heritage distilling - 12 trademark complaint.pdf

7/23/2019 Heritage Distilling - 12 trademark complaint.pdf

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COMPLAINT -- 1 MILLER NASH GRAHAM &

DUNN LLP Pier 70, 2801 Alaskan Way ~ Suite 300

Seattle, Washington 98121-1128(206) 624-8300/Fax: (206) 340-9599

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UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

HERITAGE DISTILLING COMPANY, aWashington corporation,

Plaintiff,

vs.

WHITE RIVER DISTILLERS, LLC, aWashington limited liability company,

Defendant.

))

))))))))))

No.

COMPLAINT

JURY DEMAND

JURISDICTION

1. This is an action for federal trademark infringement, unfair competition, and false

designation of origin, and arises under the trademark laws of the United States, namely, 15

U.S.C. §§ 1114, 1116-17, 1121, and 1125(a), and related causes of action under the laws of the

State of Washington and common law arising from the wrongful use by Defendant of Plaintiff’s

trademarks and trade names as described below. This Court has jurisdiction pursuant to 15

U.S.C. § 1121, 28 U.S.C. §§ 1331 and 1338(a) and (b).

2. This Court has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) with

respect to claims arising under the laws of the State of Washington in that such claims are so

related to the claims under the trademark laws of the United States that they form part of the

same case or controversy under Article III of the United States Constitution.

Case 2:15-cv-01980-BAT Document 1 Filed 12/15/15 of 25






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VENUE

3. Venue is vested in this Court pursuant to 28 U.S.C. § 1391(b) in that the asserted

claims arose within the district and that this Defendant, or its agents, conducts business, resides,

or may be found within this district.

PARTIES

4. Plaintiff Heritage Distilling Company is a corporation duly organized and

existing under the laws of the State of Washington. Its principal place of business is located in

Gig Harbor, Washington.

5. Defendant White River Distillers, LLC is a limited liability company duly

organized and existing under the laws of the State of Washington. Its principal place of business

is located in Enumclaw, Washington.

FACTS

6. Plaintiff is a craft distillery engaged in selling spirits, distilled spirits and liquors

under the federally registered trademark BATCH NO. 12 and design mark BATCH NO. 12,

which consists of the number 12 prominently displayed with the words BATCH NO. in smaller

print over it (together, the “Heritage 12 marks”). The federally registered design mark is

displayed below:

7. On February 3, 2014, Plaintiff filed a U.S. federal trademark application to

register the mark BATCH NO. 12 in International Class 033 for distilled spirits and spirits. It







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subsequently obtained a federal trademark registration for the mark on October 6, 2015

(Registration No. 4,827,815). A copy of the registration certificate for BATCH NO. 12 is

attached hereto as Exhibit A. Plaintiff has used the mark continuously in commerce in

connection with distilled spirits and spirits since at least as early as June 2014.

8. On May 2, 2014, Plaintiff filed a U.S. federal trademark application to register the

design mark BATCH NO. 12 in International Class 033 for distilled spirits and spirits. It

subsequently obtained a federal trademark registration for the mark on October 6, 2015

(Registration No. 4,828,034). A copy of the registration certificate for the BATCH NO. 12

design mark is attached hereto as Exhibit B. Plaintiff has used the mark continuously in

commerce in connection with distilled spirits and spirits since at least as early as June 2014.

9. Plaintiff provides its spirits, distilled spirits and liquors under the Heritage 12

marks throughout the State of Washington through major retailers such as Trader Joe’s, Costco,

Safeway, Albertson’s, Fred Meyer, QFC, Walgreens, independent IGA stores, U.S. Navy

exchange stores on base, and other on-premise and off-premise retailers. Plaintiff also sells its

spirits, distilled spirits and liquors under the Heritage 12 marks in interstate commerce, including

in Oregon, Montana, and Wyoming, with the explicit approval and authorization of state-owned

liquor store systems, and in California and Washington, D.C., through distributors and direct

retailers. Plaintiff is in negotiations with brokers and distributors to sell its spirits, distilled spirits

and liquors under the Heritage 12 marks in Nevada, New York, New Jersey, Maryland,

Delaware, Virginia and Texas. Plaintiff further offers its products under the Heritage 12 marks

online to individual consumers from certain states.

10. Plaintiff expends considerable time and expense to market its spirits, distilled

spirits and liquors under the Heritage 12 marks through social media, television, and broadcast

radio, and web streaming services. These advertisements are national, and Plaintiff’s broadcast

radio ads are run daily throughout Washington on multiple radio stations, and every Sunday on







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sports network radio broadcasts throughout Washington, Idaho, Oregon, Alaska and British

Columbia, Canada.

11. As a result of Plaintiff’s expenditure of considerable time and expense in

continuously and aggressively marketing its spirits and liquors in connection with its distinctive

Heritage 12 marks, the consuming public has come to recognize all alcoholic beverages sold in

connection with the Heritage 12 marks as originating from, approved or sponsored by, or

otherwise associated with Plaintiff.

12. Defendant filed an application for federal registration of the mark 12 SPIRITS on

May 5, 2014. A true and correct copy of Defendant’s trademark application is attached hereto as

Exhibit C. The application is still pending with the U.S. Patent and Trademark Office.

13. In June 2014, Defendant began offering spirits for sale in the greater Seattle area

and elsewhere in the Pacific Northwest branded with a label shown below featuring a trademark

(the “White River 12 Mark”) that is very similar to Plaintiff’s. A comparison of Defendant’s

labels (left) and Plaintiff’s labels (right) is included in the chart below:

Defendant’s Labels

featuring the “White River 12 Mark”

Plaintiff’s Labels







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14. Plaintiff has priority in its Heritage 12 marks by virtue of the filing dates of its

federal trademark applications, which predate Defendant’s first use of the White River 12 mark

in commerce or any other date upon which Defendant can rely for priority purposes.

15. Plaintiff has informed Defendant of Plaintiff’s priority of rights in the Heritage 12

marks. Plaintiff has demanded that Defendant cease and desist from using marks or labels in any

manner that are likely to cause consumers to mistakenly believe that Defendant is associated

with or authorized by Plaintiff.

16. As of the date of this filing, Defendant has not responded to this demand and its

product continues to feature confusingly similar marks and labels.

17. Defendant’s continued use of the White River 12 mark is likely to cause

confusion among consumers.

18. In fact, actual confusion has resulted from Defendant’s use of the White River 12

mark, which is confusingly similar to Plaintiff’s Heritage 12 mark. For example, on multiple

occasions consumers have referenced Heritage through social media, at least once to complain

about the quality of its products, when in fact the consumers had instead purchased or consumed

Defendant’s products sold under the White River 12 mark.







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19. Such confusion irreparably harms Plaintiff and Plaintiff’s business reputation,

particularly where, as with social media, it results in false negative publicity for Plaintiff’s

products. Defendant’s use of the White River 12 mark is also likely to cause a decline in the

sales of Plaintiff’s products, as a result of both individuals inadvertently purchasing Defendant’s

product under the mistaken belief that it is being offered by Plaintiff and individuals choosing

not to purchase Plaintiff’s product because of negative impressions that arose from experience

with Defendant’s products.

CAUSES OF ACTION

First Cause of Action – Federal Trademark Infringement, 15 U.S.C. § 1114

20. Plaintiff re-alleges and incorporates by this reference the allegations contained in

Paragraphs 1 through 19 above.

21. Defendant’s spirits and liquors, offered in connection with the White River 12

mark, are sold in, and/or otherwise affect interstate commerce, to the same consuming public and

travel through the same trade channels as the distilled spirits, spirits and liquors that Plaintiff

offers for sale in connection with its registered Heritage 12 marks.

22. Defendant’s spirits and liquors have been sold in the same and similar retail

outlets as Plaintiff’s, and Defendant’s spirits and liquors compete with Plaintiff’s distilled spirits,

spirits and liquors.

23. In selling its spirits and liquors under the White River 12 mark, Defendant is

willfully and knowingly infringing and will continue to further infringe the rights of Plaintiff and

its federally registered Heritage 12 marks in violation of 15 U.S.C. § 1114, as a result of the

continued, unauthorized use of Defendant’s White River 12 mark, with the intention of deceiving

and misleading the consuming public, and by wrongfully trading on Plaintiff’s goodwill and

reputation.

24. Defendant’s use of the White River 12 mark is likely to cause confusion or

mistake or deception of purchasers as to the source, origin, sponsorship, affiliation, approval or







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connection of Defendant and its goods, in that purchasers and others are likely to believe that

Plaintiff authorizes or licenses Defendant’s products or that Defendant’s business affiliated with

the White River 12 mark is associated with Plaintiff.

25. Defendant’s use of the White River 12 mark has caused actual confusion by

leading customers to associate Defendant’s products with those of Plaintiff, to the detriment of

Plaintiff’s reputation and sales.

26. By its wrongful acts, Defendant has caused irreparable injury and damage, which

cannot now be accurately computed, to Plaintiff and to the goodwill associated with Plaintiff’s

registered marks. Unless restrained by the Court, Defendant is likely to continue to do so.

27. As a result of the foregoing, Plaintiff has and will suffer damages in an amount to

be proven at trial. Consistent with 15 U.S.C. § 1117(a), among other remedies, Plaintiff is

entitled to recover its damages, Defendant’s profits, and the cost of this suit.

Second Cause of Action – False Designation of Origin (Federal), 15 U.S.C. § 1125



29. Defendant’s use of the White River 12 mark in connection with the promotion

and distribution of its spirits and liquors in commerce has caused and is likely to continue to

cause confusion, mistake and deception among the consuming public as to the origin,

sponsorship, and/or approval of the Defendant’s spirits and liquors.

30. As a result of Defendant’s intentional and wrongful acts, purchasers are likely to

purchase Defendant’s goods in connection with the White River 12 mark instead of Plaintiff’s

services in connection with the Heritage 12 marks, thereby injuring Plaintiff by diverting sales to

Defendant. Purchasers are also likely to confuse Defendant’s goods with those of Plaintiff.

31. Plaintiff has no control over the quality of the goods sold by Defendant and,

because of the confusion as to the origin, sponsorship or approval of the Defendant’s goods

engendered by Defendant, Plaintiff’s extensive and valuable goodwill is at the mercy of







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Defendant, and Plaintiff has suffered and will continue to suffer irreparable harm should such

conduct be allowed to occur.

32. Such acts by Defendant are willful and deliberate, designed specifically to trade

upon the valuable goodwill of Plaintiff. Defendant’s acts constitute a false representation and a

false designation of origin in violation of 15 U.S.C. § 1125(a).

33. By its wrongful acts, Defendant has and will cause great harm and damage to

Plaintiff, which cannot now be assessed or computed and, unless restrained by the Court, has and

will continue to cause irreparable injury and damage to Plaintiff and to the goodwill associated

with the Heritage 12 marks.

34. Because Plaintiff filed a U.S. federal trademark application to register its Heritage

12 marks on February 3, 2014 and May 2, 2014, prior to Defendant’s use of the White River 12

mark in June of 2014, Defendant knew or should have known that it had no legal basis to use the

White River 12 mark in connection with Defendant’s spirits or liquors. The filing of a federal

trademark application for a mark that matures into a registration creates a constructive first use

date, and therefore puts all others on notice on the owner’s priority of rights in the mark.

Defendant also should have been aware that Plaintiff filed an application for approval of its

liquor label using the Heritage 12 marks earlier than Defendant. Despite this knowledge,

Defendant willfully violated 15 U.S.C. § 1125(a).

35. As a result of Defendant’s willful Lanham Act violations, Plaintiff requests the

Court enter judgment for three times Plaintiff’s damages, together with reasonable attorney’s

fees pursuant to 15 U.S.C. § 1117(b).

Third Cause of Action – Unfair Competition (Washington Common Law)



37. Defendant’s conduct of marketing, distributing and selling its spirits and liquors

in connection with its White River 12 mark, which are colorable, confusing and deceptive







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variants of Plaintiff’s Heritage12 marks, are calculated to and are likely to confuse, deceive and

mislead the consuming public into believing that Defendant’s goods originate with, are

associated with, are authorized by, or are otherwise related to Plaintiff.

38. Plaintiff believes that Defendant, with full knowledge of the favorable notoriety,

acclaim and popularity of Plaintiff’s spirits and liquors sold both previously and currently in

connection with the Heritage 12 marks, intends to trade on the goodwill associated with

Plaintiff’s marks.

39. Defendant’s conduct constitutes unfair competition, palming off, unjust

enrichment, and misappropriation of rights and goodwill of Plaintiff and the Heritage12 marks

and, unless enjoined by this Court, will result in the unjust enrichment of Defendant.

40. For these reasons, the passing off spirits and liquors under the colorable,

confusingly and deceptively similar of variant the Heritage12 marks, unless enjoined has and

will continue to irreparably injure Plaintiff, and to damage Plaintiff in an amount to be proven at

trial.

Fourth Cause of Action – Washington State Consumer Protection Act (RCW 19.86)



42. Defendant has intentionally advertised and sold its spirits and liquors under the

White River 12 mark so as to pass off its goods as those of Plaintiff, to cause confusion and

deceive purchasers as to the source, sponsorship, approval or certification of, or the affiliation,

connection or association with Defendant’s goods, and to obtain the acceptance of Defendant’s

goods based on the reputation and goodwill of Plaintiff and its high quality goods sold in

connection with its Heritage 12 marks.

43. Defendant’s actions have and will continue to cause confusion, mistake and

deception among the purchasing public as to the source of Defendant’s goods. Further,







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Defendant’s actions are likely to deceive others into believing that Defendant’s spirits and

liquors are sponsored by, approved by, or affiliated with Plaintiff.

44. Defendant’s unauthorized use of marks that are confusingly similar to Plaintiff’s

registered marks constitutes an unfair or deceptive act or practice and an unfair method of

competition in the conduct of trade or commerce, which is and will be injurious to the public

interest, in violation of the Washington State Unfair Business Practices Consumer Protection

Act, RCW 19.86.020, et seq. This statute also applies to the present cause pursuant to the

principles of Nordstrom v. Tampourlos, 107 Wn.2d 735 (1987), which provides that unfair trade

name infringement violates the Washington State Unfair Business Practices Consumer

Protection Act.

45. As a result of these acts of infringement, deception, and unfair competition,

Plaintiff has and will continue to suffer great injury and damage in an amount to be proven at

trial. Plaintiff also will continue to suffer irreparable injury to its reputation and goodwill unless

restrained by this Court, which cannot be adequately remedied at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays this Court grant the following relief against Defendant:

1. For a preliminary and permanent injunction enjoining Defendant, its agents,

servants, employees, successors, and assigns, and all others acting in concert or participating

with it as follows:

a. From infringing Plaintiff’s registered Heritage 12 marks (U.S. Trademark

Registration Nos. 4,827,815 and 4,828,034) in violation of 15 U.S.C. § 1114 through the display

of any confusingly similar mark in connection with spirits or liquors by requiring the removal of

all such marks from Defendant’s signs, labels, products, vehicles, stationery, business cards,

invoices, packaging, containers, advertising, store and restaurant displays, uniforms,

merchandise, website, social media accounts or feeds, or any other business equipment or

marketing materials, or otherwise infringing Plaintiff’s registered trademarks;







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b. From falsely representing affiliation with Plaintiff and falsely designating

the origin of Defendant’s spirits and liquors in violation of 15 U.S.C. § 1125(a) through the

display of any confusingly similar mark in connection with spirits or liquors by requiring the

removal of all such marks from Defendant’s signs, labels, products, vehicles, stationery, business

cards, invoices, packaging, containers, advertising, store and restaurant displays, uniforms,

merchandise, website, social media accounts or feeds, or any other business equipment or

marketing materials, or otherwise falsely representing affiliation with Plaintiff or falsely

designating Plaintiff as the origin of Defendant’s goods;

c. From causing confusion, mistake and deception among the purchasing

public as to the source or affiliation of Defendant’s spirit and liquors in violation of the

Washington Consumer Protection Act through the display of any confusingly similar mark in

connection with spirits and liquors by requiring the removal of all such marks from Defendant’s

signs, labels, bottles, vehicles, stationery, business cards, invoices, packaging, containers,

advertising, store and restaurant displays, uniforms, merchandise, website, social media accounts

or feeds, or any other business equipment or marketing materials, or otherwise unfairly

competing with Plaintiff.

2. For an order directing Defendant to file with the Court and serve on Plaintiff an

affidavit setting forth in detail the manner and form in which Defendant has complied with the

terms of the injunction, in accordance with 15 U.S.C. § 1116.

3. For an order directing that Defendant account for and pay over to Plaintiff:

a. All profits derived by Defendant from its acts of trademark infringement

and unfair competition in accordance with 15 U.S.C. § 1117, 15 U.S.C. § 1125, and the laws of

the State of Washington;

b. Damages (including treble damages) by reason of Defendant’s acts of

infringement and competition in accordance with 15 U.S.C. § 1117, 15 U.S.C. § 1125, and the

laws of the State of Washington.







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4. That Plaintiff be awarded its reasonable attorney’s fees and costs pursuant to 15

U.S.C. § 1117 and RCW 19.86.090, or as otherwise provided by law; and

5. Such other further relief as the Court deems just and proper.

DATED this 15th

day of December, 2015.

MILLER NASH GRAHAM & DUNN LLP

By: s/Daniel J. Oates

Daniel J. Oates, WSBA# 39334

Email: [email protected]

Vanessa L. Wheeler, WSBA# 48205

Email: [email protected]

Attorneys for Plaintiff




Exhibit A




Exhibit B




Exhibit C




PTO Form 1478 (Rev 9/2006)

OMB No. 0651-0009 (Exp 12/31/2014)

Trademark/Service Mark Application, Principal Register

Serial Number: 86271980

Filing Date: 05/05/2014

The table below presents the data as entered.

Input Field Entered

SERIAL NUMBER 86271980

MARK INFORMATION

*MARK 12 SPIRITS

STANDARD CHARACTERS YES

USPTO-GENERATED IMAGE YES

LITERAL ELEMENT 12 SPIRITS

MARK STATEMENT

The mark consists of standard characters,

without claim to any particular font, style,

size, or color.

REGISTER Principal

APPLICANT INFORMATION

*OWNER OF MARK WHITE RIVER DISTILLERS, LLC

*STREET 25714 SE 400th Street

*CITY Enumclaw

*STATE

(Required for U.S. applicants)Washington

*COUNTRY United States

*ZIP/POSTAL CODE

(Required for U.S. applicants only)98022

LEGAL ENTITY INFORMATION

TYPE limited liability company

STATE/COUNTRY WHERE LEGALLY

ORGANIZEDWashington

GOODS AND/OR SERVICES AND BASIS INFORMATION

INTERNATIONAL CLASS 033


http://localhost/var/www/apps/conversion/tmp/APP0002.JPG



*IDENTIFICATION

ALCOHOLIC BEVERAGES, EXCEPT

BEER, NAMELY, WHISKEY, GIN,

VODKA AND DISTILLED SPIRITS

FILING BASIS SECTION 1(b)

ATTORNEY INFORMATION

NAME John S. Hale

ATTORNEY DOCKET NUMBER TMB-7774

FIRM NAME GIPPLE & HALE

STREET 6718 Whittier Avenue, Suite 200

CITY McLean

STATE Virginia

COUNTRY United States

ZIP/POSTAL CODE 22101

PHONE 7034481770 x301

FAX 7034487780

EMAIL ADDRESS [email protected]

AUTHORIZED TO COMMUNICATE VIA EMAIL Yes

CORRESPONDENCE INFORMATION

NAME John S. Hale

FIRM NAME GIPPLE & HALE

STREET 6718 Whittier Avenue, Suite 200

CITY McLean

STATE Virginia

COUNTRY United States

ZIP/POSTAL CODE 22101

PHONE

7034481770 x301

FAX 7034487780

EMAIL ADDRESS [email protected]

AUTHORIZED TO COMMUNICATE VIA EMAIL Yes

FEE INFORMATION

NUMBER OF CLASSES 1




FEE PER CLASS 325

*TOTAL FEE DUE 325

*TOTAL FEE PAID 325

SIGNATURE INFORMATION

SIGNATURE

/John S. Hale/

SIGNATORY'S NAME John S. Hale

SIGNATORY'S POSITION Attorney of record, Virginia bar member

DATE SIGNED 05/05/2014




PTO Form 1478 (Rev 9/2006)

OMB No. 0651-0009 (Exp 12/31/2014)

Trademark/Service Mark Application, Principal Register

Serial Number: 86271980Filing Date: 05/05/2014

To the Commissioner for Trademarks:

MARK: 12 SPIRITS (Standard Characters, see mark )

The literal element of the mark consists of 12 SPIRITS.

The mark consists of standard characters, without claim to any particular font, style, size, or color.

The applicant, WHITE RIVER DISTILLERS, LLC, a limited liability company legally organized under

the laws of Washington, having an address of

25714 SE 400th Street

Enumclaw, Washington 98022 United States

requests registration of the trademark/service mark identified above in the United States Patent and

Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051

et seq.), as amended, for the following:

International Class 033: ALCOHOLIC BEVERAGES, EXCEPT BEER, NAMELY, WHISKEY,

GIN, VODKA AND DISTILLED SPIRITS

Intent to Use: The applicant has a bona fide intention to use or use through the applicant's related company

or licensee the mark in commerce on or in connection with the identified goods and/or services. (15U.S.C. Section 1051(b)).

The applicant's current Attorney Information:

John S. Hale of GIPPLE & HALE

6718 Whittier Avenue, Suite 200

McLean, Virginia 22101

United States

The attorney docket/reference number is TMB-7774.

The applicant's current Correspondence Information:

John S. Hale

GIPPLE & HALE

6718 Whittier Avenue, Suite 200

McLean, Virginia 22101

7034481770 x301(phone)

7034487780(fax)

[email protected] (authorized)


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A fee payment in the amount of $325 has been submitted with the application, representing payment for 1class(es).

Declaration

The signatory believes that: if the applicant is filing the application under 15 U.S.C. Section 1051(a), theapplicant is the owner of the trademark/service mark sought to be registered; the applicant or the

applicant's related company or licensee is using the mark in commerce on or in connection with thegoods/services in the application, and such use by the applicant's related company or licensee inures to thebenefit of the applicant; the specimen(s) shows the mark as used on or in connection with the

goods/services in the application; and/or if the applicant filed an application under 15 U.S.C. Section1051(b), Section 1126(d), and/or Section 1126(e), the applicant is entitled to use the mark in commerce;the applicant has a bona fide intention to use or use through the applicant's related company or licensee the

mark in commerce on or in connection with the goods/services in the application. The signatory believesthat to the best of the signatory's knowledge and belief, no other person has the right to use the mark in

commerce, either in the identical form or in such near resemblance as to be likely, when used on or inconnection with the goods/services of such other person, to cause confusion or mistake, or to deceive. The

signatory being warned that willful false statements and the like are punishable by fine or imprisonment,

or both, under 18 U.S.C. Section 1001, and that such willful false statements and the like may jeopardizethe validity of the application or any registration resulting therefrom, declares that all statements made of

his/her own knowledge are true and all statements made on information and belief are believed to be true.

Declaration Signature

Signature: /John S. Hale/ Date: 05/05/2014

Signatory's Name: John S. HaleSignatory's Position: Attorney of record, Virginia bar member

RAM Sale Number: 86271980RAM Accounting Date: 05/06/2014

Serial Number: 86271980Internet Transmission Date: Mon May 05 16:43:46 EDT 2014

TEAS Stamp: USPTO/BAS-XXX.XXX.XXX.XXX-20140505164346164445-86271980-5001fda941b92abdfeaf1839

2a2ff4afd399f9d8fa430aaa2b86ec9921319b57c70-CC-3845-20140505164029236238


heritage distilling - 12 trademark complaint.pdf

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