Professional Documents
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CNH AMERICA, LLC, a corporation, )
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Plaintiff, ) JUDGE
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v. ) COMPLAINT FOR TRADEMARK
) INFRINGEMENT, UNFAIR
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Defendant. )
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2. On information and belief, Defendant, Davis Equipment Sales & Service, Inc.
business in Salem, Indiana and is doing business in the State of Indiana and in this judicial
district.
3. This Court has jurisdiction by virtue of the fact that this is an action arising under
the Trademark Act of 1946, as amended, 15 U.S.C. §§ 1051-1127 (the Lanham Act),jurisdiction
being conferred in accordance with 15 U.S.C. § 1121 and 28 U.S.C. § 1338(a) and (b).
Jurisdiction for the claims asserted under Indiana state law is conferred in accordance with the
and belief, a substantial part of the events or omissions giving rise to the claim occurred in this
judicial district, or under 28 U.S.C. § 1391(c) in that, on information and belief, Defendant is
deemed to reside in this judicial district because it are subject to personal jurisdiction in this
judicial district.
FACTS
5. Since 1842, Plaintiff, CNH America, LLC, and its predecessors in interest
(collectively, "CNH") have manufactured, marketed, sold, and serviced tractors and other
agricultural equipment throughout the United States. CNH is one of the world's leading
6. CNH has manufactured and sold agricultural equipment and related products for
more than a century throughout the United States under its famous NEW HOLLAND mark and
its New Holland and Leaflogo (collectively, the "NEW HOLLAND Marks"). By virtue of
CNH's long use, advertising, and promotion, its NEW HOLLAND Marks have become and still
7. For many years, CNH has operated and/or licensed others to operate retail outlets
that sell agricultural equipment and parts for such equipment. Many of these outlets also provide
repair and maintenance services and parts for repair and maintenance. These outlets prominently
HOLLAND Marks, the goodwill and fame of the NEW HOLLAND Marks have come to signify
CNH, the agricultural equipment products CNH manufactures and sells, and the repair and
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Case 4:10-cv-00141-RLY-WGH Document 1 Filed 11/09/10 Page 3 of 10
maintenance services CNH and its authorized dealers offer for such products. Thus, the NEW
HOLLAND Marks possess a strong secondary meaning and represent an extremely valuable
9. Among others, CNH owns several federal trademark registrations of its NEW
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forage boxes, feed grinder-mixers, manure spreaders,
mowers, disc mowers, mower-conditioners, disc
mower-conditioners, planters, air seeders, side
~WHOLLAr\D delivery rakes and combination coupling hitches
therefor, rotary rakes and tedders, round bale movers
and handlers, sprayers, tillage implements namely
plows and harrows, tub grinders, windrowers,
windrow inverters, utility front end loaders, front-end
loaders, backhoes, self propelled agricultural
combines, self propelled agricultural harvesters and
self propelled agricultural windrowers, engines for
agricultural machines; Agricultural tractors, bale
loading and stacking wagons for agricultural use;
engines for tractors; industrial tractors, skid steer
loaders in the nature of fork lifts; Wearing apparel
and clothing, namely, hats, shirts, coats and
sweatshirts
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Case 4:10-cv-00141-RLY-WGH Document 1 Filed 11/09/10 Page 4 of 10
These registrations are valid and subsisting. With the exception of Registration No. 890,857,
exclusive right to use the NEW HOLLAND Marks for the goods specified in the registrations,
pursuant to 15 U.S.C. §§ 1065 and 1115(b). Registration No. 890,857 listed above constitutes
prima facie evidence of the validity of the NEW HOLLAND Mark depicted therein, as well as
CNH's ownership of and exclusive right to use this marks for the listed goods. 15 U.S.C.
§ 1057(b). Printouts of the United States Patent and Trademark Office's electronics records of
10. CNH and Davis Equipment executed and were parties to a dealer agreement,
under which Davis Equipment was an authorized dealer for marketing, selling, and servicing
11. On October 30, 2009, CNH terminated that relationship and the dealer agreement.
12. Upon termination, Davis Equipment lost all authority to operate under the NEW
HOLLAND Marks. The dealer agreement further required Davis Equipment to remove all signs
13. Despite Davis Equipment's ongoing obligations under the dealer agreement and
CNH's repeated demands that Davis Equipment remove all signs and advertising displays
bearing the NEW HOLLAND Marks from its premises, Davis Equipment has not complied with
its contractual and legal obligations and refuses to remove such signs and advertising displays.
NEW HOLLAND-branded agricultural equipment and related repair and maintenance services.
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Case 4:10-cv-00141-RLY-WGH Document 1 Filed 11/09/10 Page 5 of 10
15. Specifically, Davis Equipment displays the NEW HOLLAND Marks on its
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These images demonstrate Davis Equipment's wrongful use of the NEW HOLLAND Marks to
16. Davis Equipment's use of the NEW HOLLAND Marks on its building and signs
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Case 4:10-cv-00141-RLY-WGH Document 1 Filed 11/09/10 Page 6 of 10
17. CNH re-alleges paragraphs 1 through 16, as if fully set forth herein.
18. Davis Equipment's acts have caused or are likely to cause confusion, mistake, or
deception as to the source or origin, sponsorship, or approval of the agricultural equipment and
related repair and maintenance services Davis Equipment offers in that consumers and others in
this judicial district and elsewhere in the United States are likely to believe CNH distributes or
sells these goods and services, or authorizes and controls their sale, or that Davis Equipment is
HOLLAND dealer.
19. On information and belief, Davis Equipment markets and sells its goods and
services under the NEW HOLLAND Marks for the purpose of trading upon CNH's goodwill in
the NEW HOLLAND Marks and CNH's business reputation, with the intention of creating
consumer confusion over the source and origin of the goods and services Davis Equipment sells
20. On information and belief, Davis Equipment's acts have injured CNH's image and
reputation with consumers in this judicial district and elsewhere in the United States by creating
confusion about, and dissatisfaction with, CNH's legitimate authorized dealers of agricultural
21. Davis Equipment's marketing and sale of the goods and services it offers under
the NEW HOLLAND Marks constitute trademark infringement of CNH's registered NEW
22. Davis Equipment's acts greatly and irreparably damage CNH and will continue to
so damage CNH unless restrained by this Court; wherefore, CNH is without an adequate remedy
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Case 4:10-cv-00141-RLY-WGH Document 1 Filed 11/09/10 Page 7 of 10
at law. Accordingly, CNH is entitled to, among other things, an order temporarily and
permanently enjoining and restraining Davis Equipment from marketing and selling goods and
24. Davis Equipment's acts constitute unfair competition with CNH in violation of
25. Davis Equipment's acts greatly and irreparably damage CNH and will continue to
so damage CNH unless restrained by this Court; wherefore, CNH is without an adequate remedy
at law. Accordingly, CNH is entitled to, among other things, an order temporarily and
permanently enjoining and restraining Davis Equipment from marketing and selling goods and
27. Davis Equipment's acts constitute unfair competition with CNH in violation of
28. Davis Equipment's acts greatly and irreparably damage CNH and will continue to
so damage CNH unless restrained by this Court; wherefore, CNH is without an adequate remedy
at law. Accordingly, CNH is entitled to, among other things, an order temporarily and
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Case 4:10-cv-00141-RLY-WGH Document 1 Filed 11/09/10 Page 8 of 10
permanently enjoining and restraining Davis Equipment from marketing and selling goods and
31. Davis Equipment's use of the NEW HOLLAND Marks began after the NEW
32. Davis Equipment's use of the NEW HOLLAND Marks causes dilution of the
distinctive quality of the NEW HOLLAND Marks in violation ofInd. Code § 24-2-1-13.5.
33. On information and belief, Davis Equipment willfully intended to trade on CNH's
34. Davis Equipment's acts greatly and irreparably damage CNH and will continue to
so damage CNH unless restrained by this Court; wherefore, CNH is without an adequate remedy
at law. Accordingly, CNH is entitled to, among other things, an order temporarily and
permanently enjoining and restraining Davis Equipment from marketing and selling goods and
its officers, agents, employees, representatives, and all others acting in concert or participation
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Case 4:10-cv-00141-RLY-WGH Document 1 Filed 11/09/10 Page 9 of 10
(ii) doing any other act or thing likely to induce the belief that Davis
(i) take down and remove from view any and all signs or displays
bearing the NEW HOLLAND Marks from its buildings, signs, and any
(ii) account for and pay over to CNH all profits derived from its acts of
U.S.C. § 1117(a);
(iv) pay to CNH the costs of this action, together with reasonable
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Case 4:10-cv-00141-RLY-WGH Document 1 Filed 11/09/10 Page 10 of 10
(v) deliver up for destruction all labels, signs, prints, boxes, packages,
C. Awarding CNH such further relief as this Court deems just and equitable.
By: ~
Cat erine A. Nestri~-P A '
20 NW Fourth Street, Seventh Floor
Post Office Box 657
Evansville, Indiana 47704-0657
Phone: 812/425-1591
Facsimile: 812/421-4936
cnestrick0lbamberger.com
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