cluck u trademark complaint.pdf

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CLUCK-U, CORP. * 14504 Greenview Drive, Suite 200 * Laurel, Maryland 20708 * * Plaintiff * v. * * CLUCK-U CHICKEN, INC. * 1163 Toledo Blade Blvd * North Port, FL 34288 * * and * Case No.: 1:15-cv-03439 * ANTHONY L. TARTAGLIA, JR. * 1163 Toledo Blade Blvd * North Port, FL 34288 * * and * * BOARDWALK TONY’S, INC. * 1163 Toledo Blade Boulevard * North Port, FL 34288 * * Defendants * * ****************************************************************************** VERIFIED COMPLAINT (Money Damages and Injunctive Relief) Plaintiff, Cluck-U, Corp. (hereinafter “Cluck-U” or “Franchisor”), by and through its undersigned counsel, hereby sues Defendants, Cluck-U Chicken, Inc., Anthony L. Tartaglia, Jr., and Boardwalk Tony’s, Inc. (hereinafter “Defendants,” “Franchisee,” or “Franchisees,”) and respectfully states as follows: Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 1 of 33

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Page 1: Cluck U trademark complaint.pdf

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CLUCK-U, CORP. * 14504 Greenview Drive, Suite 200 * Laurel, Maryland 20708 * * Plaintiff * v. * * CLUCK-U CHICKEN, INC. * 1163 Toledo Blade Blvd * North Port, FL 34288 * * and * Case No.: 1:15-cv-03439 * ANTHONY L. TARTAGLIA, JR. * 1163 Toledo Blade Blvd * North Port, FL 34288 * * and * * BOARDWALK TONY’S, INC. * 1163 Toledo Blade Boulevard * North Port, FL 34288 * * Defendants * * ******************************************************************************

VERIFIED COMPLAINT (Money Damages and Injunctive Relief)

Plaintiff, Cluck-U, Corp. (hereinafter “Cluck-U” or “Franchisor”), by and through its

undersigned counsel, hereby sues Defendants, Cluck-U Chicken, Inc., Anthony L. Tartaglia, Jr., and

Boardwalk Tony’s, Inc. (hereinafter “Defendants,” “Franchisee,” or “Franchisees,”) and respectfully

states as follows:

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 1 of 33

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INTRODUCTION

1. This is an action at law and in equity for trademark infringement, false designation of

origin, and unfair competition arising from Defendants’ improper use of Cluck-U’s trademarks (the

“Infringing Marks”), tradenames and goodwill. Defendants’ use of the Infringing Marks is likely to

cause confusion, and in fact, has caused confusion, among the relevant consuming public, and will

continue to cause the Plaintiff significant harm if permitted to continue. This action for damages and

injunctive relief is necessary to compensate the Plaintiff for the harm already caused to it and to prevent

any further harm resulting from Defendants’ improper use of the Infringing Marks.

2. As more fully described below, Defendants, Cluck-U Chicken, Inc., and Anthony L.

Tartaglia, Jr., were parties to a Franchise Agreement with Cluck-U dated May 21, 2013. Upon

information and belief, Cluck-U Chicken, Inc. has changed its corporate name to Boardwalk Tony’s,

Inc. The Franchise Agreement sets out the terms pursuant to which the Defendants were authorized to

operate a Cluck-U franchise servicing North Port, Florida. The Franchise Agreement was properly

terminated by Cluck-U due to the Defendants’ defaults under the Franchise Agreement. Before and

since that termination, the Defendants have breached their obligations under the Franchise Agreement,

including, inter alia, failure to pay royalties and submit royalty reports required by the Agreement and

failure to cease use of Cluck-U trademarks in connection with their continued operation of the franchise

location in North Port, Florida.

3. Defendants are operating a quick-service restaurant using the proprietary marks and

designs associated with the Cluck-U franchise system, a franchise concept owned by Plaintiff, without

Plaintiff’s authorization. Defendants are also simultaneously operating a competing restaurant at the

franchised location named “Boardwalk Tony’s of North Port” in violation of the Franchise Agreement.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 2 of 33

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A photograph depicting both the Cluck-U and Boardwalk Tony’s names is attached hereto as Exhibit A.

Plaintiff has demanded that Defendants cease their infringing use of Plaintiff’s proprietary materials. To

date, however, Defendants have refused to comply with Plaintiff’s demands and are continuing to use

Plaintiff’s intellectual property without Plaintiff’s consent. Defendants’ actions have caused and are

continuing to cause Plaintiff to suffer substantial harm to its brand and reputation. For the reasons set

forth more fully below, Plaintiff seeks monetary, injunctive, and other relief against Defendants.

PARTIES AND JURISDICTION

4. Plaintiff, Cluck-U, Corp., is a corporation incorporated under the laws of the State of

Maryland with its principal place of business located at 14504 Greenview Drive, Suite 200, Laurel,

Maryland 20708. Plaintiff is engaged in the business of franchising independent businesses to operate

Cluck-U restaurants throughout Maryland, Pennsylvania, New Jersey, Florida, and internationally.

Cluck-U franchisees are licensed to use the trademarks, service marks, and trade names of Cluck-U and

to operate under Cluck-U’s system, which involves the preparation, cooking, and sale of fried chicken

and related products utilizing a specially designed building with special equipment, equipment layouts,

interior and exterior accessories, special recipes, identification schemes, products, management

programs, standards, specifications, proprietary marks, and identification. Plaintiff is also the owner of

the trademark, service mark, and trade name “Cluck-U” and related marks.

5. Upon information and belief, Defendant, Cluck-U Chicken, Inc. (“CUC”), is a

corporation organized and existing under the laws of the State of Florida with its principal place of

business located in 1163 Toledo Blade Blvd, North Port, FL 34288. Upon information and belief,

Cluck-U Chicken, Inc. has changed its corporate name to Boardwalk Tony’s, Inc.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 3 of 33

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6. Upon information and belief, Defendant Anthony L. Tartaglia, Jr. (“Tartaglia”) is a

citizen of the State of Florida residing in North Port, Florida. Further, upon information and belief,

Defendant Tartaglia is the current owner/president/principal shareholder of Defendants CUC and

Boardwalk Tony’s, Inc., and directed, controlled, participated in, engaged in, performed, authorized,

approved, ratified, actively and knowingly caused, or was the moving, active or conscious force behind

the acts of Defendants CUC and Boardwalk Tony’s, Inc. forming the basis of this Complaint.

7. Upon information and belief, Defendant, Boardwalk Tony’s, Inc. is a corporation

organized and existing under the laws of the State of Florida with its principal place of business located

in 1163 Toledo Blade Boulevard, North Port, Florida 34288. Upon information and belief, Boardwalk

Tony’s, Inc. is the successor-in-interest to Defendant Cluck-U Chicken, Inc.

8. Jurisdiction is proper in this Honorable Court pursuant to 28 U.S.C. §§ 1331 and 1338

because Cluck-U alleges violations of the Lanham Act, 15 U.S.C. § 1051, et seq. This Honorable Court

may exercise supplemental jurisdiction over the state law claims under 28 U.S.C. §§ 1338 and 1367

because these claims are joined with substantial and related claims under the Lanham Act.

9. Personal jurisdiction and venue are proper in this Honorable Court under 28 U.S.C. §

1391, in that a substantial part of the events giving rise to this Complaint occurred in this District and

because Section XVII of the Franchise Agreement entered into between the parties provides that

personal jurisdiction and venue are proper in a court of competent jurisdiction located within Prince

George’s County, Maryland.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 4 of 33

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FACTS COMMON TO ALL COUNTS

The Cluck-U Franchise System

10. Cluck-U is the owner of the Cluck-U Chicken brand and franchises use of the brand at

approximately twenty (20) Cluck-U restaurants. Cluck-U brand restaurants have operated since 1985,

and enjoy significant goodwill and name recognition. Cluck-U restaurants provide a variety of services

featuring eat-in, take-out, and delivery of buffalo wings, fried chicken, salads, and sandwiches such as

burgers, throughout the mid-Atlantic region of the United States, including Maryland, Pennsylvania, and

New Jersey.

11. Cluck-U, its predecessor-in-interest, and their respective franchisees have used the Cluck-

U service mark for over 20 years in connection with a wide range of restaurant-related-services.

12. Prior to entering into a franchise agreement with Defendants, Plaintiff was and remains

still the record owner of, and periodically licenses the Cluck-U, Corp. federally registered marks which

include: (1) Reg. No. 3241336 (“Cluck-U”); (2) Reg. No. 3235545 (“The Cluck-U Logo”); (3) Reg. No.

2390442 (“It’s an Addiction”); (4) Reg. No. 3316198 (“Miniwich”); (5) Reg. No. 3316224 (“Sugar

Bees”); (6) Reg. No. 3316804 (“The Mascot Logo”); (7) Reg. No. 3316132 (“Cluckwich”); (8) Reg. No.

3316805 (“Cluckster’s Logo”); (9) Reg. No. 3316202 (“Clucker Bees”); (10) Reg. No. 3316204

(“Clucker Spuds”); (11) Reg. No. 3460787 (“Fresh Food, Grilled or Fried U Decide”); (12) Reg. No.

3460786 (“911 Winger Challenge”); (13) Reg. No. 3461042 (“Cluck-U Chicken”); (14) Reg. No.

4053355 (“Cluckersters”); (15) Reg. No. 3316201 (“Cinna Bees”); (16) Reg. No. 3432595

(“Cluckster’s”); (16) Reg. No. 3316805 (“Cluck-U Logo”), (collectively, the “Cluck-U Trademarks”).

Copy Right Reg. No. TX6-813-550 (Cluck-U Chicken “911” Wingers Challenge) (collectively the

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 5 of 33

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“Cluck-U Trademarks”) (true copies of the registrations are attached hereto as Exhibit B. Cluck-U

provides notice of its registrations by marking its website and menus with the ® symbol.

13. Cluck-U has developed distinctive source indicators for use in the Cluck-U restaurants,

including, but not limited to, interior and exterior signage, menus, graphics and paint colors as well as

the look of the restaurants (the “Cluck-U Trade Dress”).

14. A key component of the Cluck-U unique restaurant experience also includes the recipes,

know how and other novel methods and ideas for operating the Cluck-U restaurants including, but not

limited to, food preparation, quality and portion control which are included in the Operators Manual

provided to each franchisee (the “Cluck-U Trade Secrets”). Franchisees contractually agree to maintain

the secrecy of the Cluck-U Trade Secrets.

15. The Cluck-U Trade Secrets are methods and other confidential information which are not

publicly known and are used in Cluck-U’s business and which gives it an advantage over competitors

who do not possess the Cluck-U Trade Secrets.

16. Cluck-U has taken precautions to maintain the secrecy of the Cluck-U Trade Secrets,

including, but not limited to, password access on computer files, confidentiality agreements, and other

appropriate means of ensuring secrecy.

17. From 1985 through present, Cluck-U, its predecessor, and their respective franchisees

have engaged in the marketing and use of the Cluck-U Trademarks in connection with their restaurant

services. Cluck-U and its franchisees have invested millions of dollars in advertising, marketing, and

promoting those marks and the services provided under them.

18. As a result of the continuous and exclusive extensive use of the Cluck-U marks by Cluck-

U and its franchisees, the marks enjoy wide public acceptance and association with Cluck-U and have

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 6 of 33

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come to be recognized widely and favorably by the public as indicators of the source of Cluck-U’s high

quality line of cuisine in this District and around the country. The extension promotion by Cluck-U and

its franchisees of theses marks has resulted in millions of dollars in revenues received for services

provided in connection with Cluck-U marks. The success of the Cluck-U franchise system has led to a

number of favorable media references in articles and in the popular press.

19. As a result of the extensive use and promotion of the Cluck-U marks throughout the

country by Cluck-U, its predecessor in interest, and their respective franchisees, Cluck-U has built up

and now owns valuable goodwill that is symbolized by Cluck-U Trademarks. The Cluck-U Trademarks

are distinctive and have achieved significant secondary meaning and fame. Through Cluck-U’s stellar

reputation and investment of time, money, creativity, and efforts, Cluck-U Trademarks have acquired

significant value and goodwill in this District and across the country.

The Franchise Agreement

20. Plaintiff entered into a Franchise Agreement with Defendants on or about May 21, 2013

to allow Defendants CUC and Tartaglia to operate a Cluck-U Chicken restaurant in North Port, Florida

at 1163 Toledo Blade Blvd, North Port, FL 34288. Pursuant to the Agreement, the Defendants were

authorized and required to use the aforementioned marks, together with Cluck-U’s business format,

educational and training programs, advertising programs, standard policies and procedures, and

techniques for operating a Cluck-U franchised business. The Agreement also required Defendants to

remit to Cluck-U, on a periodic basis, royalties and other fees, to provide Cluck-U with certain financial

reports, and to provide on-site monitoring access to Cluck-U.

21. Defendants have explicitly acknowledged Cluck-U’s exclusive right to the

aforementioned marks and confirmed that the Agreement granted them a conditional license only.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 7 of 33

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22. Plaintiff permitted Defendants to open a Cluck-U restaurant and use of Cluck-U

Trademarks and the Cluck-U Trade Secrets under confidence, at 1163 Toledo Blade Boulevard, North

Port, Florida 34288 (the “Franchised Location”), pursuant to the limitations of a franchise agreement.

(“Franchise Agreement”).

23. The Franchise Agreement signed by Defendants included numerous obligations of the

Franchisees including maintaining the secrecy of the Cluck-U Trade Secrets found in the Confidential

Operating Manual, acknowledgment of Cluck-U’s ownership of the Cluck-U Trademarks, Cluck-U

Trade Dress, and Cluck-U Trade Secrets.

24. The Franchise Agreement entered into between the parties placed various obligations on

the Defendants, including, but not limited to:

a. A requirement that Defendants serve, sell or offer for sale all food and beverage

products and merchandise and only such products and merchandise: (i) as listed as standard

menu items (including local, regional or national specials) and/or merchandise designated from

time to time in the Operating Manual; and (ii) as have met Franchisor’s uniform standards of

quality and portions and appear on Franchisor’s approved food and beverage Brands list

designated from time to time in the Operating Manual; and (iii) as have been prepared in

accordance with recipes and food handling an preparation methods and procedures designated

from time to time in the “Operating Manual”;

b. A requirement that Defendants use only goods, services, and supplies which have

the distinctive packaging bearing the Marks of the Franchisor when available. A requirement

that the Franchisees purchase from or through Franchisor (if available), any and all goods,

services and supplies, including all foodstuffs, paper goods, merchandise and other supplies and

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 8 of 33

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equipment, whether or not bearing Franchisor’s name, from or through Franchisor or

Franchisor’s approved sources;

c. A requirement that Defendants not to deviate in any respect from Franchisor’s

written standards and specifications for serving or selling such products without Franchisor’s

prior written consent. Moreover, the Defendants agreed to never offer unapproved products;

d. A requirement that Defendants maintain a service contract with a computer

provider in order to grant Plaintiff independent access to their computer system at all times via

the internet. Moreover, the Defendants agreed to purchase and maintain at their own expense a

computer monitored surveillance system approved by Plaintiff that could be viewed over the

internet and accessible to the Franchisor at all times;

e. A requirement that the Defendants would execute a lease for the franchised

location that gave the Franchisor a right to assume the lease upon the termination of the franchise

relationship;

f. A requirement that the Defendants would submit to the Plaintiff monthly profit

and loss statements, by the 5th day of the following month, by email or fax;

g. A requirement that, in addition to monthly profit and loss statements, that the

Defendants would at least annually and upon demand by the Plaintiff file with the Plaintiff its

year end corporate tax report, proof of payment of sales tax, proof of payment of withholding

taxes or other corporate tax filings, including scheduling K1 showing the ownership interest of

each of the beneficial owners, and other similar or equivalent state, local and federal filings;

h. A requirement that the Defendants would submit by wire transfer or electronic

transfer (“ACH”), on a monthly basis, a monthly royalty fee equal to five percent (5%) of each

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 9 of 33

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calendar’s gross sales as payment for the Defendants’ continued right to use the Cluck-U

Chicken system;

i. A requirement that Defendants, upon signing the Franchise Agreement or

immediately thereafter, execute a written statement attested to by its owners verifying the names

and percentage ownership of each owner.

25. The Defendants agreed that breaches of the following obligations, among others, would

give the Plaintiff right to terminate the Franchise Agreement upon written notice to the Defendants:

a. If Franchisor discovers that Franchisee has made any material misrepresentation

or omitted material fact in the information furnished by Franchisee in connection with the grant

of the Franchise;

b. If Franchisee fails to submit monthly profit and loss statements to Franchisor by

the fifth (5th) day of the following month and the failure remains uncured for 15 days;

c. If the Franchisee is over forty-five (45) days past due in its account with an

approved supplier and such arrearage remains uncured for 30 days;

d. If Franchisee fails, refuses or neglects to pay promptly when due any amounts

owed to Franchisor within the applicable cure or grace period.

26. The Defendants agreed that upon the termination of the Franchise Agreement by the

Franchisor that they would refrain thereafter from using any recipes, the trade name or Mark or other

identifying characteristic that is any way associated with Franchisor and from operating or doing

business under any name or in any manner that might tend to give the public the impression that

Franchisee is or was a licensee or Franchisee or otherwise associated with Franchisor.

Case 1:15-cv-03439-GLR Document 1 Filed 11/11/15 Page 10 of 33

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27. The Defendants also entered into a covenant not to compete with Plaintiff that provides

as follows:

Section XVIII – Covenant not to Compete

Franchisee covenants and agrees that during the term of this Agreement and for a period of two (2) years thereafter, Franchisee will not, directly or indirectly, enter the employment of, or perform any advising or consulting services for, or make an investment in, or have an interest in, any company, partnership, organization, proprietorship, or other entity that engages in the retail restaurant business within a radius of five (5) miles from the location in any direction.

Franchisee covenants and agrees that during the term of this Agreement and for a period of two (2) years thereafter, Franchisee will not, directly or indirectly, enter the employment of, or perform any advising or consulting services for, or make an investment in, or have an interest in, any company, partnership, organization, proprietorship, or other entity that engages in the fast food primarily chicken retail restaurant business (where a majority of revenues is derived from the sale of chicken products and/or using the word “Chicken” in its trade name) within a radius of twenty-five (25) miles from the Location in any direction.

28. Subject to the conditions of the Franchise Agreement and continuing faithful

performance thereunder, Plaintiff licensed to Defendants, for and during the term of the Franchise

Agreement and at the location identified above, the right to sell and prepare food products bearing

Plaintiff’s trade name and service mark Cluck-U Chicken and other associated trade names, trademarks

and service marks of the Plaintiff, including, but not limited to, logos, slogans and trade dress

(collectively hereinafter “Marks”), and to use the related system of preparation and sale of food, recipes

and concepts (collectively hereinafter “System”).

29. Subsequent to Defendants’ opening of the franchised location, the Defendants breached

the Franchise Agreement in the following ways, among others:

a. Failing to maintain uniform products, operation and design, and a high standard of

quality for food preparation and service to develop and maintain the goodwill of the Franchisor

for all of its franchisees;

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b. Failing to purchase products from the approved sources;

c. Failing to follow the approved preparation, cooking, and serving procedures;

d. Failing to pay an approved Distributor US Food services invoices, as a balance of

Ten Thousands Four Hundred Seventy Dollars and One Cent ($10,470.01) remains outstanding;

e. Failing to pay service providers, paper providers and food provider a considerable

amount of invoices;

f. Failing to provide monthly profit and loss statements;

g. Failing to provide access for monitoring camera system for the store;

h. Failing to pay monthly royalties;

i. Failing to provide access to point of sale system for the store for monitoring sales;

j. Holding themselves out as an agent or legal representative of the Franchisor in an

effort to secure better services and pricing from vendors.

30. As a result of Defendants’ breaches of the Agreement, Plaintiff provided Defendants with

notice of violation of the Franchise Agreement and, upon Defendants’ failure to cure the aforementioned

breaches, written notice terminating the Franchise Agreement in accordance with the Franchise

Agreement demanding that Defendants: (1) immediately cease and desist using any and all trademarks,

trade secrets and trade names belonging to Cluck-U, Corp.; (2) cease and desist advertising or serving

substantially similar products of Cluck-U Chicken; (3) inform all suppliers, service providers, or others

that it is no longer doing business as Cluck-U Chicken; and (4) disconnect phone numbers identified

with the name “Cluck-U Chicken” or “University Chicken” and to stop any yellow pages listings or

other listings and advertising under the name of “Cluck-U Chicken” or “University Chicken”.

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31. Despite the notice of violation, opportunity to cure, and termination, Defendants,

however, have failed to comply with Plaintiff’s demand to discontinue use of Plaintiff’s aforementioned

registered marks, and as a result, have continued to willfully use, in bad faith, Plaintiff’s trademarks,

trade secrets and trade names. At all times relevant hereto, including during Defendants’ use of

Plaintiff’s registered marks, Defendants have had actual knowledge that Plaintiff is the record owner of

the aforementioned registered marks. Defendants have further violated the Franchise Agreement in

various ways, including but not limited to, operating a restaurant at the Franchised Location not in

compliance with the Franchise Agreement, continuing to use the Cluck-U Trademarks, Cluck-U Trade

Dress and the Cluck-U Trade Secrets and failure to comply with termination duties and the

confidentiality and non-compete clause.

32. In addition to continuing to operating a Cluck-U Chicken Restaurant in violation of the

Franchise Agreement, the Defendants have commenced operation of “Boardwalk Tony’s North Port”

where it sells chicken wings and even offers a Cluck-U Chicken Cluckster on the “Boardwalk Tony’s

North Port” Facebook page.

33. The Cluck-U Trade Secrets are being used by Defendants in connection with their

restaurant activities at the Franchised Location, after termination of the Franchise Agreement, to the

detriment of Cluck-U and in direct violation of the Franchise Agreement.

34. The Cluck-U Trade Secrets were used or disclosed by Defendants in breach of the

confidences owed by them to Plaintiff in connection with the operation of a chicken restaurant at the

Franchised Location.

35. Defendants continue to use the Cluck-U Trade Secrets without the express or implied

consent from Cluck-U.

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36. Defendants, when using the Cluck-U Trade Secrets knew or had reason to know that the

Cluck-U Trade Secrets were acquired under circumstances giving rise to a duty to maintain its secrecy

or limit its use.

37. Defendants have represented and continue to represent to the public that their goods or

services have the sponsorship, approval, characteristics, ingredients, uses, benefits, and/or quantities of

authorized Cluck-U franchisees.

38. Defendants have actively committed, participated in, personally directed the infringing

acts complained of herein.

COUNT I (Breach of Contract)

39. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 38 of this

Complaint with the same effect as if herein fully set forth.

40. Plaintiff entered into a franchise agreement with Defendants CUC and Tartaglia dated

May 21, 2013, to allow the Defendants to operate a Cluck-U Chicken restaurant in North Port, Florida

located at 1163 Toledo Blade Boulevard, North Port, Florida 34288.

41. Plaintiff’s grant of a franchise for the system and marks was made in consideration of the

initial franchise fees, monthly royalty payments, promotion of the Franchisor’s name and marks and the

ensuing goodwill that is generated for the benefit of the Plaintiff and its system, and other periodic or

ongoing fees, rebates, discounts and incentives as stated in the franchise agreement.

42. Plaintiff has discovered that Defendants have failed to comply with the terms set forth in

the Franchise Agreement entered into between the parties. Defendants have materially breached the

Agreement by:

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a. Failing to maintain uniform products, operation and design, and a high standard of

quality for food preparation and service to develop and maintain the goodwill of the Franchisor

for all of its franchisees;

b. Failing to purchase products from the approved sources;

c. Failing to follow the approved preparation, cooking, and serving procedures;

d. Failing to pay approved Distributor US Food services invoices, as a balance of

Ten Thousands Four Hundred Seventy Dollars and One Cent ($10,470.01) remains outstanding;

e. Failing to pay service providers, paper providers and food provider a considerable

amount of invoices;

f. Failing to provide monthly profit and loss statements;

g. Failing to provide access for monitoring camera system for the store;

h. Failing to pay monthly royalties fees which they are required to pay under the

Franchise Agreement. There is presently due and owing from Defendants to Cluck-U, Corp. the

sum of Nine Thousand Six Hundred-Forty Dollars and Eight-Two Cents ($9,640.82) for past due

royalties through July 31, 2015;

i. Failing to provide access to point of sale system for the store for monitoring sales;

j. Holding themselves out as an agent or legal representative of the Franchisor in an

effort to secure better services and pricing from vendors.

43. Due to Defendants’ breach of the Franchise Agreement, after first providing Defendants’

with the opportunity to cure their breaches, Plaintiff sent Defendants a written notice stating that the

Franchise Agreement was terminated and requesting that Defendants immediately cease and desist using

any and all trademarks and tradenames belong to Plaintiff, cease and desist advertising or serving

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substantially similar products of Cluck-U Chicken, inform all suppliers service providers, or other that it

is no longer doing business as Cluck-U Chicken, disconnect phone numbers identified with the name

“Cluck-U Chicken” or “University Chicken” and to stop any yellow pages listing or other listings and

advertising under the name of “Cluck-U Chicken” or “University Chicken”. Notwithstanding Plaintiff’s

cease and desist notice, the Defendants have continued to operate the Cluck-U franchised location in

North Port, Florida.

44. As a direct result of Defendants’ breach of the Franchise Agreement, Plaintiff has

suffered substantial pecuniary harm and damage, including, but not limited to, lost royalties, profits,

income and attorney’s fees and costs, exceeding One Hundred Thousand Dollars ($100,000.00).

WHEREFORE, Plaintiff, Cluck-U, Corp., requests that this Honorable Court:

A. Order, adjudge, and decree that Defendants have breached the Franchise

Agreement;

B. Enter judgment in favor of Plaintiff, Cluck-U, Corp., and against Defendants,

jointly and severally, in the amount of Three Hundred and Fifty Thousand and 00/100 Dollars

($350,000.00) or such amount is proved at trial; and

C. Grant Plaintiff such additional and further relief as its cause may require and is

appropriate.

COUNT II (Trademark Infringement — 15 U.S.C. § 1114(1))

45. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 44 of this

Complaint with the same effect as if herein fully set forth.

46. Plaintiff and its predecessors have continuously, and in good faith, used throughout the

United States the Registered Trademarks to indicate the source of services and goods.

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47. Plaintiff is the title owner of the Registered Trademarks at issue. Plaintiff’s Registered

Trademarks are conclusive evidence of the validity of the Registered Trademarks, of the Registered

Trademarks registration, of Cluck-U Corp.’s ownership of the Registered Trademarks and of Cluck-U,

Corp.’s exclusive right to use, without condition or limitation, the Registered Trademarks in commerce

on or in connection with the services and products specified in the certificates of registration.

48. Upon information and belief, Defendants have offered and continue to offer their services

and goods under the Registered Trademarks in the United States subsequent to the aforesaid notice

terminating the Franchise Agreement with actual knowledge of the prior use of the Registered

Trademarks by Plaintiff or its predecessor.

49. The services and goods offered and sold by Defendants under the Registered Trademarks

move within the same channels of trade and are purchased by the same class of customer as the services

and goods offered by Cluck-U, Corp. under Cluck-U, Corp.’s Registered Trademarks.

50. Defendants’ deliberate adoption and use of the Registered Trademarks in connection with

services and goods is likely to cause confusion and, in fact, has caused confusion among consumers and

vendors about the source of the goods and services provided by both the Plaintiff and the Defendants, all

to Plaintiff’s irreparable harm and detriment. Defendant has infringed, and continues to infringe, the

Cluck-U mark.

51. Defendants’ intentional use in commerce of the Registered Trademarks without

Plaintiff’s consent constitutes an impermissible reproduction, counterfeit, copy, or colorable imitation of

Plaintiff’s Registered Trademarks and such use is likely to cause confusion, or to cause mistake, or to

deceive, all in violation of Plaintiff’s incontestable and conclusive right to use the Registered

Trademarks exclusively throughout the United States.

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52. Defendants’ intentional use in commerce of the Registered Trademarks and name without

Plaintiff’s consent and in connection with labels, signs, prints, packages, wrappers, receptacles, or

advertisements that are used or intended to be used in connection with the sale, offering for sale,

distribution, or advertising of Defendants’ goods and services, constitutes an impermissible

reproduction, counterfeit, copy, or colorable imitation of Plaintiff’s Registered Trademarks as used in

connection with Plaintiff’s services and goods, which intentional use is likely to cause confusion, or to

cause mistake, or to deceive, all in violation of Cluck-U, Corp.’s incontestable and conclusive right to

use the Registered Trademarks exclusively throughout the United States.

53. Plaintiff has suffered, and continues to suffer, damages and irreparable harm as a result of

Defendants’ infringement.

WHEREFORE, Plaintiff Cluck-U, Corp., respectfully requests that this Honorable Court:

A. Order, adjudge, and decree that Defendants have intentionally and willfully

committed federal trademark infringement under 15 U.S.C. §1114(1);

B. Order, pursuant to 15 U.S.C. § 1117, that Defendants disgorge all profits obtained

by Defendants as a result of the Trademark Infringement;

C. Award the Plaintiff the damages sustained as a result of the Trademark

Infringement;

D. Award the Plaintiff, pursuant to 15 U.S.C. § 1117 and the Franchise Agreement,

reasonable attorney’s fees and the costs of this action;

E. Award the Plaintiff, pursuant to 15 U.S.C. § 1117, treble damages;

F. Grant a temporary restraining order, preliminary and permanent injunction

prohibiting Defendants, and Defendants’ officers, agents, servants, employees, attorneys,

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successors, assigns and all others in privity, or acting in concert therewith, from using Plaintiff’s

Trademarks or any other name, word, term, symbol or device, or any combination thereof, in

connection with goods or services in a manner which is likely to be confused with Plaintiff’s

Trademarks; and

G. Award such other and further relief as the Court may deem just.

COUNT III (Trade Dress Infringement – 15 U.S.C. § 1125(a)

54. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 53 of this

Complaint with the same effect as if herein fully set forth.

55. Upon information and belief, Defendants adopted or modified its trade dress for use at

the Franchised Location with knowledge of Cluck-U Trade Dress.

56. Defendants deceptively used, and continue to use in commerce, confusingly similar trade

dress to the Cluck-U Trade Dress, which is likely to cause confusion, to cause mistake and to deceive

the public as to the source of Defendants’ services or as to a possible affiliation with or sponsorship by

Cluck-U.

57. Defendants’ conduct has caused Cluck-U to suffer, and unless enjoyed by the Court, will

cause Cluck-U to continue to suffer damages to its operation, reputation, and goodwill, and will suffer

the loss of sales and profits that Cluck-U would have made but for Defendants’ acts. Defendants have

been, and will continue to be, unjustly enriched by their unlawful acts.

58. Cluck-U has no adequate remedy at law. Defendants’ conduct has caused and, if not

enjoined, will continue to cause irreparable harm to Cluck-U. As a result of Defendants’ wrongful

conduct, Cluck-U is entitled to injunctive relief.

WHEREFORE, Cluck-U request that this Honorable Court:

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A. Order, adjudge and decree that Defendants have intentionally and willfully

committed trade dress infringement in violation of 15 U.S.C. § 1125(a)(1)(A);

B. Order, pursuant to 15 U.S.C. § 1117, that Defendants disgorge all profits obtained

by Defendants as a result of the Trademark Dress Infringement;

C. Award the Plaintiff the damages sustained as a result of the Trademark Dress

Infringement;

D. Award the Plaintiff, pursuant to 15 U.S.C. § 1117 and the Franchise Agreement,

reasonable attorney’s fees and the costs of this action;

E. Award the Plaintiff, pursuant to 15 U.S.C. § 1117, treble damages;

F. Grant a temporary restraining order, preliminary and permanent injunction

prohibiting Defendants, and Defendants’ officers, agents, servants, employees, attorneys,

successors, assigns and all others in privity, or acting in concert therewith, from using Plaintiff’s

Trade Dress; and

G. Award such other and further relief as the Court may deem just.

COUNT IV (Federal Unfair Competition – 15 U.S.C. § 1125(a))

59. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 58 of this

Complaint with the same effect as if herein fully set forth.

60. Defendants have actual knowledge of the prior use of Plaintiff’s Trademarks, and are

using said Trademarks in commerce and in connection with food service to present a false designation of

origin, a false or misleading description of fact, or a false or misleading representation of fact which is

likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or

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association of Defendants with Plaintiff or as to the origin, sponsorship, or approval of Defendants’

restaurant services and goods by Plaintiff.

61. The services and goods offered and sold by Defendants under Plaintiff’s Trademarks

move within the same channels of trade and are apt to be purchased by the same class of customer as the

services and goods offered by Plaintiff under Plaintiff’s Trademarks.

62. Defendants’ use of Plaintiff’s Trademarks, in connection with restaurant services and

goods, falsely describes and falsely represents to members of the trade, the business community, and the

public that the services and products offered by Defendants under Plaintiff’s Trademarks in some way

originate with or are sponsored or endorsed by Plaintiff or meet Plaintiff’s standards of quality, all to

Plaintiff’s irreparable damage and detriment.

63. Defendants and/or persons otherwise associated with or employed by Defendants had

actual knowledge of the prior use of Plaintiff’s Trademarks by Cluck-U, Corp. and its predecessors in

connection with restaurant services and goods and Defendants’ willful and deliberate adoption of

Plaintiff’s Trademarks, and its subsequent services and sales of goods under Plaintiff’s Trademarks has

damaged Plaintiff and will continue to the irreparable detriment of Plaintiff unless enjoined by this

Court.

64. Defendants’ continued, unauthorized, willful, and deliberate use of Plaintiff’s

Trademarks in connection with restaurant services and goods constitutes a false designation of origin

and federal unfair competition, all in violation of Plaintiff’s incontestable and conclusive right to use

Plaintiff’s Trademarks as a trademark exclusively throughout the United States.

WHEREFORE, Plaintiff Cluck-U, Corp., respectfully requests that this Honorable Court:

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A. Order, adjudge, and decree that Defendants, Cluck-U Chicken, Inc. and Anthony

L. Tartaglia, have intentionally and willfully engaged in Federal Unfair Competition under 15

U.S.C. § 1125(a);

B. Order that Defendants disgorge all profits obtained by Defendants as a result of

the Federal Unfair Competition under 15 U.S.C. § 1125(a);

C. Award the Plaintiff the damages sustained as a result of the Federal Unfair

Competition;

D. Award the Plaintiff, pursuant to 15 U.S.C. § 1117 and the Franchise Agreement,

reasonable attorney’s fees and the costs of this action;

E. Award the Plaintiff, pursuant to 15 U.S.C. § 1117, treble damages;

F. Grant a temporary restraining order, preliminary and permanent injunction

prohibiting Defendants, and Defendants’ officers, agents, servants, employees, attorneys,

successors, assigns and all others in privity, or acting in concert therewith, from engaging in

Federal Unfair Competition under 15 U.S.C. § 1125(a); and

G. Award such other and further relief as the Court may deem just.

COUNT V (Trademark Dilution – 15 U.S.C. 1125(c)(1))

65. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 59 of this

Complaint with the same effect as if herein fully set forth.

66. Plaintiff is the registered owner of the aforementioned distinctive and famous

Trademarks. Plaintiff’s Trademarks are widely recognized by the general consuming public as the

exclusive designation of Plaintiff’s business. The services and goods offered and sold by Defendants

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under Plaintiff’s Trademarks move within the same channels of trade and are apt to be purchased by the

same class of customer as the services and goods offered by Plaintiff under Plaintiff’s Trademarks.

67. Defendants have actual knowledge of the prior use of Plaintiff’s Trademarks, and are

using said Trademarks in commerce and in connection with food service thereby causing a dilution by

blurring. The marks used by Defendants are identical with little to no inherent or acquired

distinctiveness, thereby causing a direct association between the marks.

68. Defendants’ use of Plaintiff’s Trademarks, in connection with restaurant services and

goods, falsely describes and falsely represents to members of the trade, the business community, and the

public that the services and products offered by Defendants under Plaintiff’s Trademarks in some way

originate with or are sponsored or endorsed by Plaintiff or meet Plaintiff’s standards of quality, all to

Plaintiff’s irreparable damage and detriment. As such, Defendants’ use of Plaintiff’s Trademark also

constitutes a dilution by tarnishment.

69. Defendants’ continued, unauthorized, willful, and deliberate use of Plaintiff’s

Trademarks in connection with restaurant services and goods constitutes trademark dilution, in violation

of Plaintiff’s incontestable and conclusive right to use Plaintiff’s Trademarks as a trademark exclusively

throughout the United States.

WHEREFORE, Plaintiff Cluck-U, Corp., respectfully requests that this Honorable Court:

A. Order, adjudge, and decree that Defendants have intentionally and willfully

committed federal trademark dilution under 15 U.S.C. §1125(c)(1);

B. Order, pursuant to 15 U.S.C. § 1117, that Defendants disgorge all profits obtained

by Defendants as a result of the Trademark Dilution;

C. Award the Plaintiff the damages sustained as a result of the Trademark Dilution;

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D. Award the Plaintiff, pursuant to 15 U.S.C. § 1117 and the Franchise Agreement,

reasonable attorney’s fees and the costs of this action;

E. Award the Plaintiff, pursuant to 15 U.S.C. § 1117, treble damages;

F. Grant a temporary restraining order, preliminary and permanent injunction

prohibiting Defendants and Defendants’ officers, agents, servants, employees, attorneys,

successors, assigns and all others in privity, or acting in concert therewith, from further

Trademark Dilution;

G. Award such other and further relief as the Court may deem just.

COUNT VI (Common Law Trademark Infringement)

70. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 69 of this

Complaint with the same effect as herein fully set forth.

71. Defendants have used, and continue to use, in commerce and without Plaintiff’s

authorization or consent, a reproduction, copy or colorable imitation of Plaintiff’s Trademarks

intentionally and in bad faith.

72. Defendants’ intentional and willful acts have caused and are likely to cause confusion as

to the source of Plaintiff’s Trademarks. The marks used by Defendants are identical and confusingly

similar.

73. Defendants’ acts constitute trademark infringement under common law.

74. Defendants’ use of Plaintiff’s Trademarks was, and is, with full knowledge of Plaintiff’s

exclusive rights in the Cluck-U, Corp. Trademarks and therefore constitutes willful infringement.

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75. Defendants’ infringement of Plaintiff’s Trademarks has caused, and continues to cause,

irreparable harm to Plaintiff. Unless this Court enjoins Defendants from continuing their unauthorized

use of Plaintiff’s Trademarks and colorable imitations, Plaintiff will continue to suffer irreparable harm.

WHEREFORE, Plaintiff, Cluck-U, Corp., respectfully requests that this Honorable Court:

A. Order, adjudge, and decree that Defendants have intentionally and willfully

committed common law trademark infringement;

B. Order that Defendants disgorge all profits obtained by Defendants as a result of

the trademark infringement;

C. Award the Plaintiff the damages sustained as a result of the Trademark

Infringement;

D. Award the Plaintiff reasonable attorney’s fees and the costs of this action;

E. Award the Plaintiff treble damages;

F. Grant a temporary restraining order, preliminary and permanent injunction

prohibiting Defendants, and Defendants’ officers, agents, servants, employees, attorneys,

successors, assigns and all others in privity, or acting in concert therewith, from using Plaintiff’s

Trademarks or any other name, word, term, symbol or device, or any combination thereof, in

connection with goods or services in a manner which is likely to be confused with Plaintiff’s

Trademarks or Trade Secrets;

G. Award such other and further relief as the Court may deem just.

COUNT VII (Common Law Unfair Competition)

76. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 75 of this

Complaint with the same effect as if herein fully set forth.

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77. Plaintiff is the senior user of the Cluck-U mark and thus owns all right in that mark under

common law.

78. Defendants are unfairly competing with Plaintiff by using the Infringing Mark in

connection with their business activities in an effort to benefit from Plaintiff’s goodwill and stellar

reputation.

79. Plaintiff has suffered, and continues to suffer, damages and irreparable harm as a result of

Defendants’ unfair competition.

80. Unless enjoined by this Court, Defendants will continue the above referenced acts of

unfair competition, thereby causing Plaintiff to suffer additional damages and irreparable injury for

which it has no adequate remedy of law.

WHEREFORE, Plaintiff respectfully requests that this Court:

A. Order, adjudge, and decree that Defendants have intentionally and willfully

engaged in Common Law Unfair Competition;

B. Order that Defendants disgorge all profits obtained by Defendants as a result of

the Common Law Unfair Competition;

C. Award the Plaintiff the damages sustained as a result of the Common Law Unfair

Competition;

D. Award the Plaintiff reasonable attorney’s fees and the costs of this action;

E. Award the Plaintiff treble damages;

F. Grant a temporary restraining order, preliminary and permanent injunction

prohibiting Defendants, and Defendants’ officers, agents, servants, employees, attorneys,

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successors, assigns and all others in privity, or acting in concert therewith, from engaging in

Common Law Unfair Competition; and

G. Award such other and further relief as the Court may deem just.

COUNT VIII (Trafficking in Counterfeit Marks – § 1-414, B.R., Maryland Code)

81. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 80 of this

Complaint with the same effect as if herein fully set forth.

82. Without Plaintiff’s consent, Defendants have used, and continue to use a colorable

imitation of Plaintiff’s Trademarks in connection with the sale, distribution, offering for sale, or

advertising of food products in violation of Section 1-414 of the Business Regulations Article, of the

Annotated Maryland Code. Defendants’ use of a colorable imitation of Plaintiff’s Trademarks is likely

to cause confusion or mistake or to deceive as to the source of origin of Defendants’ food products.

83. Defendants have engaged in the act of trafficking in counterfeit marks and have caused

Cluck-U, Corp. substantial business injury. Cluck-U, Corp. has no adequate remedy at law for these

injuries. Unless Defendants are restrained by this Court from continuing its trafficking of counterfeit

marks, these injuries will continue to accrue.

84. Defendants’ conduct has caused Cluck-U, Corp. to suffer, and, unless enjoined by the

Court, will continue to cause it to suffer, damage to its operations, reputation and goodwill.

85. Defendants have been, and, unless enjoined by the Court, will continue to be, unjustly

enriched by its unlawful acts such that monetary damages alone cannot fully compensate Cluck-U, Corp.

for the injuries caused by Defendants’ misconduct.

WHEREFORE, Plaintiff Cluck-U, Corp., respectfully requests that this Honorable Court:

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A. Order, adjudge and decree that Defendants have engaged in the trafficking of

counterfeit marks in violation of §1-414, BR, Maryland Code;

B. Under § 1-414, BR, Maryland Code, award Cluck-U, Corp. its damages and/or

for Defendants to disgorge their profits, or both, against Defendants for trafficking in counterfeit

Cluck-U, Corp. Trademarks, and that such award be trebled;

C. Under § 1-414, BR, Maryland Code, order that any reproduction, counterfeit,

copy or imitation of the Cluck-U, Corp. Trademarks in Defendants’ possession or control be

disposed of or destroyed;

D. Award Cluck-U, Corp., pursuant to 15 U.S.C. § 1117, attorneys’ fees;

E. Award such other and further relief as the Court may deem just.

COUNT IX (Violation of Maryland Uniform Trade Secrets Act § 11-1201)

86. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 85 of this

Complaint with the same effect as if herein fully set forth.

87. Defendants’ conduct as alleged in this Complaint constitutes actual or threatened

misappropriation of trade secrets pursuant to Md. Code Ann. Com. Law II §§ 11-1201 through 11-1209.

88. Defendants entered into confidentiality agreements with Cluck-U pursuant to which they

agreed not to disclose or use Cluck-U’s confidential information. The confidentiality agreements are

valid and enforceable contracts.

89. The operational methods and goods offered and sold by Plaintiff are trade secrets not

generally known to, and not readily ascertainable by other persons. Plaintiff’s trade secrets include, but

are not limited to, Cluck-U’s recipes, know how and other novel methods and ideas for operating the

Cluck-U Restaurants, including, but not limited to, food preparation, quality, and portion control. Such

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confidential information satisfies the statutory definition of “trade secrets” because the information

derives independent economic value from not being generally known to, and not being readily

ascertainable by proper means by the public or any other person who can obtain economic value from its

disclosure, and is the subject of efforts by Cluck-U that are reasonable under the circumstances to

maintain its secrecy and constitutes trade secrets under Md. Code Ann. Com. Law II § 11-1201(e).

Further, Plaintiff takes reasonable efforts to protect these operational methods and goods offered through

the use of a non-disclosure and confidentiality agreement.

90. The trade secrets are highly valuable to Plaintiff and constitute a primary source of its

income. Defendants have improperly taken the trade secrets without Plaintiff’s authorization and

without a right or privilege to do so and have used and disclosed said trade secrets in its own business.

91. Through the acts alleged herein, Defendants knowingly and intentionally misappropriated

trade secrets belonging to Cluck-U. Defendants’ misappropriation included, but was not limited to,

proprietary information regarding the Plaintiff’s recipes, know how and other novel methods and ideas

for operating the Cluck-U restaurants including, but not limited to, food preparation, quality and portion

control.

92. Defendants unlawfully used Cluck-U’s trade secrets and Confidential Information to: (a)

accelerate their own efforts to duplicate the Plaintiff’s capabilities in the marketplace, and (b)

successfully market themselves to Cluck-U’s customers to acquire what had been the Plaintiff’s work.

Defendants, and each of them, knew and understood that the trade secrets acquired, used and disclosed

by Defendants, was proprietary to Cluck-U, and that the use and/or disclosure of it would result in

competitive harm to Cluck-U.

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93. It is probable, if not certain, that the Defendants will continue to improperly use the

plaintiff’s trade secrets and Confidential Information to operate and profit from Defendants’ operation of

the restaurant at issue.

94. The conduct of the Defendants in misappropriating the plaintiff’s trade secrets and

confidential information was intentional, willful and malicious.

95. As a result of said conversion and misappropriation of trade secrets, Plaintiff has suffered

damages in an amount in excess of Three Hundred Fifty Thousand Dollars ($350,000.00).

96. Unless Defendants are restrained by this Court from continuing to misappropriate and use

the trade secrets of Cluck-U, Corp., Plaintiff will suffer immediate substantial and irreparable injury.

97. The benefits to Cluck-U, Corp. in obtaining injunctive relief are equal to or outweigh the

potential harm which Defendants would incur if this Court grants the requested injunctive relief.

98. The public interest is best served by granting the injunction.

WHEREFORE, Plaintiff, Cluck-U, Corp., respectfully requests that this Honorable Court:

A. Order, adjudge and decree that Defendants’ acts constitute misappropriation of

trade secrets under the Maryland Uniform Trade Secrets Act, and that such acts were committed

willfully and maliciously;

B. Enter a temporary restraining order, preliminary injunction, and permanent

injunction restraining Defendants from continuing to misappropriate the trade secrets of Plaintiff;

C. Enter judgment in favor of Plaintiff and against Defendants, jointly and severally,

for compensatory damages in the amount of Three Hundred Fifty Thousand Dollars

($350,000.00), plus attorneys’ fees, interest, and costs; and

D. Grant Plaintiff such other and further relief as its cause may require.

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COUNT X (Breach of Guaranty Agreement)

99. Plaintiff adopts by reference the allegations contained in paragraphs 1 through 98 of this

Complaint with the same effect as if herein fully set forth.

100. On or about May 21, 2013, Plaintiff and Defendant Tartaglia entered into a Guaranty

Agreement. The Guaranty Agreement provides, in pertinent part, as follows:

1. The Guarantors hereby unconditionally, irrevocably and directly guarantee to Franchisor the prompt, punctual and full: (a) payment when due (whether by acceleration, declaration, demand, extension or otherwise) of all principal and interest, interest or principal, royalties, franchise fees, and of all other monies payable under the Agreement; and (b) performance when due on all covenants, promises, agreements, and the accuracy and completeness of all representations and warranties, contained in the Agreement (collectively, the “Guaranteed Obligations”). 2. Should the Franchisee for any reason fail to pay all or any part of the Guaranteed Obligations as and when due and payable (whether by acceleration, declaration, demand, extension or otherwise), the Guarantors promise to pay immediately the same to Franchisor at 14504 Greenview Drive, Suite 200, Laurel, Maryland 20708, or such other place as Franchisor may designate from time to time by notice to Guarantors, plus interest thereon at the rate of 15% per annum from the date due until paid in full. …… 4. The Guarantors hereby waive demand, presentment for payment, protest, notice of dishonor and of protest, notice of acceptance of this Guaranty, Guarantors do not waive notice of the making of any of the Guaranteed Obligations and notice of default under any of the Documents. Said notice shall be in writing as provided in paragraph 11.

101. Plaintiff sent notice of default to Defendant Tartaglia.

102. Defendant Tartaglia has not issued payment in response to Plaintiff’s demand for

payment and, as such, has breached the Guaranty Agreement.

WHEREFORE, Plaintiff Cluck-U, Corp., respectfully requests that this Honorable Court:

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A. Order, adjudge and decrease that Defendant Tartaglia breached the guaranty

agreement;

B. Enter judgment in favor of Plaintiff and against Defendant Tartaglia for

compensatory damages in the amount of Three Hundred Fifty Thousand Dollars ($350,000.00),

plus attorneys’ fees, interest, and costs; and

C. Grant Plaintiff such other and further relief as the nature of its cause may require.

Respectfully Submitted: HENDERSON LAW, LLC /s/WPH Wes P. Henderson Paul C. Balassa, Of Counsel Henderson Law, LLC 2140 Priest Bridge Court, Suite 6 Crofton, MD 21401 P: 410-721-1979 F: 410-721-2258 [email protected] [email protected] Attorneys for Plaintiff

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