biltmore v. nu u - trademark complaint.pdf

8/18/2019 Biltmore v. Nu U - trademark complaint.pdf

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

Case No. 1:15-cv-00288-MR

THE BILTMORE COMPANY,

a Delaware corporation,

Plaintiff,

v.

NU U, INC.

Defendant.

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AMENDED COMPLAINT

NOW COMES the Plaintiff The Biltmore Company (“Biltmore”), by and

through counsel, complaining of the Defendant as follows:

PARTIES AND JURISDICTION

1. The Biltmore Company (“Biltmore”) is a corporation organized under

the laws of Delaware with its corporate headquarters located within Buncombe

County at One North Pack Square, Asheville, North Carolina 28801.

2. Nu U, Inc. (“Nu”) is a North Carolina corporation with a principal

place of business in Buncombe County, North Carolina.

3. This Court has original subject matter jurisdiction over this action

pursuant to 28 U.S.C. § 1331, 28 U.S.C. §§ 1338(a–b), and 15 U.S.C. § 1121. This

Court has related claim and supplemental jurisdiction over the state law tort claims

Case 1:15-cv-00288-MR Document 29 Filed 04/05/16 of 48



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alleged in this Complaint pursuant to 28 U.S.C. § 1338(b) and 28 U.S.C. §

1367(b).

4. This Court has personal jurisdiction over Nu because Nu maintains its

principle place of business within North Carolina.

5. Venue is proper in this district under 28 U.S.C. §§ 1391(b–c) because

Nu is a resident of both North Carolina and the Western District of North Carolina,

a substantial part of the events or omissions giving rise to the claims alleged in this

Complaint occurred in this district, and Nu’s principle place of business is within

the district.

FACTUAL ALLEGATIONS

6. The Biltmore brand is famous for classic, timeless beauty and elegant

hospitality. The Biltmore brand is an invitation to connect with others and savor

life’s moments. Biltmore is the destination lifestyle brand that keeps alive the

beauty of a gracious time and place.

7. The Biltmore brand is built upon Biltmore Estate, an historic multi-

purpose tourist destination covering 8,000 acres in Buncombe County, North

Carolina. Biltmore House, which George Vanderbilt built from 1889-1895, is the

focal point of the Estate. This inspiring and iconic structure is the largest privately

owned house in the United States. Then as now, the Estate provides an oasis from

the hustle and bustle of city living. Through the Estate, the legendary hospitality of




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the Vanderbilts survives to this day.

8. Biltmore House has been meticulously restored to maintain historical

accuracy wherever possible. Today, Biltmore Estate is considered among the best

examples of homes from America’s Gilded Age.

9. Biltmore Estate encompasses Biltmore House and Biltmore Gardens

(available for touring and special events); more than 7000 acres of productive

managed forest, commercial vegetable and viticulture production, and crop and

livestock production (some of which is open for hiking, mountain biking and

horseback riding); Biltmore Winery (a fully functional wine-making facility);

Antler Hill Village (which includes a farm and outdoor adventure center open for

public touring); The Inn on Biltmore Estate (a large upscale hotel with dining and

conference amenities); Village Hotel on Biltmore Estate (Biltmore’s newest hotel

providing comprehensive lodging amenities); numerous dining facilities (including

Bistro, Cedric’s Tavern, Deerpark Restaurant, Smokehouse, Stable Café, The Bake

Shop, The Conservatory Café, and The Courtyard Market); as well as multiple

retail facilities that sell Biltmore branded merchandise, apparel, and jewelry.

Biltmore also maintains a significant online presence through its website,

www.biltmore.com, which provides a portal for ticket purchases, wedding

planning, hotel room and dining reservations, and merchandise sales. Biltmore

Estate as it exists today is shown below:




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10. The BILTMORE mark itself is a fanciful term and inherently strong,

derived from the words “Bildt,” the place Mr. Vanderbilt’s ancestors lived in

Holland, and “more,” the Anglo-Saxon word for “open, rolling land.” Mr.

Vanderbilt himself coined the term during construction of Biltmore House.

11. The BILTMORE mark has acquired tremendous commercial strength.

12. Since 2005, there have been over two billion dollars in branded

consumer transactions under Plaintiff’s BILTMORE mark and approximately $121

million dollars spent on marketing the BILTMORE mark over the same period.

13. Biltmore Estate first opened to the public in the 1930s. Since visitor

record-keeping began after World War II, approximately thirty million paying

guests have visited Biltmore Estate. Today, Biltmore Estate hosts over 1.3 million

paying guests each year from around the world.

14. Since Biltmore Estate opened to the public in 1930, Biltmore has gone

to great expense to ensure that Biltmore House and the entire Estate is as elegant,




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pristine, historically authentic, and visitor-friendly as possible. As a result, the

architecture, interior design, and decor of Biltmore House and Biltmore Estate,

have received widespread international acclaim for their historical importance and

well-preserved beauty.

15. Biltmore is ranked among the top destinations in North Carolina by

numerous travel publications. According to top travel company Fodor’s Travel,

Biltmore is “the most-visited attraction in North Carolina.” Over ten thousand

visitors to Biltmore ranked it “excellent” and “very good” on popular travel review

site “Trip Advisor,” where Biltmore also won the Trip Advisor Certificate of

Excellence.

16. Major motion pictures, television shows, and documentaries have

been filmed at Biltmore Estate, to include Forrest Gump, The Last of the

Mohicans, My Fellow Americans, Richie Rich, Patch Adams, America’s Castles:

Biltmore Estates, and One Tree Hill.

17. Biltmore hosts exhibits of interest to its guests. In 2015, Biltmore

hosted a popular “Downton Abbey” exhibition, “Dress Downton: Changing

Fashion for Changing Times” and “Upstairs-Downstairs Tour.” The exhibition

showcased costumes from the very popular television series, “Downton Abbey,”

and provided guests with both a way to learn more about their favorite television

show and a way to learn about the hospitality offered at Biltmore during the early




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1900s. The “Downton Abbey” exhibition at Biltmore was covered by major news

outlets, to include USA Today, the New York Post, PBS, the Seattle Times, and

the Los Angeles Times. Images from the “Downton Abbey” exhibition at

Biltmore are shown below:

18.

Currently, Biltmore is hosting the “Fashionable Romance: Wedding

Gowns in Film” exhibition. “Fashionable Romance” showcases famous wedding

costumes from period movies, mini-series, and television shows. The webpage for

“Fashionable Romance” from Biltmore’s website is shown below:




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19. Individuals visiting Biltmore house during the exhibit are greeted with

imagery of a classic and luxurious wedding experience. Guests view these famous

wedding gowns as they travel from room to room in the Biltmore House. Images

from the “Fashionable Romance” exhibition are shown below:




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20. Following in the Vanderbilt tradition of philanthropy, Biltmore

supports numerous charitable causes. In particular, Biltmore supports charitable

organizations that focus on supporting people in need, working with food and

farming, and preserving natural and cultural resources. Examples of organizations

Biltmore supported in 2015 include Asheville Area Habitat for Humanity, Eblen

Charities, Business North Carolina Magazine, Hearts with Hands, MANNA

Foodbank, Mountain Housing Opportunities, ASAP, Organic Growers School,

Asheville Greenworks, WNC Friends of the Nature Center, and Forest History

Society/Cradle of Forestry.

21. In addition to its financial support of charitable work, Biltmore

provides over 900 complimentary tickets to over 400 local community

organizations for use at fundraising events or as gifts to those organizations’

employees.

22. In addition to connecting with guests at Biltmore Estate, Biltmore

connects with its guests through the Internet. Biltmore maintains a website at

www.biltmore.com, which discusses the events occurring at Biltmore. Millions of




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people visit Biltmore’s website every year. In fiscal year 2015, Biltmore’s website

averaged over 502,000 unique visitors each month. Since 2005, 48 million people

have visited Biltmore.com.

23. Biltmore is active on social media. Biltmore’s social media sites

include:

a. Biltmore’s Facebook page - www.facebook.com/Biltmore - which has

more than 373,000 likes and 438,000 people identifying they visited the Biltmore

Estate. More than 16,000 people have reviewed their trip to the Biltmore Estate,

with the average review being a high 4.7 out of 5 stars.

b. Biltmore’s Instagram page - www.instagram.com/biltmoreestate/ -

which has 31.4 thousand followers.

c. Biltmore’s Twitter page - twitter.com/BiltmoreEstate - which has 28.9

thousand followers

d. Biltmore’s Google Plus page - plus.google.com/+Biltmore/posts -

which has over 16 million views.

e. Biltmore’s Pinterest page - www.pinterest.com/Biltmore/ - which has

more than 7,000 followers.

f. Biltmore’s YouTube page - www.youtube.com/c/biltmore - which has

more than 1,000 subscribers.

g. Biltmore’s winery, Biltmore Wines, maintains a Twitter presence at




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twitter.com/biltmorewines, and an Instagram presence at instagram.com/biltmore

wines.

h. Biltmore’s wedding business maintains a Twitter presence at

twitter.com/biltmorewednc, and an Instagram presence at www.instagram.com/

biltmoreweddingsnc/.

24. Biltmore devotes substantial resources to promoting the BILTMORE

mark. Biltmore engages in online, television and video, radio, print (such as

magazine and newspaper), and outdoor advertising. Each year, Biltmore spends

millions of dollars to promote and market the BILTMORE mark. In the fiscal year

2015, Biltmore spent over 14 million dollars on advertising and promotion.

25. The BILTMORE brand is closely identified with the art of hospitality.

Biltmore believes hospitality is not formality; it is a lifestyle. To that end,

Biltmore works hard to ensure the BILTMORE mark is representative of elegance,

high class, timelessness, and authenticity. Biltmore is successful in these

endeavors. Consumers recognize the BILTMORE brand as elegant, expensive,

beautiful, relating to hospitality, classic, quality, and extraordinary.

26. In line with its brand reputation, Biltmore sells numerous

understatedly elegant goods on the estate through its retail establishments and

through its online store.

27. Since at least as early as 2001, Biltmore offered and continues to offer




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a wide variety of women’s fashion apparel. Today, this apparel is available

through retail stores on the Biltmore Estate: The Marble Lion, located inside The

Inn on Biltmore Estate, and Antler Hill Outfitters. This apparel includes dresses,

suits, blouses, jackets, and slacks. Examples of Biltmore’s women’s fashion

apparel and accessories are shown below:




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28. Biltmore offers watches and an array of jewelry under its BILTMORE

mark. Biltmore jewelry is available through Biltmore’s retail establishments and

Biltmore’s online store. Examples of Biltmore’s jewelry products are shown

below:




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29. Biltmore sells lotions, soaps, and perfumes under its BILTMORE

mark. Examples of these products from Biltmore’s retail establishments and

product literature are shown below:




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30. Biltmore’s retail establishments use the BILTMORE brand. The

BILTMORE mark is included on retail establishment signs, on signs used

throughout the stores, and as part of displays. Clothing purchases at Biltmore’s

retail establishments are wrapped in gray tissue paper that is held closed with a

burgundy BILTMORE sticker. Jewelry purchases are placed in BILTMORE

boxes. Purchases are placed in a BILTMORE branded bag. The receipts are

emblazoned with the BILTMORE mark. An example of such jewelry point of sale

branding is shown below:




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32. Biltmore’s retail stores are not the only place Biltmore guests and fans

purchase Biltmore’s products. As part of its website, Biltmore maintains an online

store that includes many of its numerous retail offerings. Biltmore’s online store

includes apparel, bath and body products such as soaps, lotions, and perfumes,

jewelry, wine, books, and home décor, and is located at shop.biltmore.com and is

shown below:




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33. Biltmore also licenses the BILTMORE mark to licensees to produce

high quality items worthy of the BILTMORE mark across a wide variety of

consumer products to include furniture, bedding, bath ware, cookware, holiday

décor and decorative accessories. Biltmore has generated tens of millions of

dollars from licensing its BILTMORE mark.

34. Biltmore entered into a license agreement with Belk, an upscale

department store headquartered in Charlotte, North Carolina. Belk offers fashion

apparel, cosmetics, accessories, shoes, home furnishings, and wedding registry

services. Belk operates approximately 300 stores in sixteen states, mostly in the

Southeast. The BILTMORE goods at Belk reflect “Biltmore’s craftsmanship,

beauty, and legacy of gracious hospitality.” An image of Belk’s webpage featuring

BILTMORE items, and Biltmore’s webpage introducing Belk as its licensee, are

shown below:




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the world for BILTMORE and BILTMORE ESTATE. In particular, Biltmore

owns:

a. Incontestable U.S. Trademark Registration Nos.

2,361,022; 3,210,613; 3,690,732; and 3,791,632; 3,855,102 for

BILTMORE. These registrations are valid, enforceable and

subsisting. True and accurate copies of these registrations are

attached hereto as Exhibits A—E.

b.

U.S. Trademark Registration Nos. 4,029,560 and

4,769,396 for BILTMORE. These registrations are valid,

enforceable and subsisting. True and accurate copies of these

registrations are attached hereto as Exhibits F and G.

c. Incontestable U.S. Trademark Registration Nos.

1,616,971, 1,618,044, and 2,316,670 for BILTMORE

ESTATE; U.S. Trademark Registration No. 4,542,205 for

BILTMORE CENTER FOR PROFESSIONAL

DEVELOPMENT; and U.S. Trademark Registration No.

3,846,281 for BILTMORE BREWING COMPANY. These

registrations are valid, enforceable and subsisting. True and

accurate copies of these registrations are attached hereto as

Exhibits H—L




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d. Numerous foreign registrations for BILTMORE, to

include Registration Nos. TMA673,561 (Canada); 10,726,062,

10,560,366, 10,726,061, 10,726,060, 10,726,059, and

10,726058 (China); 292,755 (Egypt); 121,242 (Kuwait);

529,123 (Russia); 1,435,000,405 (Saudi Arabia); and 2013

76849 (Turkey), as well as Registration No. TMA667,921

(Canada) for BILTMORE ESTATE.

38.

Included in its complement of comprehensive guest services, Biltmore

provides an extensive array of award winning wedding and bridal services. These

services include, among others: nationally recognized wedding venue and

reception locations within the Estate; comprehensive wedding packages for

weddings held on the Estate; world-class catering options for wedding rehearsals,

bridesmaid luncheons, receptions, and morning-after brunches; an extensive

offering of outdoor activities for wedding guests, including Biltmore’s: Land

Rover® Experience Driving School, Orvis® Fly-Fishing School, Sporting Clays

School, French Broad River float trips, spa and beauty packages, horseback riding,

hiking, biking, carriage rides, and Segway tours; an Estate Wedding Team of bridal

professionals to assist couples with the planning and execution of their wedding;

and a comprehensive suite of lodging options for the wedding party and guests

through Biltmore’s exclusive Inn on Biltmore Estate, Village Hotel on Biltmore




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Estate, the Cottage on Biltmore Estate, and local area accommodation partners.

39. When a couple elects to have their wedding at Biltmore, Biltmore’s

professional team works with that couple from the moment of first contact through

the wedding day. Biltmore’s team is involved in in-person site visits, reserving

room blocks at Biltmore hotels, planning menus and layouts, arranging rentals for

tents, draping, lighting, china, glass, and silverware, assisting with the wedding

rehearsal, coordinating with the wedding planner, and ensuring Biltmore’s role in

the wedding day runs smoothly.

40. Each year, approximately 180 to 200 weddings are held at Biltmore.

On some weekends, Biltmore hosts as many as nine weddings.

41. Weddings held at Biltmore are elegant, high class affairs.

42. Biltmore has hosted the weddings of several celebrities, including

professional athletes. Images from the 2015 Biltmore wedding of professional

football player Roman Harper and Heather Haukaas are shown below.

43. Biltmore advertises its wedding services in print publications and

online. For example, Biltmore has advertised in print in Weddings Unveiled,




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Town & Country Weddings, The Knot (magazine), The Knot North Carolina

(magazine), Carolina Bride, Inside Weddings, Destination I Do, Southern Bride,

and Martha Stewart Weddings. Biltmore also advertises through its website and its

social media pages. Examples of some of Biltmore’s wedding advertisements

include the following:




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44. Biltmore maintains wedding specific accounts on Twitter and

Instagram. Screen shots of Biltmore Weddings on Instagram and Twitter are

shown below:

45. As part of its social media wedding advertising, Biltmore Weddings

showcases pictures of the happy couple before, during, and after their Biltmore

weddings. When showcasing pictures of brides getting married at Biltmore,

Biltmore Weddings adopted the hashtag #BiltmoreBride. Below is an example of




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a post on Instagram from approximately 86 weeks ago (August 2014), showing

how Biltmore uses the #BiltmoreBride hashtag:

46. Another example of an Instagram post from approximately 80 weeks

ago (September 2014) is shown below:




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47. Brides getting married at Biltmore also use the #BiltmoreBride

hashtag when sharing their own pictures of their special day at Biltmore.

48. The use of a hashtag allows for social media postings and

advertisements to be categorized together by keyword. When a person searches for

a particular keyword, such as “biltmorebride,” all postings and advertisements with

the same or similar hashtag are then produced in the search results. For example,

when an individual interested in wedding services provided by Biltmore searches

for “#biltmorebride” on Facebook®, every posting with the “#biltmorebride”

hashtag will appear in the results, including postings from Biltmore, guests of

Biltmore who hold their weddings at the Estate, and wedding industry

professionals who work events held at Biltmore.

49. Biltmore’s wedding services receive substantial acclaim in national

media. In the past five years, Biltmore has been featured by major media outlets as

a premier wedding location more than 250 times. For example, Biltmore weddings

have been featured in:

e. “10 Vineyards Outside CA Where You Can Get married,” Martha Stewart Weddings.

f.

“Boston Bombing Couple Gets Dream Wedding Planned byAmerica,” People Magazine

g. “Destination Wedding Venue: The Biltmore Estate inAsheville,” Brides.com

h. “Real Wedding Album: BreAnne and Tim,” Glamour




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i. “The Most Luxurious Wedding Venues in the World,” Town &

Country

j. “Where to Get Married: The Best Weddings in All 50 States,”Frommer’s

k. Fall Wedding Destinations,” The Travel Channel.com

50. Well-known online publications with national audiences have also

lauded Biltmore weddings. These include Southern Weddings, Southern Bride &

Groom, Brides.com, BelleTheMagazine.com, Mountainside Bride, Weddings With

Tara, USA Travel Tips, The Black Tie Bride, Honey Darling Events, Town and

Country.com, Glamour.com, agoldenlocket.com, Fox Sports, June Bug Weddings,

weddingstylemagazine.com, Conde Nast Traveler, Washington Post, NY Daily

News, weddingnewsday.com, Asheville Event Co, wedding-spot.com, ai.com,

Grace Ormande Wedding Style, Ceci In New York, BizBash.com, and The Bridal

Bar.

51. Biltmore has been recognized as “one of the USA’s most beautiful

destination wedding venues” by Brides.com.

52. Biltmore’s impressive wedding services caught the attention of The

Knot. Upon information and belief, the Knot is America’s largest wedding news

and inspiration website in the US, reaching more than 11 million unique monthly

visitors. The Knot also publishes print magazines directed towards wedding

planning. In 2013, The Knot selected Biltmore as a Best of Wedding Venue, 2013




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Editors’ Pick.

53. In 2014, The Knot selected Biltmore to be the location for The Knot

Dream Wedding. The Knot Dream Wedding provided a fairy tale wedding for two

survivors of the Boston Marathon bombing. The Knot readers and fans voted for

various aspects of the ceremony, such as dresses and flowers. The Knot Dream

Wedding at Biltmore was covered by the national press, to include People

Magazine and The New York Post. Images from The Knot Dream Wedding 2014

at Biltmore are shown below:

54.

Biltmore received first place honors by BorrowedandBlue.com for

Best All-Around Wedding Venue, Best Venue for Grand Weddings, and Best Fall

Wedding.

55. Biltmore hosted Engage!13, a luxury wedding business summit that




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brings together the most innovative minds in the wedding industry from across the

United States.

56. Biltmore’s weddings business brings in millions of dollars in

revenues. For fiscal year 2015, Biltmore’s weddings business generated more than

four million dollars in revenues.

57. When consumers were asked how they would feel about various

goods and services carrying the BILTMORE brand, wedding-related items were

very appealing. Among those who said that the Biltmore brand would catch their

eye in the marketplace, 70% said that the Biltmore brand would raise their

satisfaction, make the product more appealing, and increase their purchase interest

in wedding-related products.

58. The BILTMORE name in conjunction with weddings is widely

associated in North Carolina as representing Biltmore Estates’ wedding services.

Defendant Nu U’s Use of BILTMORE

59. For several years, Nu operated a combined prom store and a Merle

Norman cosmetics franchise in the greater Asheville area using the marks MERLE

NORMAN ASHEVILLE and TOP 10 PROM. Nu offered prom dresses, shoes,

accessories, and Merle Norman branded cosmetic products. A copy of Nu’s

webpage, mnprom.com, from October 11, 2015 is shown below:




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60. During Fall 2015, Nu rolled out a new identity, which includes the

mark BILTMORE BRIDE. Nu now does business under BILTMORE BRIDE and

BILTMORE BRIDE PROM & TUX and has taken over the Merle Norman

franchise. As shown by the side by side comparison below with Plaintiff’s

BILTMORE mark, Defendant’s adopted a nearly identical stylized font:

61. In November 2015, Nu began operating a Facebook page under the

name BILTMORE BRIDE. The earliest posts on Nu’s BILTMORE BRIDE

branded Facebook page are shown below.




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62. Nu uses the BILTMORE BRIDE Facebook page to advertise retail

bridal services, MERLE NORMAN cosmetics, beauty pageant services, and prom

dresses. Typically, Nu also includes the hashtag #biltmorebride with their

Facebook posts. Examples of posts made by the BILTMORE BRIDE Facebook

page are shown below:




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63.

In or around early November 2015, Nu began using the handle

@biltmorebride on Instagram. Nu uses Instagram to advertise wedding services

under the name BILTMORE BRIDE. As with Facebook, Nu typically includes the

hashtag #biltmorebride with its Instagram posts. An example of Nu’s Instagram

posts is shown below:




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64. In or around December 2015, Nu began operating a Twitter page

under the handle @BiltmoreBridal. Nu uses this page to advertise its wedding

related services. Nu named its Twitter page BILTMORE BRIDE and uses the

#biltmorebride hashtag with many of its posts. An example of one of Nu’s Twitter

posts is shown below:

65. In late 2015 or early 2016, Nu moved to a retail space in a strip mall

at 800 Fairview Road #1, Asheville, North Carolina. Nu operates its retail store

under the marks BILTMORE BRIDE and BILTMORE BRIDE PROM & TUX.

Nu offers its services out of the retail store. Defendant’s store, from an image on

Nu’s Facebook page, is shown below:




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66. In late 2014, Nu, through one of its members, purchased the domains

www.biltmorebride.com and www.biltmorebridal.com. In late 2015, Nu began

using these domains to host its new website. A copy of Nu’s new website is shown

below:

67. Nu uses BILTMORE BRIDE to brand its retail services. For

example, Nu uses BILTMORE BRIDE to brand retail services for jewelry. Nu

sells jewelry in its BILTMORE BRIDE store. Nu’s BILTMORE BRIDE website

also advertises Nu’s jewelry, stating, “Our jewelry collection features heirloom

quality necklaces, earrings and bracelets in designs ranging from modern sleek to




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vintage chic. Find jewelry that accents your wedding dress.”

68. Nu uses BILTMORE BRIDE for retail sales of skin care products, to

include lotions and soaps. Nu sells Merle Norman skin care products, to include

lotions and soaps, in its BILTMORE BRIDE store.

69. Nu’s store is not located in a geographic area designated “Biltmore.”

For example, Nu’s store is not located on Biltmore Avenue, Asheville, in Biltmore

Village, Biltmore Forest, Biltmore Park or on Biltmore Lake.

70.

Biltmore has not licensed or otherwise granted Nu rights to make use

of the BILTMORE mark.

71. To the contrary, in fall 2015, Biltmore asked Nu to stop using

BILTMORE in Nu’s marks. Because Biltmore is well known both generally and

in the wedding industry, Biltmore was concerned that Nu’s use of BILTMORE

BRIDE was likely to cause confusion, mistake, or deceive as to the affiliation,

connection, or association of Biltmore and Nu, or that consumers might wrongly

believe that Biltmore endorses, sponsors, or approves of Nu’s use of the

BILTMORE name. Therefore, Biltmore wrote to Nu and asked Nu to stop using

Biltmore’s name. Nu refused to stop using BILTMORE BRIDE and BILTMORE

BRIDE PROM & TUX. Instead, Nu continues to market and use these marks in

conjunction with its wedding and retail sales, goods and services.

72. Upon information and belief, customers seeing Nu’s signage,




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advertisements, website, Facebook pages, Instagram posts, and other advertising

using BILTMORE BRIDE incorrectly assume that the Nu’s services are associated

with Biltmore, Biltmore Estate, and/or the Biltmore family of marks. Upon

information and belief, consumers seeing Nu’s use of BILTMORE believe Nu has

been endorsed by or is somehow affiliated with Biltmore.

Count I: Trademark Infringement of the BILTMORE family of marks

15 U.S.C. § 1114 & § 1125(a)

73. Biltmore realleges the preceding paragraphs.

74. Plaintiff’s BILTMORE mark includes and benefits from Plaintiff’s

aforementioned family of marks that include the fanciful term BILTMORE.

75. Plaintiff’s BILTMORE mark is famous, to include in Defendant Nu’s

area of trade.

76. The BILTMORE mark is well known to consumers as indicating

Biltmore.

77. Nu adopted use of the marks BILTMORE BRIDE and BILTMORE

BRIDE PROM & TUX with full knowledge of Plaintiff’s use of the BILTMORE

mark.

78.

Defendant Nu first commenced use in commerce of the marks

BILTMORE BRIDE and BILTMORE BRIDE PROM & TUX in late 2015 or early

2016.

79. Upon information and belief, the husband and wife team of David and




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Denise Knapp own Defendant Nu, and Mrs. Denise Knapp is responsible for the

daily operations of Defendant.

80. Upon information and belief, David and Denise Knapp are

sophisticated business people who have been customers of Plaintiff’s BILTMORE

branded goods and services for many years prior to their commencing use of the

BILTMORE BRIDE and BILTMORE BRIDE PROM & TUX marks.

81. Nu currently conducts its business under the marks BILTMORE

BRIDE and/or BILTMORE BRIDE PROM & TUX.

82. Nu offers the same and closely related goods and services to those

offered by Plaintiff.

83. Plaintiff and Defendant offer their services to the same class of

consumers in overlapping geographic areas of trade.

84.

Plaintiff and Defendant both offer online and retail store services for

apparel, cosmetics, and jewelry.

85. Nu offers its BILTMORE BRIDE and/or BILTMORE BRIDE PROM

& TUX goods and services in the same areas where Biltmore offers its goods and

services, namely Asheville and Western North Carolina.

86. Nu offers their BILTMORE BRIDE and/or BILTMORE BRIDE

PROM & TUX goods and services through at least some of the same channels of

trade as those used by Biltmore to offer BILTMORE branded goods and services,




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to include retail stores.

87. Nu advertises its BILTMORE BRIDE and/or BILTMORE BRIDE

PROM & TUX goods and services through at least some of the same channels of

trade as those used by Biltmore to advertise its BILTMORE goods and services, to

include Internet webpages and social media.

88. Nu’s use of BILTMORE in its marks, on the store, on the Internet, in

social media, and in advertising is likely to cause confusion, or to cause mistake, or

to deceive consumers into believing that Nu is associated with, affiliated with, or

endorsed by Biltmore.

89. Nu infringes Biltmore’s family of BILTMORE marks.

Count II: False Designation of Origin for Wedding Related Services

15 U.S.C. § 1125(a)


91. Biltmore uses the BILTMORE mark to offer wedding services.

92. Biltmore’s BILTMORE mark is advertised extensively through print

and online media.

93. Biltmore’s BILTMORE branded wedding services are covered by

independent national news organizations.

94. Biltmore generates millions of dollars in revenues associated with its

BILTMORE wedding services.

95. Biltmore’s BILTMORE wedding services are well known in North




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Carolina.

96. Bridal customers in North Carolina associate the BILTMORE mark

with plaintiff’s wedding services and venues.

97. Biltmore has common law trademark rights in BILTMORE for

wedding services.

98. Nu offers wedding related services in the form of retail services for

wedding dresses, tuxedos, and accessories.

99.

Nu offers its wedding related retail services under the name

BILTMORE BRIDE and/or BILTMORE BRIDE PROM & TUX.

100. Nu offers its wedding related retail services under BILTMORE

BRIDE and/or BILTMORE BRIDE PROM & TUX to at least some of the same

consumers Biltmore targets for Biltmore’s BILTMORE wedding services, to

include consumers planning weddings in Asheville and Western North Carolina.

101. Nu advertises its wedding related retail services under BILTMORE

BRIDE and/or BILTMORE BRIDE PROM & TUX through at least some of the

same channels as those used by Biltmore to advertise Biltmore’s BILTMORE

wedding services, to include through the Internet and social media.

102. Nu uses the same social media hashtag, #biltmorebride, to offer its

BILTMORE BRIDE and/or BILTMORE BRIDE PROM & TUX wedding related

retail services that Biltmore uses to offer its BILTMORE wedding services.




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103. Upon information and belief, Nu generates initial interest confusion

through their use of biltmorebride and biltmorebridal on the Internet and social

media. Consumers looking for Biltmore’s BILTMORE wedding services are

likely to be misdirected to Nu’s websites and social media pages due to Nu’s use of

the BILTMORE name in conjunction with weddings and brides.

104. Nu’s use of BILTMORE BRIDE and/or BILTMORE BRIDE PROM

& TUX is likely to cause confusion or to cause mistake or to deceive as to the

affiliation, connection, or association of Nu with Biltmore, or as to the origin,

sponsorship or approval of Nu’s services by Biltmore.

105. Nu is committing common law trademark infringement of Biltmore’s

BILTMORE mark for wedding services.

106. Nu is engaging in false designation of origin under the Lanham Act.

Count III: False Designation of Origin for Retail Sales and Retail Sales

of Branded Merchandise

15 U.S.C. § 1125(a)


108. Biltmore offers a BILTMORE branded retail experience through its

numerous BILTMORE retail stores located on Biltmore Estate and through its

online store.

109. Biltmore’s retail sales under the BILTMORE brand for the past ten

years through its numerous BILTMORE retail stores and online are in excess of




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two hundred fifty million dollars.

110. Biltmore’s BILTMORE retail sales are heavily marketed and widely

known.

111. Biltmore’s BILTMORE retail sales include retail sales of women’s

apparel, accessories, jewelry, cosmetics, lotions, perfumes, and soaps.

112. Biltmore’s BILTMORE retail sales include retail sales of

BILTMORE branded women’s apparel, accessories, jewelry, cosmetics, lotions,

perfumes, and soaps.

113. Biltmore has common law trademark rights in BILTMORE for retail

services of women’s apparel, accessories, jewelry, cosmetics, lotions, perfumes,

and soaps.

114. Nu offers retail services for women’s apparel, accessories, jewelry,

cosmetics, lotions, perfumes, and soaps.

115. Nu offers its retail services under the name BILTMORE BRIDE

and/or BILTMORE BRIDE PROM & TUX.

116. Nu offers its retail services under BILTMORE BRIDE and/or

BILTMORE BRIDE PROM & TUX to at least some of the same consumers

Biltmore targets for Biltmore’s BILTMORE retail services, to include consumers

in Asheville and Western North Carolina.

117. Nu advertises its retail services under BILTMORE BRIDE and/or




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BILTMORE BRIDE PROM & TUX through at least some of the same channels as

those used by Biltmore to advertise Biltmore’s BILTMORE retail services, namely

the Internet and social media.




sponsorship or approval of Nu’s retail services by Biltmore.

119.

Nu is committing common law trademark infringement of Biltmore’s

BILTMORE mark for retail services

Count IV: Infringement of registered marks

15 U.S.C. § 1114


121. Biltmore owns incontestable U.S. Trademark Registration 3,855,102

for BILTMORE for jewelry.

122. Biltmore owns U.S. Trademark Registration 4,029,560 for

BILTMORE for soaps, perfumes, cosmetics, and lotions.

123. Biltmore owns U.S. Trademark Registration 3,210,613 for watches.

124.

Nu sells jewelry in its BILTMORE BRIDE store.

125. Nu sells soaps, perfumes, cosmetics, and/or lotions in its

BILTMORE BRIDE store.

126. Upon information and belief, Nu sells watches in its BILTMORE




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BRIDE store.

127. Biltmore and Nu offer their respective jewelry, watches, soaps,

perfumes, cosmetics, and lotions through retail stores in the greater Asheville area.

128. Biltmore and Nu advertise their respective goods and services

through the same channels, such as on the Internet.

129. Nu is offering the highly related services under BILTMORE BRIDE

and/or BILTMORE BRIDE PROM & TUX as compared with the goods offered by

Biltmore under Biltmore’s federally registered BILTMORE trademarks.

130. Nu is offering its BILTMORE BRIDE and/or BILTMORE BRIDE

PROM & TUX services through the same or highly similar channels of trade as

those used by Biltmore to sell its goods under its trademarks.

131. Nu advertises its BILTMORE BRIDE and/or BILTMORE BRIDE

PROM & TUX services through the same channels as those Biltmore uses to

advertise its goods under its BILTMORE trademarks.

132. Nu does not have permission from Biltmore to use the BILTMORE

name in conjunction with retail sales of jewelry, watches, soaps, perfumes,

cosmetics, or lotions.







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sponsorship or approval of Nu’s retail services by Biltmore

134. Nu is infringing Biltmore’s federally registered trademarks.

Count V: Cybersquatting

15 U.S.C. § 1125(d)


136. Biltmore has registered and owns the BILTMORE mark under the

Lanham Act.

137. Nu has demonstrated a bad faith intent to profit from the distinctive

BILTMORE mark by registering and using the domain names

www.biltmorebridal.com and www.biltmorebride.com, which contain and are

confusingly similar to the BILTMORE mark.

138. Nu offers goods and services in direct competition with Biltmore

through the www.biltmorebridal.com and www.biltmorebride.com websites. For

example, Nu advertises jewelry, soaps, lotions, perfume, and apparel and Nu’s

retail services for the same through these websites.

139. Nu’s use of these URLs amounts to cybersquatting under then

Lanham Act.

PRAYER FOR RELIEF

WHEREFORE Biltmore respectfully prays the Court that:

A. the Court find against Nu and enter judgment against Nu on all

counts;




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B. the Court permanently enjoin Nu and all those acting in concert with

Nu from making any use of the marks BILTMORE, BILTMORE BRIDE,

BILTMORE BRIDE PROM & TUX and of any other marks confusingly similar

thereto;

C. the Court order Nu to transfer www.biltmorebride.com and

www.biltmorebridal.com, as well as any other URL that includes the letter string

“biltmore” to Biltmore;

D.

the Court award Biltmore its reasonable attorneys’ fees pursuant to 15

U.S.C. § 1117(a);

E. the costs of this action be taxed against Nu; and

F. the Court grant Biltmore such other and further relief as the Court

may deem just and proper.

DEMAND FOR JURY TRIAL

Plaintiff demands a trial by jury be held on all issues so triable.




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Respectfully submitted this the 5th day of April, 2016.

Coats & Bennett, PLLC

By: /s/ Anthony J. Biller Anthony J. Biller

NC State Bar No. 24,1171400 Crescent Green, Suite 300Cary, North Carolina 27518Telephone: (919) 854-1844Facsimile: (919) 854-2084Email: [email protected]

Roberts & Stevens, P.A.

By: /s/ Wyatt S. Stevens

Wyatt S. Stevens NC Bar No. 21,056John David Noor

NC Bar No. 43,102P.O. Box 7647Asheville, NC 28802Telephone: (828) 258-6992Facsimile: (828) 253-7200Email: [email protected]

[email protected]

OF COUNSEL:

J. Bennett MullinaxJ. Bennett Mullinax, LLCPO Box 26029Greenville, SC 29616-1029

Attorneys for The Biltmore Company




CERTIFICATE OF SERVICE

I hereby certify that on this the 5th day of April, 2016 a copy of theforegoing AMENDED COMPLAINT was filed with the Clerk of Court using theCM/ECF system which will send notification to opposing counsel at the followingaddress:

Joseph Pinckney McGuireRebecca E. CrandallMcGuire, Wood & Bissette, P.A.P. O. Box 3180Asheville, NC 28802-3180

[email protected] [email protected]

Russell M. RacineCranfill Sumner & Harzog, LLP2907 Providence RoadSuite 200Charlotte, NC [email protected]

/s/ Anthony J. Biller

Anthony J. Biller

Attorney for The Biltmore Company

biltmore v. nu u - trademark complaint.pdf

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