway, Suite 100
Wichita, KS 67206-4466
Telephone: 316-291-9743
Fax:
866-346-2031
E-Mail:
mnorton@foulston.com
srye@foulston.com
/s/ Michael J. Norton
Michael J. Norton, KS #18732
Sharon E. Rye, KS #26180
Attorneys for Plaintiff Two Men and a
Truck/International, Inc.
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and

Christopher P. Bussert, Esq. (pro hac vice to be filed)

James W. Faris, Esq. (pro hac vice to be filed)
KILPATRICK TOWNSEND _ & STOCKTON LLP
100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4530
Phone: (404) 815-6500
Fax: (404) 815-6555
E-mail: Bussert@kilpatricktownsend.com,
JFaris@kilpatricktownsend.com
Of counsel for Plaintiff Two Men and a
Truck/International, Inc.

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