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STEPHEN CHRISTIANSEN (SBN 6512) schristiansen@vancott.com VAN COTT, BAGLEY, CORNWALL & MCCARTHY 36 South State Street, Suite 1900 Post Office Box 45340 Salt Lake City, Utah 84111-0340 Telephone: (801) 532-3333 Facsimile: (801) 534-0058 CHRISTOPHER VAN GUNDY (CA SBN 152359) (pro hac vice application pending) cvangundy@roll.com DANIELLE M. CRIONA (CA SBN 204074) (pro hac vice application pending) dcriona@roll.com MICHAEL M. VASSEGHI (CA SBN 210737) (pro hac vice application pending) mvasseghi@roll.com SAMARA WEINER (CA SBN 225318) (pro hac vice application pending) sweiner@roll.com ROLL LAW GROUP P.C. 11444 West Olympic Boulevard, 10th Floor Los Angeles, California 90064-1557 Telephone: 310-966-8400 Facsimile: 310-966-8810 Attorneys for Plaintiff POM WONDERFUL LLC

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION POMWONDERFUL LLC, a Delaware limited liability company, Plaintiff, v. BACKSIDE BEVERAGES, LLC, a Texas limited liability company dba POMPIS, Defendant. Civil No. 2:11-cv-00760-BCW Magistrate Judge Brooke C. Wells JURY DEMANDED

COMPLAINT

Plaintiff POMWonderful LLC (Plaintiff or POM), for its Complaint, alleges as follows:

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NATURE OF ACTION 1. This action is based on POMs rights in its federally registered trademarks. Based

on POMs superior rights to its marks, POM seeks to enjoin Defendant Backside Beverages, LLC dba Pompis (Defendant or Pompis) from using Pompis as part of its trademark on the grounds that such use constitutes, among other things, trademark infringement. POM also seeks recovery of its damages and attorneys fees, and Defendants profits. THE PARTIES 2. POM is a Delaware limited liability company with its principal place of business

located at 11444 West Olympic Boulevard in Los Angeles, California 90064. POM produces, markets, sells and distributes pomegranate and pomegranate extract products worldwide in connection with its highly distinctive POM brand including, but not limited to, fresh fruit, juices, tea and coffee beverages, nutritional supplements and snack bars. 3. POM is informed and believes that Defendant Pompis is a Texas corporation,

doing business in California and with its principal place of business located at 100 N. Central Expressway, Suite 9, Dallas, Texas, 75201-4312. POM is informed and believes that Pompis is involved in the manufacture and sale of energy drink beverages. JURISDICTION AND VENUE 4. This action arises, in part, under the Lanham Act, as amended, 15 U.S.C. 1114

and 1125. This Court has subject matter jurisdiction over this action pursuant to 15 U.S.C. 1121 (trademark infringement claims under the Lanham Act); 28 U.S.C. 1331 (federal question), 28 U.S.C. 1338 (original jurisdiction of trademark claims, or unfair competition claims related to same) and 28 U.S.C. 1367 (supplemental jurisdiction). 5. POM is informed and believes, and based thereon alleges, that venue is proper in

this District pursuant to 28 U.S.C. 1391(b) and 1391(c) because a substantial part of the events giving rise to the claims occurred in this District. Additionally, POM is informed and believes, and based thereon alleges, that the Court has personal jurisdiction over Defendant

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because Defendant conducts business activities in this District, and has focused a substantial portion of its unlawful conduct in this District. FACTUAL ALLEGATIONS I. The POM Brand 6. POM began producing, selling and marketing its pomegranate products in 2001

and essentially created the existing market in the United States for products made from or containing pomegranates. 7. Since 2001, POM has extensively marketed its products in interstate commerce in

connection with a family of highly distinctive trademarks which is comprised of, or includes, POM (collectively, the POM brand). 8. The POM brand has been used in connection with fresh fruit since 2001, with

beverages since 2002, and with concentrated juice extract and related products since 2009. Attached as Exhibit A are examples of the products sold by POM in connection with its POM brand. 9. POM has invested over 300 million dollars in the creation, development,

production, marketing and sales of the POM brand and its products. The POM brand of juice has become the best-selling brand of pomegranate juice in the United States, having sold over 150 million bottles since 2002. 10. The POM brand is a unique food and beverage brand whose name is associated

with health and with caring about the health of its consumers. 11. A significant element of POMs marketing campaign has been POMs own focus

on the health benefits of its pomegranate products and the companys substantial investment in scientific research that is focused on the health benefits of its products. 12. POM has invested millions of dollars in scientific research to study the health

benefits of pomegranates and advertises this investment to consumers. Much of the research underwritten by POM has been published in well-known, peer-reviewed journals.

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13.

Through the marketing and advertising of the health benefits of its products, the

advertising of its investment in its research program and the publication of POM sponsored research, POM has effectively conveyed the message to the public and its consumers that POM is a company and brand that is focused on, and cares about, the health of its consumers. II. The POM Brand Intellectual Property 14. POM owns numerous trademark registrations and pending applications in the

United States and around the world for the trademarks it uses in connection with the marketing, distribution and sale of its POM brand products in interstate commerce. The POM brand trademarks are used in connection with various goods including, but not limited to, fresh pomegranate fruit and pomegranate juice as well as products which contain fruit juice or fruit juice extracts such as tea beverages, dietary and nutritional supplements, and snack bars. 15. POM uses unique artwork on its products and with many of its trademarks.

POMs artwork includes a design in place of the o in pom and the design is in color which is unique to POM and makes POMs products recognizable to consumers (the POM Design). 16. POM has numerous trademarks registered with the United States Patent and

Trademark Office, many of which include the distinctive and well known POM Design. The POM registered trademarks include: POM (Reg. Nos. 2637053); POM & Design (Reg. No. 3047447); POM WONDERFUL (Reg. Nos. 2640835 and 3687491); POM WONDERFUL & Design (Reg. Nos. 2864641, 2780314 and 3687492); POM TEA (Reg. No. 3411595); LIGHT POM TEA (Reg. No. 3391707); LIGHT POM TEA & Design (Reg. No. 3411596); POM IN A PILL (Reg. No. 3337435); POM IN A PILL & Design (Reg. No. 3332875); POMEBERRY (Reg. No. 3382338); POM PASSION (Reg. No. 2944482); POM POWER (Reg. No. 2944481); POMx (Reg. Nos. 3562516 and 3674405); POMx & Design (Reg. No. 3562517 and 3791124); POMx SHOTS (Reg. No. 3667882); POMX SHOTS (Reg. No. 3667882); POWERED BY POMx (Reg. No. 3208934); and POMEGRANATE & Design (Reg. No. 3436526) (collectively, the POM Marks). 4

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17.

POMs registrations are valid and subsisting, and POM owns all right, title and Registration Nos. 2637053, 2640835, 2780314, 2864641 and

interest to the POM Marks.

3047447 are incontestable pursuant to 15 U.S.C. Section 1065. Attached hereto as Exhibit B are printouts of the registration certificates for the POM Marks. 18. Defendant had constructive notice of POMs rights in its federally registered

trademarks under 15 U.S.C. Section 1072, which states: Registration of a mark on the principal register provided by this Act or under the Act of March 3, 1981, or the Act of February 20, 1905, shall be constructive notice of the registrants claim of ownership thereof. POMs registered, pending, and common law trademarks constitute a family of marks. 19. Defendant also had actual notice of POMs rights no later than the date that it

received notice from POM advising it of POMs rights. 20. POM, together with its affiliates, has devoted a great deal of time, money and

resources to develop and extensively market its products in connection with its inherently distinctive POM brand to establish and maintain substantial goodwill which has come to be associated with the POM Marks. The POM Design, in particular, is an extremely valuable and highly protected component of its business. 21. The POM Marks are used uniformly and consistently in every product,

advertisement, and promotion in connection with POM brand products. POM, its distributors, and its distributor customers, both nationally and internationally, have continuously and exclusively used the POM Marks to distinguish themselves as the source of goods and services in connection therewith. 22. The POM Marks were custom designed to be distinctive, innovative and

recognizable to consumers so that the POM Marks would act as a source-identifier. Because of this, the POM Marks are inherently distinctive. In the alternative, because of POMs exclusive and extensive use, the POM Marks have acquired secondary meaning and distinctiveness, becoming extremely well known to the consuming public as identifying and distinguishing POM exclusively and uniquely as the source of products to which the POM brand is applied. 5

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23.

POMs substantial investment has paid off, as the POM Marks are widely

recognized as a source-identifier for POM brand products. By virtue of the popularity of goods sold in connection with the POM brand, POMs advertising and promotion of the POM brand, and POMs diligence in maintaining high standards of quality, POM has built and owns extremely valuable goodwill which is symbolized by, and associated with, its POM brand. Consequently, the highly distinctive POM brand has become famous. III. Extensive Marketing and Promotion of the POM Brand 24. POM has pursued direct marketing efforts to grocery, gourmet food, health food,

and other specialty stores, restaurants, health clubs, and health professionals throughout the world. 25. POMs philosophy is to support worthwhile local community efforts and

simultaneously share advice about healthful foods and beverages such as pomegranates and pomegranate juice. POM does so as part of an overall goal to promote and contribute to the health of consumers, including the sale of its own products. 26. POM also sponsors many high profile charity and health related events such as

the LA Marathon; Nike Womens Marathon; DC Triathlon; the NYC Triathlon; Cart for a Cause (benefiting Meals on Wheels); Best Buddies Challenge (benefiting Best Buddies); GLAAD Media Awards (benefiting Gay and Lesbian Alliance Against Defamation); and the New York City Wine and Food Festival (benefiting Share Our Strength). photographs which illustrate some of POMs charitable efforts. 27. POM has invested substantially in the POM brand, spending millions of dollars Attached as Exhibit C are

worldwide in the marketing, advertising, sales and promotion of the POM brand products. Attached as Exhibit D are examples of POMs advertising in the United States. 28. Most recently, in the fall of 2010, POM began its first television advertisement

campaign for the POM brand. POMs television commercials have aired in the United States, Canada, France, the United Kingdom and the Netherlands thus far. POM spent over $13 million on advertising and marketing in 2010, including its television advertisement campaign. Of that 6

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$13 million, nearly $8 million of that investment was spent on marketing and advertising in the United States alone. 29. In the United States, POMs television commercials were featured on such

popular networks as ABC, NBC, CBS, CNN, MSNBC, E!, Bravo, A&E, Discovery Channel, Comedy Central, Food Network, FX, National Geographic, Style, and many others. 30. POMs television commercials aired during such highly popular shows as CSI

Miami, Criminal Minds, Greys Anatomy, Top Chef, Real Housewives, Survivor, the Amazing Race, Larry King, Anderson Cooper 360, The Daily Show, The Stephen Colbert Report, Myth Busters, Chelsea Lately, E! News, Barefoot Contessa, Modern Marvels, MS Morning Joe, Biggest Loser, 30 Rock, and many others. 31. POMs television commercials prominently feature the POM Marks and, in the

United States alone, have resulted in over 600,000,000 consumer impressions thus far. 32. POM believes that its success is due to the quality, purity and taste of its products

and to the highly distinctive, innovative and recognizable POM Marks. The POM Marks have become famous and are now recognized as an indicator of POMs high-quality products and as a source-identifier of those products. DEFENDANTS INFRINGING ACTIVITIES 33. Notwithstanding POMs prior and superior rights in the POM Marks, and with

constructive and actual notice of POMs rights, Defendant is intentionally and willfully advertising, distributing, and selling its Pompis energy drink beverages that infringe and dilute the POM Marks. 34. Defendant has sold and continues to sell Pompis energy drinks in interstate

commerce. Attached as Exhibit E is a printout of a photograph of the Pompis beverage products. 35. Defendant infringes and dilutes the POM Marks by causing a likelihood of

confusion with the POM Marks and by causing a likelihood of dilution by blurring and tarnishing the POM Marks.

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36.

Defendant tarnishes the POM Marks because pompis is a slang Spanish term

for backside, that is, the backside of a person. In English, pompis is equally derogatory, combining the term POM and the term pis which phonetically sounds like piss. 37. By copying and using the POM Marks in such a derogatory manner, Defendant is

intentionally trading on the substantial goodwill created by POM while at the same time tarnishing the POM brand. Moreover, Defendants use of POM, in combination with a design in lieu of the letter o in pom, as POM does, creates a likelihood of confusion, mistake, and deception as to Defendants affiliation, connection, and/or association with POM among consumers and the trade. 38. These unauthorized uses by Defendant dilute the POM Marks by blurring the

distinction between POM and Defendant and tarnishing the POM brand by connecting the health-focused POM brand to a brand that conveys the opposite message. To the contrary, studies have shown that energy drinks are not healthful because of their high sugar and caffeine content. 39. Defendants unauthorized actions and blatant use of the POM Marks constitutes

trademark infringement, false designation of origin, trademark dilution, and unfair competition under Utahs Unfair Competition Act. IV. Defendants Actions Are Intentional And Willful 40. POM is informed and believes, and based thereon alleges, that Defendant

intentionally designed its Pompis energy drink product to copy the inherently distinctive POM Marks, used and made famous by POM. 41. POM is also informed and believes, and based thereon alleges, that Defendant

used the inherently distinctive POM Marks in commerce to intentionally cause a likelihood of confusion between Defendants infringing product and POMs product, or to cause mistake, or to deceive the relevant public that Defendants goods or services are authorized, sponsored or approved by or are affiliated with POM.

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42.

POM is further informed and believes, and based thereon alleges, that by

intentionally misappropriating the POM Marks, Defendant is causing customer confusion in the marketplace. 43. POM is informed and believes, and based thereon alleges, that Defendant has

willfully and knowingly infringed the inherently distinctive POM with knowledge of POMs rights and in an intentional attempt to target consumers who are familiar with the POM brand by creating the impression of an association between Defendant and POM or an endorsement by POM of Defendants goods. 44. POM is informed and believes, and based thereon alleges, that Defendant has

willfully and knowingly diluted the POM Marks by, among other things, blurring the distinction between POM and Defendant and tarnishing the POM brand. 45. The natural, probable and foreseeable result of the intentional, willful and

wrongful conduct of Defendant has been to deprive POM of business and goodwill, and to injure POMs goodwill, reputation and relationships with existing and prospective customers by infringing the POM Marks, and diluting the POM Marks by causing customers to associate the POM brand with an energy drink beverage product rather than POMs products. 46. POM is further informed and believes, and based thereon alleges, that it has lost

or will lose revenues from the sale of the inherently distinctive POM products, and has sustained and will sustain damages as a result of Defendants wrongful conduct in selling, marketing and distributing Pompis energy drink beverage product. 47. POM is further informed and believes, and based thereon alleges, that Defendant

has been unjustly enriched by its sale and marketing of the infringing product. 48. Defendants conduct is the result of willful and wanton disregard of POMs

established and superior rights. Defendant adopted, used, and continues to use, the POM Marks without authorization and with full knowledge of POMs superior rights and despite having been put on notice. POM has suffered, and will continue to suffer, irreparable injury as a result of

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Defendants unlawful actions and has no adequate remedy at law. POM is therefore entitled to injunctive relief. FIRST CLAIM FOR RELIEF (Trademark Infringement Pursuant to 15 U.S.C. 1114) 49. forth herein. 50. Defendants Pompis product infringes and dilutes the POM Marks because like POM incorporates by reference Paragraphs 1 through 48 above as though fully set

the POM Marks, this product uses POM, and a design in place of the o in pom, which is likely to cause confusion, mistake, and deception with respect to the POM Marks. 51. Defendants imitation, copying, and unauthorized use in commerce of POMs

federally registered trademarks is likely to cause confusion, mistake, or to deceive the consuming public and trade by creating the erroneous impression that Defendants products have been manufactured, approved, sponsored, endorsed, or guaranteed by, or are in some way affiliated with POM. 52. The imitation, copying, and unauthorized use of the POM Marks cause irreparable

injury to POM, including injury to its business reputation and the goodwill associated with the POM Marks. 53. By reason of the foregoing, Defendant has infringed POMs trademarks and has

violated, and is continuing to violate, 15 U.S.C. Section 1114. 54. POM has no adequate remedy at law for these injuries. Moreover, unless

Defendant is restrained by this Court from continuing this imitation, copying and unauthorized use of the POM Marks, these injuries will continue to occur. POM is entitled to an injunction restraining Defendant, its officers, agents, distributors and employees, and all persons acting in concert with it, from engaging in such further acts in violation of 15 U.S.C. Section 1116. 55. By reason of Defendants willful acts of trademark infringement, POM is entitled

to damages it has sustained and will sustain, and to have those damages trebled pursuant to 15 U.S.C. Section 1117. 10

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56.

This is an exceptional case making POM eligible for an award of attorneys fees

under 15 U.S.C. Section 1117. 57. POM is further entitled to recover from Defendant any gains, profits and

advantages unfairly obtained by Defendant as a result of its acts of infringement alleged herein. At present, the amount of any gains, profits and advantages cannot be fully ascertained by POM. POM is unable to ascertain the full extent of the monetary damages suffered by reason of Defendants acts at this time. SECOND CLAIM FOR RELIEF (Trademark Infringement and False Designation of Origin Pursuant to 15 U.S.C. 1125(a)) 58. forth herein. 59. Defendants Pompis product infringes and dilutes the POM Marks and Defendant POM incorporates by reference Paragraphs 1 through 57 above as though fully set

is falsely designating the origin of its brand because, like the POM Marks, this product uses POM and a design in place of the o in pom, which is likely to cause confusion, mistake, and deception with respect to the POM Marks. 60. Defendants use of the infringing trademarks has confused and is likely to

continue to cause confusion or to cause mistake, or to deceive the consuming public into believing that Defendants goods or services are authorized, sponsored or approved by or are affiliated with POM. 61. These acts constitute trademark infringement of the POM Marks and false

designation of origin in violation of 15 U.S.C. Section 1125(a), entitling POM to relief. 62. By reason of Defendants acts, POM is, and will continue to be, irreparably

harmed if Defendants conduct is not enjoined. POMs remedy at law is not adequate to compensate it for the injuries inflicted, and POM is therefore entitled to injunctive relief pursuant to 15 U.S.C. Section 1116.

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63.

The above-described acts of Defendant have irreparably harmed and, if not

enjoined, will continue to irreparably harm the general public, which has an interest in being free from confusion, mistake and deception. 64. Defendant has unfairly profited from the actions alleged and POM is therefore

entitled to recover from Defendant the damages sustained as a result of Defendants acts in violation of 15 U.S.C. Section 1125(a). At present, POM is unable to ascertain the full extent of the monetary damages suffered by reason of Defendants acts. 65. Further, because of the willful nature of Defendants acts, POM is entitled to

damages and to have those damages trebled pursuant to 15 U.S.C. Section 1117. 66. This is an exceptional case making POM eligible for an award of attorneys fees

pursuant to 15 U.S.C. Section 1117. THIRD CLAIM FOR RELIEF (Federal Trademark Dilution Pursuant to 15 U.S.C. 1125(c)) 67. 68. 1125(c). 69. Defendants use of POMs inherently distinctive and famous POM Marks in POM incorporates Paragraphs 1 through 66 above as though set forth fully herein. The POM Marks are inherently distinctive and famous under 15 U.S.C. Section

commerce began long after the POM Marks became famous. 70. Defendants Pompis product is likely to dilute and/or cause dilution of the famous

POM Marks because, like POMs products, Defendant use POM and a design in place of the o in pom, which is likely to cause dilution of the POM Marks by blurring the distinction between POM and Defendant and tarnishing the POM Marks. 71. Defendants conduct is the result of willful and wanton disregard of POMs

established and superior rights. Defendant adopted, used and continue to use the POM Marks without authorization and with full knowledge of POMs superior rights, and despite having been put on notice. POM has suffered, and will continue to suffer, irreparable injury as a result of Defendants unlawful actions and has no adequate remedy at law. 12

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72.

By reason of Defendants acts, POM is, and will continue to be, irreparably

harmed if Defendant is not enjoined. POMs remedy at law is not adequate to compensate it for the injuries inflicted, and POM is therefore entitled to entry of injunctive relief pursuant to 15 U.S.C. Sections 1125(c). 73. Defendant has unfairly profited from its actions alleged herein, and POM is

therefore entitled to recover from Defendant the damages sustained as a result of its acts in violation of 15 U.S.C. Section 1125(c). At present, POM is unable to ascertain the full extent of the monetary damages suffered by reason of Defendants acts. 74. Further, because of the willful nature of Defendants acts, POM is entitled to

damages and to have those damages trebled pursuant to 15 U.S.C. Sections 1125(c) and 1117. 75. This is an exceptional case making POM eligible for an award of attorneys fees

pursuant to 15 U.S.C. Sections 1125(c) and 1117. FOURTH CLAIM FOR RELIEF (Violation of Utahs Unfair Competition Act) 76. forth herein. 77. Defendants acts as described above constitute unfair competition in violation of POM incorporates by reference Paragraphs 1 through 75 above as though fully set

the Utah Unfair Competition Act. 78. Defendants acts constitute intentional business acts and practices that are

unlawful, unfair, or fraudulent, and have led and will lead to a material diminution in value of POMs intellectual property. 79. 80. 81. Defendants actions constitute infringement of POMs trademark. POM has suffered substantial damages as a result of Defendants actions. Defendants acts are willful and malicious or intentionally fraudulent or manifest

a knowing and reckless indifference toward and disregard of the Plaintiffs rights. 82. Pursuant to Utah Code Ann. 13-5a-103, POM is entitled to actual damages

caused by Defendants actions, as well as costs, reasonable attorney fees, and punitive damages. 13

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DEMAND FOR JURY TRIAL Plaintiff POMWONDERFUL LLC hereby demands a jury trial in connection with this action. PRAYER FOR RELIEF WHEREFORE, POM prays for judgment against Defendant as follows: 1. That the Court enter judgment against Defendant that: a. Defendant infringed the rights of POM in their federally registered

trademarks in violation of 15 U.S.C. Section 1114; b. Defendant infringed the rights of POM in the POM Marks in violation of

15 U.S.C. Section 1125; c. Section 1125; d. Competition Act; and 2. That the Court enter judgment against Defendant that the above acts, 1(a)-(d), Defendant engaged in unfair competition in violation of Utahs Unfair Defendant diluted the trademarks of POM in violation of 15 U.S.C.

were willful and intentional, making this an exceptional case. 3. That the Court issue a preliminary and permanent injunction enjoining and

restraining Defendant and its agents, servants, employees, successors, assigns and all other persons acting in concert or in conspiracy with or affiliated with Defendant from: Engaging in any infringing activity including advertising, promoting, marketing, franchising, distributing, selling, and offering for sale any goods or services in connection with the infringing product identified herein or any product or mark similar to the POM Marks in any media, whether in person, in print or by electronic means including but not limited to newspapers, magazines, bus shelters, billboards as well as via the Internet, including but not limited to, company websites, promotional websites, social media websites, YouTube or other video-related websites, energy drink reviewing websites, blogs, email, SMS and the like.

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4.

That the Court issue an Order at the conclusion of the present matter that all

infringing products be recalled, seized, impounded and destroyed. 5. That POM be awarded damages for Defendants trademark infringement, for

Defendants trademark dilution, and for unfair competition. 6. That POM be awarded its costs, attorneys fees and lost profits and restitution

resulting from Defendants infringement of POMs rights and by means of Defendants unfair competition with POM. 7. That Defendant be ordered to account for and disgorge to POM all amounts by

which Defendant has been unjustly enriched by reason of the unlawful acts complained of. 8. That damages resulting from Defendants infringement under the Lanham Act be

trebled due to Defendants willfulness in accordance with the provisions of 15 U.S.C. Section 1117. 9. That POM be awarded exemplary or punitive damages in an amount appropriate

to punish Defendant and to make an example of the Defendant to the community. 10. That, at POMs election, POM be awarded an amount sufficient to reimburse

POM for the costs of corrective advertising. 11. 12. For pre-judgment interest on all infringement and other appropriate damages. That the Court award POM its reasonable attorneys fees pursuant to 15 U.S.C.

1117, 17 U.S.C. Section 505, and any other applicable provision of law. 13. 14. That the Court award POM its costs of suit incurred herein. For such other or further relief as the Court may deem just and proper.

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DATED this 22nd day of August, 2011. VAN COTT, BAGLEY, CORNWALL & McCARTHY

By:

/s/ Stephen K. Christiansen Stephen K. Christiansen Attorneys for Plaintiff POM WONDERFUL LLC

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