JFJ Toys v. Genovese Dba Tromp Toys - Stomp Rocket Trademark Complaint PDF

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 1 of 25
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
JFJ Toys, Inc., d/b/a D&L Company, LLC.
and Fred Ramirez.
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Plaintiffs.
vs.
DON P. GENOVESE
d/b/a TROMP TOYS
Defendants.
COMPLAINT
Civil Action No: ________________
COMPLAINT
Plaintiffs, JFJ Toys, Inc.d/b/a D&L Company (D&L) by and through its attorneys,
bring this Complaint against Don P. Genovese d/b/a TROMP TOYS (hereinafter referred to
collectively as TROMP). D&L allege as follows:
NATURE OF THE ACTION
1.
This action arises out of TROMPs willful violation of D&Ls valuable intellectual
property. D&L is the manufacturer and distributor of the famous and award-winning
childrens toy product sold under the mark STOMP ROCKET (the Word Mark).
This compressed air rocket toy product was first sold under the Word Mark in the
early 1990s by Mr. Fred Ramirez, sole owner of D&L. Mr. Ramirez created the
STOMP ROCKET brand as a suggestive reference to launching the compressed air
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toy rocket into the air by stomping on the attached bladder air pump. Since its
inception, The STOMP ROCKET has become an interactive toy and educational tool
which teaches children of all ages the principles of Science, Technology,
Engineering, and Math (STEM) and foster team-building skills through collaboration.
Through decades of hard work, innovation and marketing, Mr. Ramiriez has
developed STOMP ROCKET into a famous, worldwide staple in the toy and
education industry. Further, STOMP ROCKET has generated several follow-on
products including the Stomp Rocket Ultra, Stomp Rocket Ultra LED, Stomp Rocket
Jr. Glow, Super High-Performance Stomp Rocket, Dueling Stomp Rocket, and Stomp
Rocket Ultra Party (collectively, STOMP ROCKET TOYS).
2.
In a willful effort to exploit the commercial goodwill and famous brand recognition
of the STOMP ROCKET TOYS, Defendants, Mr. Genovese willfully created,
marketed, and distributed the counterfeit inferior product TROMP ROCKET and its
sub-brands Tromp LED Rocket, Tromp Airplane Rocket, Tromp Glow Rocket,
Tromp Day Rocket, Tromp Astro Fling, Tromp Refills, and Tromp Flingzer
(collectively, TROMP TOYS). Defendants TROMP TOYS are nearly identical in
appearance, packaging, and design to the STOMP ROCKET. Defendants have
intentionally and willfully violated D&Ls copyright, and trademark rights by
duplicating STOMP ROCKET TOYS mark, design, packaging, and creative
elements. See EXHIBIT A.
3.
The infringement and misappropriation of D&Ls intellectual property rights is both

deliberate and pre-meditated since Defendant's termination from D&L employment in
2001. During his time at D&L, Mr. Genovese had unfettered access to the product
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based on his skill set and duties with D&L, designs, customer lists, patterns, assembly
procedures, manufacturing processes, supplier list, business procedures, and
confidential and proprietary information relating to the STOMP ROCKET TOYS.
When terminated, Defendants remarked that he intended to knock off STOMP
ROCKET TOYS like that and in fact produced a counterfeit SUPER STOMP
ROCKET in 2009.
4.
The Defendant continues to develop, market, and distribute his counterfeit TROMP
TOYS and has fraudulently registered two design patents, U.S. Patent No. D679,340
and D679,339 (collectively, Design Patents) in April 2013 covering the ornamental
design of the TROMP TOY. See EXHIBIT B.
5.
The Defendant further misrepresents TROMP TOYS as STOMP ROCKET TOYS at

tradeshows and industry leading website such as <hktdc.com/manufacturerssuppliers/Tromp-Toys/en/1X09BYY8/hktdc.com> and ,
<spielwarenmesse.de/fair/exhibitors2016/exhibitors/?L=1&tx_nfmedb_exhibitors%5Bparams%5D%5BobjId%5D=61450
4&tx_nfmedb_exhibitors%5Baction%5D=detail&tx_nfmedb_exhibitors%5Bcontroll
er%5D=Exhibitors&t=1453314276&cHash=cc4c90efa2b5a88e57a1d447632c3b2e>.
Prominently displaying TROMP TOYS with Stomp Rocket either below or
adjacent to it. See EXHIBIT C
6.
As set forth below, Defendants actions constitute willful copyright infringement in

violation of the federal Copyright Act of 1976, trademark infringement in violation of
the federal Lanham Act, as well as trademark, and trade secret violations under the
common laws of Florida.
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7.
By this action, Plaintiffs seek fair redress for Defendants infringement of its
copyright and misuse and infringement of its trademark and Trade Dress, including
damages and injunctive relief, as allowable under Federal and Florida law.
THE PARTIES
8.
Plaintiff JFJ Toys Inc. is a Delaware Corporation with a business address as in

Porterville, CA. D&L Company is a fictitious business name of JFJ Toys, as
registered with Tulare County, CA.
9.
Plaintiff Fred Ramirez is a citizen and resident of Camp Nelson, California.
10.
On information and belief, Defendant Don P. Genovese is an individual whose

residence is listed in Arroyo Grande, CA.
11.
Defendant Don P. Genovese is a resident of the state of California and President and
owner of TROMP.
JURISDICTION AND VENUE
12.
This is a civil action seeking monetary, declaratory, and injunctive relief for copyright
infringement under the Copyright Act of 1976 as amended 17 U.S.C. 101, et seq.,
trademark infringement, unfair competition, and unfair trade practices under the
Lanham Act, 15 U.S.C. 1001, and violation of the laws of the State of Florida,
Fla. Stat. 542.335(1)(b)(1), 501 et seq., and 688 et seq. governing Floridas
deceptive and unfair trade practices, trademark, and trade secret laws.
13.
On information and belief, this Court has personal jurisdiction over Defendants Mr.
Genovese pursuant to the laws of the State of Florida, including under Floridas longarm statute, Fla. Stat. 48.193, as a result of substantial contacts with the forum by
Defendants including the transaction of business in the state, the contracting to
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market, distribute and sell goods in the state, the derivation of substantial revenue
from goods used or consumed in the state, the causation of tortious injury in the state
by act or omission outside the state.
14.
This court has subject matter jurisdiction to hear Plaintiffs copyright, trademark
infringement, and unfair competition claims under 17 U.S.C. 101 et seq.; 15
U.S.C. 1125(a) and (c); and 28 U.S.C. 1331 and 1338.
15.
Venue of this action is proper pursuant to 28 U.S.C. 1400(a) and 1391(b).

FACTS
PLAINTIFFS STOMP ROCKET
16.
In 1992, Fred Ramirez designed, developed and marketed the air-compressed toy
rocket he called STOMP ROCKET. The toy consists of two parts: a rocket and a
launcher. The rocket is constructed from a tube made of hollow plastic or soft foam
with the first end located at the bottom of the rockets and open, and the second end
with a curved nose configuration at the top of the air rocket. The other features of
the air rocket including the Fins or wings, constructed from plastic or foam
(again, depending on model) that are attached near the bottom end of the air rocket
tube. The Fins provide the rocket with stability during initial launch and through
flight. The launcher consists of a hard plastic tube that is connected at the first end by
the air rocket prior to launch and the second end to a flexible tubing connected to the
air bladder. Importantly, the diameter of the launcher tube is just slightly smaller
than the diameter of the air rocket tube to ensure adequate air tight integrity prior to
launch but the air rocket is flexible enough to separate from the launcher when
initiated.
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17.
Ramirezs STOMP ROCKET TOYS employs relatively simple technology. Launch

is initiated through a three-stage sequence. First, the air pressure inside the launcher
tube is increased by a users rapid compression of the air bladder, usually by
squeezing or stomping on the air pump. This rapid change of pressure causes the air
within the bladder to transfer through the translucent tubing into the launcher. This
rapid increase in air pressure within the launcher is expelled from the bottom of the
rocket tube and the air rocket is propelled or lifted off.
18.
Over the years, D&L produced several versions of its STOMP ROCKET brand air
rocket toys, including the SUPER STOMP ROCKET, JUNIOR STOMP ROCKET
and ULTRA STOMP ROCKET (hereinafter referred to individually as sub-brands
or collectively as STOMP ROCKET TOYS). The materials used, the number of
rockets included with each product, and maximum altitude varies with each subbrand. STOMP ROCKET TOYS quickly transformed into a highly interactive
developmental toy product used by parents, educators, and STEM programs.
Throughout this transformation, the STOMP ROCKET TOY has emerged as the
dominant, and industry-leading air rocket toy system.
19.
Over the years, STOMP ROCKET TOYS have sold more than 3.5 million units and
have been honored with many prestigious awards, including those from iParenting
Media (Hot Toy and Excellent Product Awards) and Creative Child Magazine (Top
Toy of the Year, Seal of Excellence and Preferred Choice Awards) for its high-quality
and innovative design.
PLAINTIFFS INTELLECTUAL PROPERTY RIGHTS

20.
D&L repeats and re-alleges each and every allegation in paragraphs 1 to 17 as set
forth above.
21.
On February 2, 1999, D&L registered the word mark STOMP ROCKET with the
United States Patent and Trademark Office (USPTO), under U.S. Registration No.
2,221,554, for use in connection with toys, namely, flying winged tubes and
structural parts therefor on the Principal Register (the Registration). The
Registration was renewed on June 26, 2008. See EXHIBIT C. Under Section 7(b)
of the Federal Lanham Act, 15 U.S.C. 1057(b), the Registration constitutes prima
facie evidence of the validity of the Word Mark, of Mr. Ramirezs ownership of
same, and of Mr. Ramirezs exclusive right to use the Word Mark STOMP ROCKET
in commerce on or in connection with the goods specified in the Certificate of
Registration. In addition, on October 30, 2009, the Registration became incontestable
under 15 U.S.C. 1065. Subject to certain statutory limitations, the Registration now
constitutes conclusive evidence of the validity of the STOMP ROCKET mark, of Mr.
Ramirezs ownership of same, and of Mr. Ramirezs exclusive right to use the Word
Mark in commerce on or in connection with the goods within international class 028
as described in the Certificate of Registration.
22.
By virtue of D&Ls substantially exclusive, continuous, and long-standing use of the

Word Mark STOMP ROCKET and pursuant to an exclusive license from Mr.
Ramirez, the Word Mark has become a reliable identifier of the source of the
Plaintiffs products.
23.
All packaging used for STOMP ROCKET TOYS includes the terms STOMP
ROCKET in bright yellow lettering with red shadowing. A portion of the terms
STOMP ROCKET is superimposed over a black parallelogram having a purple
border on the left and bottom edges. The border is further ornamented with yellow
dots and red stripes, triangles, and a trapezoid. Constructive notice of Plaintiffs
registration and claim of ownership is provided by the symbol predominantly
displayed next to the term STOMP. This word mark and unique packaging design
creates a specific commercial impression to any prospective customer as to the source
of these iconic goods. See EXHIBIT D.
24.
All packaging associated with STOMP ROCKET TOYS feature a distinctive and
primarily nonfunctional combination of design elements that collectively create a
particular Trade Dress (the Trade Dress). The front panel of the Trade Dress
contains the following elements: (a) dimensions of approximately 9.5 in width and
11.5 in height; (b) the STOMP ROCKET mark, which incorporates all STOMP
ROCKET TOYS occupying the upper left portion of the panel; (c) an enlarged image
of Plaintiffs red and yellow plastic air rocket in flight, occupying the middle- and
upper-right portions of the panel; (d) the photographic images of two young boys,
one jumping on the air bladder of the STOMP ROCKET toy, the other kneeling next
to the rocket launcher, holding a rocket in each hand while pointing skyward toward
Plaintiffs red and yellow plastic rocket in mid-flight, occupying the middle-left and
lower-left portions of the panel; (e) a distinctive red, blue, yellow, and white graphic
presentation of certain descriptive data occupying the lower right portion of the panel;
and (f) background art that is suggestive of an outdoor environment, with bright green
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coloration along the bottom of the panel, fading to a bright yellow midsection, fading
to a blue sky with white clouds along the top of the box. See EXHIBIT E.
25.
The side and top panels of the Trade Dress contain the following additional elements:
(g) the same photographic image of a young boy jumping on the air bladder that
appears on the front panel; (h) the word Mark; and (i) the same enlarged image of
Plaintiffs red and yellow plastic rocket that appears on the front panel. See
EXHIBIT F.
26.
The back panel of the Trade Dress contains the following additional elements:; (j) an
image of the package contents in the lower right portion of the panel; (k) an enlarged
image of Plaintiffs red and yellow plastic air rocket, here occupying the middle left
portion of the panel; and (l) a pictorial representation of various ways to use
Plaintiffs toy, occupying the middle-right portion of the panel.
27.
The packaging for the STOMP ROCKET TOYS is unregisteed with the USPTO and
has remained constant since its original inception in 1992. D&Ls primary
significance of the STOMP ROCKET Trade Dress was to identify the source of
STOMP ROCKET TOYS and is protectable under 15 U.S.C. 1125(a).
28.
The creative designs and graphic elements on the packaging of STOMP ROCKET
TOYS are protected by copyrights with the United States Copyright Office, Reg. Nos.
VA 1-687-163, VA 1-934-278, and VA 0-928-758. These valid registrations
provides prima facie evidence of valid copyrights under 17 U.S.C. 410(c). See
Exhibit G.
DEFENDANTS INFRINGEMENT
29.
During the 2016 New York Toy Fair it was discovered that TROMP was displaying,
selling, and promoting his counterfeit product from a display booth within the Jacob
K. Javits Convention Center Upon an initial web search, it was further revelaed that
TROMP TOYS were being marketed and sold through various sourcing agents,
global toy fairs and popular ecommerce websites such as AMAZON PRIME and
SEARS. Further, TROMP TOYS may still be purchased through Mr. Genoveses
personal Squarespace page at < don-genovese.squarespace.com>. See Exhibit H.
30.
An examination of the USPTOs Trademark Electronic Search System (TESS)

revealed Defendants had registered the mark TROMP in stylized magneto lettering
on November 25, 2014 on the principal registration within international class 028 for
childrens multiple activity toys (Reg. No. 4,644,824) See EXHIBIT I.
31.
On information and belief, Defendants manufactured, distributed, and sold TROMP

TOYS through the same channels of interstate commerce as STOMP ROCKET
TOYS at substantially discounted prices.
32.
On February 25, 2016, D&Ls counsel sent a Notice of Infringment to Mr. Genovese
requesting to immediately cease and desist from continuing to market and sell his
counterfeit TROMP TOYS. Further included within the Notice of Infringement was a
fair and reasonable offer to enter into a Licening Agreement and demand for a onetime payment to mitigate past damages and avoid future litigation. See EXHIBIT J.
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33.
Defendants counsel sent a Response March 17, 2016, denying infringement and
asserting first use of the unique design as shown in Defendants granted design
patents (United States Design D679340 and United States Design D679339,
hereinafter referred as design patents). The design patents were issued on April 2,
2013 and are identical to the original ornamental design and appearance of the
STOMP ROCKET. Defendants counsel further proposed the following terms: (a)
Defendants will immediately cease using the brand name TROMP in connection
with its compressed air toy products; (b) agree not to use the name TROMP in
connection with the word ROCKET on any toy products; and (c) will abandon the
mark TROMP (Reg. No, 4,644,824) in exchange for a payment of $10,000 to
compensate any costs of re-branding by the Defendants. See EXHIBIT K.
34.
On information and belief, Defendant Don P. Genovese is liable in his personal

capacity for the afore-described violations of Plaintiffs copyright, and trademark
rights because he personally directed and controlled TROMP TOYS, and had a
financial interest in the unlawful course of conduct.
COUNT I
COPYRIGHT INFRINGEMENT
35.
Plaintiffs re-allege and incorporate herein the allegations in Paragraphs 1-26,

inclusive.
36.
As described above, Plaintiffs own all rights, title, and interest in and to the artistic,
graphic, and literary elements of STOMP ROCKET TOYS and product packaging.
37.
On information and belief, Mr. Genovese personally participated in the chain of

events by which Defendants TROMP infringed D&Ls copyrighted works.
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38.
Mr. Genovese infringement was both intentional and willful in that he knew or
should have known that his intentional conduct infringed Plaintiffs copyright or,
alternatively, acted in reckless disregard to Plaintiffs rights.
39.
Mr. Genovese, as President and owner of TROMP reaped profits from the sale of the
counterfeit TROMP TOYS which contained identical elements of STOMP ROCKET
TOYS and product packaging captured with the registered copyrights.
40.
By reason of the infringements committed by Mr. Genovese, the Plaintiffs have

sustained and will continue to sustain substantial injury, loss and damage to its
ownership of its copyrighted works.
41.
Plaintiffs are entitled to receive all appropriate injunctive relief, including but not
limited to the relief available under 17 U.S.C. 502-505.
42.
Plaintiffs D&L are further entitled to recover from Mr. Genovese the damages they
have sustained and will sustain, plus any gains, profits and advantages obtained by
the Defendants, as a result of the infringements alleged in this Complaint, including
but not limited to such damages and awards as are available under 17. U.S.C. 504505.
COUNT II
TRADEMARK INFRINGEMENT
43.

inclusive.
44.
Defendants distribution, marketing, promotion, offering for sale, and sale of the
TROMP TOYS bearing the TROMP mark is likely to cause confusion, mistake, or
deception as to the source, affilitation, sponsorship or authenticity of Defendants
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goods. Thus, D&L will continue to sustain substantial injury, loss and damage to its
ownership of its trademarked goods.
45.
Plaintiffs are entitled to receive all appropriate injunctive relief, including but not
limited to the relief available under 15 U.S.C. 1116.
46.
Plaintiffs are further entitled to recover from Mr. Genovese the damages they have
sustained and will sustain, plus any gains, profits and advantages obtained by the
Defendants , as a result of the infringements alleged in this Complaint, including but
not limited to such damages and awards as are available under 15 U.S.C. 1117(a).
COUNT III
FALSE DESIGNATION OF ORIGIN UNDER THE LANHAM ACT
47.
Plaintiffs re-alleges and incorporate herein the allegations in Paragraphs 1-26,

inclusive.
48.
By using Plaintiffs Word Mark, and Design Mark on its packaging and in advertising
for Defendants TROMP TOYS, Defendants have falsely designated the origin of
their goods within the meaning of Section 43(a) of the Lanham Act, 15 U.S.C.
1125(a), thereby causing confusion, mistake or deception among consumers as to the
source or origin of Defendants products and/or as to the source or origin of
Plaintiffs products.
49.
On information and belief, Defendants false designation of origin has caused

confusion, mistake, and/or deception among actual and prospective customers of
within the regular channels of commerce for compressed air toy rockets.
50.
As a direct result of this false designation of origin, Plaintiffs have sustained and are
likely to continue to sustain monetary damages and irreparable injury to their
business, reputation and goodwill.
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51.
Mr. Genovese is personally liable for these false designations of origin because he
personally directed, controlled, and participated in the offending activity by
marketing, advertising, and holding TROMP TOYS out to the public as STOMP
ROCKET.
52.
Plaintiffs have no adequate remedy at law.
53.
By reason of the foregoing, Defendant Mr. Genovese is personally liable to the

Plaintiffs for false designation of origin under the federal Lanham Act, and Plaintiffs
are entitled to Defendants profits, Plaintiffss damages, the costs of the action, plus
reasonable attorneys fees by reason of the willfulness of Defendants conduct, which
willfulness renders this an exceptional case within the meaning of Section 35(a) of
the Lanham Act, 15 U.S.C. 1117(a).
54.
Plaintiffs are entitled under Section 36 of the Lanham Act, 15 U.S.C. 1118 to a
court order providing that all product packaging, advertising, and promotional matter
bearing Plaintiffs STOMP ROCKET mark along with all means of making such
packaging, advertising, and promotional matter, be delivered up and destroyed.
COUNT IV
FALSE OR MISLEADING DESCRIPTION OF FACTS UNDER THE LANHAM ACT
55.
Plaintiff re-alleges and incorporate herein the allegations in Paragraphs 1-26,

inclusive.
56.
By using Plaintiffs STOMP ROCKET mark on all packaging, advertising, and

promotion of Defendants TROMP TOYS, Defendants have conveyed the false or
misleading message to consumers that Defendants TROMP TOYS originate with or
are sponsored by Plaintiffs; that Plaintiffs STOMP ROCKET TOYS originate with
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or are sponsored by Defendants; and/or that Plaintiffs and Defendants air rocket toys
are of the same nature and quality. Through this conduct, Defendants have engaged in
false or misleading representations and/or omissions of material fact within the
meaning of Section 43(a) of the Lanham Act, thereby causing confusion, mistake or
deception among consumers as to the source or origin of Defendants products and/or
as to the source or origin of Plaintiffs products.
57.
Defendants false or misleading representations of fact are material in that consumers

perceive Plaintiffs STOMP ROCKET mark as symbolic of the nature and quality of
all goods sold thereunder and therein. The products performance and safety for which
STOMP ROCKET TOYS are known constitute two facets of product quality that are
very material to the process by which wholesale and retail consumers investigate,
shop for, purchase, and use these iconic air rocket toys.
58.
On information and belief, Defendants false or misleading representations of fact

have caused confusion, mistake, and/or deception among actual and prospective
customers of Plaintiffs and Defendants goods in the wholesale, manufacturing, and
retail segments of the market for air rocket toys.
59.
As a direct result of Defendants false or misleading representations of fact, Plaintiffs

have sustained and are likely to continue to sustain monetary damages and irreparable
injury to its business, reputation, and goodwill.
60.
Defendant Mr. Genovese is personally liable for these false or misleading

representations of fact because he personally directed, controlled, and participated in
the unlawful activity.
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61.
By reason of the foregoing, Defendants are liable to the Plaintiffs for false or
misleading descriptions of fact under the Federal Lanham Act, and Plaintiffs are
entitled to Defendants profits, Plaintiffss damages, the costs of the action, plus
reasonable attorneys fees by reason of the willfulness of Defendants conduct, which
willfulness renders this an exceptional case within the meaning of Section 35(a) of
the Lanham Act, 15 U.S.C. 1117(a).
62.
Plaintiffs are entitled to treble damages and increased profits, plus attorneys fees, by
reason of the willfulness of Defendants conduct, which willfulness renders this an
exceptional case within the meaning of Section 35(a) of the Lanham Act, 15 U.S.C.
1117(a).
63.
court order providing that all product packaging, advertising, and promotional matter
bearing Plaintiffs Word Marks and Design Mark associated with STOMP ROCKET
TOYS along with all means of making such packaging, advertising, and promotional
matter, be delivered up and destroyed.
Count VII
TRADE DRESS INFRINGEMENT UNDER THE LANHAM ACT
64.

inclusive.
65.
As described above, Mr. Ramirez owns all rights, title and interest in and to the Trade
Dress. D&L owns an exclusive license to use the Trade Dress in commerce.
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66.
D&Ls use of the Trade Dress in commerce, pursuant to exclusive license from Mr.
Ramirez, has been substantially exclusive, continuous, and long-standing and
represents the extensive goodwill built up by Plaintiffs.
67.
Plaintiffs Trade Dress is primarily non-functional.
68.
Plaintiffs Trade Dress has acquired secondary meaning in that consumers have come
to recognize the well-known appearance and arrangement of the design elements of
Plaintiffs STOMP ROCKET TOYS packaging, and associate that appearance and
arrangement with a single source. Further, the Defendants willful and intentional
copying of the Trade Dress provides prima facie evidence of distinctiveness.
69.
On information and belief, Defendants have created a Trade Dress through its product
packaging which was created to intentionally confuse and intentionally deceive
consumers as to the source of the air rocket toys.
70.
By using Plaintiffs Trade Dress on packaging and in advertising for Defendants air
rocket toys, Defendants have falsely designated the origin of goods and falsely or
misleadingly represented the source, origin, nature, and quality of goods, thereby
violating Plaintiffs Trade Dress rights under Section 43(a) of the federal Lanham
Act. The Defendants continued sales of TROMP TOYS will continue to cause
confusion, mistake or deception among consumers as to the source or origin of
Defendants products, and/or as to the source or origin of Plaintiffs products.
71.
On information and belief, the Defendants Trade Dress created through his products
packaging has caused confusion, mistake, and/or deception among actual and
prospective customers as to the source of goods.
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72.
As a direct and proximate result of Defendants actions, the Plaintiffs have sustained
and are likely to continue to sustain monetary damages and irreparable injury to its
business, reputation and goodwill.
73.
74.
By reason of the foregoing, Defendants are liable to the Plaintiffs for Trade Dress
infringement under Sections 43(a)(1)(A) and (B) of the federal Lanham Act, 15
U.S.C. 1125(a)(1)(A) and (B), and Plaintiffs are entitled to Defendants profits,
Plaintiffs damages, the costs of the action, plus reasonable attorneys fees by reason
of the willfulness of Defendants conduct, which willfulness renders this an
1117(a).
75.
reason of the willfulness of Defendants conduct, which willfulness renders this an
1117(a).
76.
court order providing that all Defendants product packaging, advertising, and
promotional matter bearing Plaintiffs Trade Dress, along with all means of making
such packaging, advertising, and promotional matter, be delivered up and destroyed.
Count VIII
TRADEMARK DILUTION
77.
Plaintiffs re-allege and incorporate herein the allegations in Paragraph 1-26, inclusive.
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78.
Plaintiffs STOMP ROCKET mark is symbolic of the extensive goodwill and

consumer recognition built up by Plaintiffs through years of advertising, promotion
and sales. Plaintiffs have so used the STOMP ROCKET mark in connection with its
toys that the public has come to associate the mark exclusively with the Plaintiffs, and
as indicating that the goods offered under the mark originate with Plaintiffs.
79.
As a result of its prominent and continuous use, Plaintiffs distinctive Word Mark has
become famous across the nation within meaning of 15 U.S.C. 1125(c).
80.
Defendants use of Plaintiffs famous STOMP ROCKET mark is for a commercial

purpose.
81.
Defendants use of Plaintiffs famous STOMP ROCKET mark has caused, and is
likely to continue to cause dilution by blurring and/or by tarnishment of the
distinctive qualities of Plaintiffs STOMP ROCKET mark, and/or harm to the
reputation of Plaintiffs STOMP ROCKET mark.
82.
By reason of the foregoing, Defendants are liable to the Plaintiffs for trademark
dilution under Section 43(c) of the Lanham Act, 15 U.S.C. 1143(c), and Plaintiffs are
therefore entitled to preliminary and permanent injunctive relief under Section 34(a)
of the Lanham Act, 15 U.S.C. 1116(a); monetary damages, profits, and costs under
Section 35(a) of the Lanham Act, 15 U.S.C. 1117(a); and also to the remedies set
forth in 15 U.S.C. 1118.
83.
reason of the willfulness of Defendants infringement, which willfulness renders this
an exceptional case within the meaning of Section 35(a) of the Lanham Act, 15
U.S.C. 1117(a).
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84.
In view of the willfulness of Defendants infringement, Plaintiffs are entitled under

Section 36 of the Lanham Act, 15 U.S.C. 1118 to a court order providing that all
Defendants product packaging, advertising, and promotional matter bearing
Plaintiffs STOMP ROCKET mark, along with all means of making such packaging,
advertising, and promotional matter, be delivered up and destroyed.
Count IX
TRADEMARK INFRINGEMENT UNDER COMMON LAW
85.

inclusive.
86.
As described above, Plaintiffs own all rights, title and interest in and to the STOMP
ROCKET mark, and the STOMP ROCKET TOYS marks.
87.
As described above, the trademarks are distinctive, and Plaintiffs have built up
valuable goodwill in the trademarks.
88.
Defendants use of the trademarks infringes Plaintiffs rights therein and has and will
continue to cause confusion, mistake, or deception among consumers as to the source
and origin of Defendants counterfeit STOMP ROCKET brand air rocket toys in
violation of Fla. Stat. 501 et seq..
89.
Defendants conduct deceived or is likely to deceive, and caused or is likely to cause,

confusion or mistake among actual and prospective consumers of the Plaintiffs
products by passing off Defendants products as being manufactured, sponsored or
otherwise approved by or connected with the Plaintiffs.
90.
As a direct and proximate result of Defendants infringements of Plaintiffs common

law trademark rights under the State of Florida and other common law, Plaintiffs have
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sustained and are likely to continue to sustain monetary damages and irreparable
injury to its business, reputation and goodwill.
91.
Defendant Mr. Genovese is personally liable for the infringement of Plaintiffs

Trademarks because he personally directed, controlled, ratified and participated in the
infringing activity.
92.
93.
By reason of the foregoing acts, Defendants are liable to Plaintiffs for trademark
infringement and Plaintiffs are therefore entitled to preliminary and permanent
injunctive relief and monetary damages.
94.
Plaintiffs are entitled to exemplary and punitive damages by reason of Defendants

willful, reckless, deliberate and intentional conduct.
Count X TRADE SECRET
TRADE DRESS INFRINGEMENT UNDER COMMON LAW
95.

inclusive.
96.
Defendants actions constitute misappropriation of trade secrets under Florida

common law. .
97.
Upon information and belief, Defendants used Plaintiffs esigns, customer lists,
patterns, assembly procedures, manufacturing processes, supplier list, and business
procedures to help design, develop, and mark TROMP TOYS in violation of Fla. Stat.
688 et seq..
98.
As a direct and proximate result of Defendants infringements of Plaintiffs common

law trade secret rights under the State of Florida, Plaintiffs have sustained and are
21
likely to continue to sustain monetary damages and irreparable injury to its business,
reputation and goodwill.
99.
100.
By reason of the foregoing acts, Defendants are liable to Plaintiffs for Trade Dress
infringement and Plaintiffs are therefore entitled to preliminary and permanent
injunctive relief and monetary damages.
101.
Plaintiffs are entitled to exemplary and punitive damages by reason of Defendants

willful, reckless, deliberate and intentional conduct.
Count XI
DECEPTIVE AND UNFAIR TRADE PRACTICES UNDER COMMON LAW
102.

inclusive.
103.
As described above, Defendants have engaged in unfair trade practices by

representing to consumers that their products have a source, nature, and quality that
they do not have.
104.
Defendants have engaged in false and misleading representations and omissions of

material fact to consumers and have engaged in deceptive conduct.
105.
Defendants false and misleading representations and deceptive conduct are material
in that the same have caused and are likely to cause prospective consumers of the
Plaintiffs products to be deceived as to the identity of the person to whom rights
belong and as to the level of quality of the product.
22
106.
Defendants have disparaged the goods and services and business of Plaintiffs through
false and misleading representations of material facts.
107.
By reasons of belief, the Defendants provided knowingly false and misleading

representations of fact and conduct in violation of Floridas Deceptive and Unfair
Trade Practices Act , Fla. Stat. 501.201 et seq.
108.
As a direct and proximate result of said misleading and deceptive conduct, the
Plaintiffs, as well as consumers, have sustained and are likely to continue to sustain
damages.
109.
Defendant is personally liable for the afore-described deceptive unfair trade practices
because he personally directed, controlled, and participated in the unfair activity.
110.
111.
Pursuant to Floridas Deceptive and Unfair Trade Practices Act 501.207

501.2075, the Plaintiffs are entitled to enjoin Defendants unlawful conduct as well as
obtain compensatory damages, punitive damages, and attorneys fees.
Count XIII UNJUST ENRICHMENT
112.

inclusive.
113.
Plaintiffs have been denied financial compensation from the proceeds of the
Defendants counterfeit TROMP TOYS, which has benefited from the Plaintiffs
trademark rights. The circumstances are such that equity and good conscience
require the Defendants to make restitution in an amount to be proven at trial.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against each Defendant as follows:

23
A.
Preliminarily and permanently enjoining and restraining Defendants, their
officers, directors, shareholders, agents, employees, and attorneys and all those acting in concert
with them from:
1.
Reproducing, publicly distributing, publicly displaying, and preparing any
derivative work based on Plaintiffs Work, in any medium, including but not limited to print and
online;
2.
Producing, marketing, selling, distributing any product whose packaging
contains any portion of Plaintiffs Work;

3.
Using Plaintiffs Trademarks, Trade Dress, or any colorable imitation
thereof.
B.
Ordering that Defendants file with this Court and serve upon Plaintiffs within 20
days after the service of such injunction, an affidavit, sworn to under penalty of perjury, setting
forth in detail the manner and form in which Defendants have complied with such injunctions.
C.
Ordering an accounting of all revenues received by each Defendant as a result of
its unlawful conduct.

D.
Awarding Plaintiffs: 1) Defendants profits realized as a result of the copyright
and trademark infringements, false advertising, unfair competition, unjust enrichment and/or
each of the Defendants deceptive practices, or in the Courts discretion, such sum as the Court
finds to be just; 2) actual damages sustained by Plaintiffs, or such other amount as the Court may
find just; and 3) the costs of this action.
E.
Awarding Plaintiffs increased damages and profits, and reasonable attorneys
fees, pursuant to 15 U.S.C. 1117(a)-(c).

F.
Awarding Plaintiffs the relief set forth in 15 U.S.C. 1118.

24
G.
Awarding Plaintiffs prejudgment and post-judgment interest on any monetary
award in this action.

H.
Granting such other and further relief as to this Court deems just and proper.
JURY DEMAND
Plaintiffs hereby demand a trial by jury on all claims for which there is a right to jury trial.
Respectfully Submitted,
By: /s/ Andrew Rapacke/

Andrew S. Rapacke, Esq.
Attorney for Plaintiffs
THE RAPACKE LAW GROUP, P.A.
Florida Bar No. 0116247
618 E. South Street, Suite 500
Orlando, Florida 32801
Telephone: 407-801-9368
Facsimile: 407-992-6101
Email:andy@arapackelaw.com
Dated: May 27, 2016
25

JFJ Toys v. Genovese Dba Tromp Toys - Stomp Rocket Trademark Complaint PDF

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Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 2 of 25

The infringement and misappropriation of D&Ls intellectual property rights is both

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 3 of 25

The Defendant further misrepresents TROMP TOYS as STOMP ROCKET TOYS at

As set forth below, Defendants actions constitute willful copyright infringement in

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 4 of 25

Plaintiff JFJ Toys Inc. is a Delaware Corporation with a business address as in

Plaintiff Fred Ramirez is a citizen and resident of Camp Nelson, California.

On information and belief, Defendant Don P. Genovese is an individual whose

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 5 of 25

Venue of this action is proper pursuant to 28 U.S.C. 1400(a) and 1391(b).

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 6 of 25

Ramirezs STOMP ROCKET TOYS employs relatively simple technology. Launch

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 7 of 25

PLAINTIFFS INTELLECTUAL PROPERTY RIGHTS

By virtue of D&Ls substantially exclusive, continuous, and long-standing use of the

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 8 of 25

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 9 of 25

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 10 of 25

An examination of the USPTOs Trademark Electronic Search System (TESS)

On information and belief, Defendants manufactured, distributed, and sold TROMP

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 11 of 25

On information and belief, Defendant Don P. Genovese is liable in his personal

Plaintiffs re-allege and incorporate herein the allegations in Paragraphs 1-26,

On information and belief, Mr. Genovese personally participated in the chain of

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 12 of 25

By reason of the infringements committed by Mr. Genovese, the Plaintiffs have

Plaintiffs re-allege and incorporate herein the allegations in Paragraphs 1-26,

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 13 of 25

Plaintiffs re-alleges and incorporate herein the allegations in Paragraphs 1-26,

On information and belief, Defendants false designation of origin has caused

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 14 of 25

Plaintiffs have no adequate remedy at law.

By reason of the foregoing, Defendant Mr. Genovese is personally liable to the

Plaintiff re-alleges and incorporate herein the allegations in Paragraphs 1-26,

By using Plaintiffs STOMP ROCKET mark on all packaging, advertising, and

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 15 of 25

Defendants false or misleading representations of fact are material in that consumers

On information and belief, Defendants false or misleading representations of fact

As a direct result of Defendants false or misleading representations of fact, Plaintiffs

Defendant Mr. Genovese is personally liable for these false or misleading

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 16 of 25

Plaintiffs re-allege and incorporate herein the allegations in Paragraphs 1-26,

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 17 of 25

Plaintiffs Trade Dress is primarily non-functional.

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 18 of 25

Plaintiffs have no adequate remedy at law.

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 19 of 25

Plaintiffs STOMP ROCKET mark is symbolic of the extensive goodwill and

Defendants use of Plaintiffs famous STOMP ROCKET mark is for a commercial

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 20 of 25

In view of the willfulness of Defendants infringement, Plaintiffs are entitled under

Plaintiffs re-allege and incorporate herein the allegations in Paragraphs 1-26,

Defendants conduct deceived or is likely to deceive, and caused or is likely to cause,

As a direct and proximate result of Defendants infringements of Plaintiffs common

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 21 of 25

Defendant Mr. Genovese is personally liable for the infringement of Plaintiffs

Plaintiffs have no adequate remedy at law.

Plaintiffs are entitled to exemplary and punitive damages by reason of Defendants

Plaintiffs re-allege and incorporate herein the allegations in Paragraphs 1-26,