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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
Candyland, Inc.,
Plaintiff,
vs.
CaramelCrisp, LLC, d/b/a
Garrett Popcorn Shops,
Defendant.
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Case No. ____________________
COMPLAINT
(Jury Trial Demanded)
Plaintiff Candyland, Inc. (Candyland), for its Complaint against Defendant
CaramelCrisp, LLC, d/b/a Garrett Popcorn Shops (Garrett), alleges as follows:
PARTIES
1. Candyland is a Minnesota corporation having a principal place of business
in St. Paul, Minnesota.
2. Upon information and belief, Garrett is a Delaware limited liability
company with a principal place of business in Chicago, Illinois.
JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction over the claims asserted in this
action pursuant to 15 U.S.C. 1121(a) and 28 U.S.C. 1331, 1338, and 1367. The
claims alleged in this Complaint arise under the Lanham Act, 15 U.S.C. 1051, et seq.,
Minn. Stat 325D.44, et seq., and Minnesota Common Law.
4. This Court has personal jurisdiction over Garrett because Garret does
significant business in the State of Minnesota.
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5. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b)(1) and (c)(2).
FACTS
Candylands CHICAGO MIX Popcorn
6. Candyland is a small-family owned business that has been in business for
over 80 years and specializes in the sale of high-quality popcorn, candy and fine
chocolates.
7. Candylands popcorn comes in a variety of flavors and is popped fresh,
hand-stirred, and bagged every day.
8. Candyland is the owner of federal trademark Registration No. 1,713,984 for
the trademark CHICAGO MIX for use in connection with flavored popcorn.
9. Specifically, Candyland uses its CHICAGO MIX mark in connection
with its combination of traditional seasoned popcorn mixed with caramel and cheddar
flavored popcorns. Candylands CHICAGO MIX popcorn is one of the companys
best sellers.
10. For over two decades, Candyland has been continually and exclusively
using the CHICAGO MIX mark nationwide in interstate commerce to identify its goods
and distinguish its goods from those made and sold by others.
11. Due to the continual use of the CHICAGO MIX mark by Candyland, the
mark has acquired secondary meaning as indicating a single source of Candylands
goods. The CHICAGO MIX mark has further come to indicate Candyland as the single
source of such quality goods.
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12. Candyland has expended considerable time, resources, and effort in
promoting the CHICAGO MIX mark and developing substantial goodwill associated
therewith.
13. The CHICAGO MIX mark is an extremely important asset to Candyland
and Candyland has enforced the mark against infringers and potential infringers.
Garretts Infringing CHICAGO MIX Popcorn
14. Upon information and belief, Garrett is a business specializing in the
production of popped popcorn products.
15. Upon information and belief, Garrett sells its flavored popcorn globally.
Garrett has several stores in Chicago, including one at OHare International Airport.
Garett also has stores in New York, Las Vegas, and several international locations. In
addition, Garrett takes orders through its website at www.garrettpopcorn.com and by
phone.
16. Upon information and belief, Garretts line of popped popcorn consists of a
variety of flavors, including a blend of Garretts CaramelCrisp and CheeseCorn
recipes, which Garrett refers to as CHICAGO MIX. According to Garretts website,
the CHICAGO MIX is Garretts most popular flavor and a consistent favorite
throughout [Garretts] entire fan base.
17. The CHICAGO MIX mark used in connection with Garretts flavored
popcorn is identical to Candylands CHICAGO MIX mark.
18. Without Candylands permission, authorization, approval or consent, and
with actual knowledge of Candylands prior rights in its CHICAGO MIX trademark,
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Garrett commenced use of the confusingly similar CHICAGO MIX mark in connection
with flavored popcorn.
19. Garretts use of the CHICAGO MIX mark in connection with its flavored
popcorn is likely to cause confusion, mistake, or deception. Consumers have and are
likely to continue to mistakenly believe that the flavored popcorn Garrett offers as
CHICAGO MIX is sponsored, endorsed, or approved by Candyland, or is in some
other way affiliated, connected, or associated with Candyland, all to the detriment of
Candyland.
20. Upon information and belief, Candyland and Garrett target the same class
of consumer.
21. Upon information and belief, Garrett markets its CHICAGO MIX
popcorn in the same channels of trade used by Candyland to market its CHICAGO
MIX flavored popcorn.
22. Candyland has demanded that Garrett cease all use of the CHICAGO
MIX mark in connection with Garretts sale of flavored popcorn, but Garrett has not
done so. Despite Candylands objection, Garrett continues to use the identical and
confusingly similar CHICAGO MIX mark in connection with closely related products.
23. Upon information and belief, Garrett intentionally adopted the confusingly
similar CHICAGO MIX mark and incorporated it in order to trade off the goodwill
Candyland has created in its CHICAGO MIX mark.
CASE 0:14-cv-03122-PJS-FLN Document 5 Filed 08/07/14 Page 4 of 10
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COUNT I
(Trademark Infringement of a Registered Mark)
(Lanham Act 32, 15 U.S.C. 1114)
24. Candyland restates and incorporates by reference the allegations in the
previous paragraphs of this Complaint.
25. Garretts unauthorized use of the CHICAGO MIX mark in connection
with flavored popcorn is likely to cause confusion, cause mistake, or to deceive as to the
affiliation, connection, or association of Garrett with Candyland, or as to the origin,
sponsorship, or approval of Garretts popcorn products by Candyland. This unauthorized
use of CHICAGO MIX constitutes trademark infringement under 15 U.S.C. 1114.
26. Garretts unlawful actions have caused, and will continue to cause,
Candyland irreparable harm unless enjoined.
27. Garrett has profited from its unlawful actions and has been unjustly
enriched to the detriment of Candyland. Garretts unlawful actions have caused
Candyland monetary damage in an amount presently unknown, but in an amount to be
determined at trial.
COUNT II
(Federal Unfair Competition)
(Lanham Act 43(a), 15 U.S.C. 1125(a))
28. Candyland restates and incorporates by reference the allegations in the
previous paragraphs of this Complaint.
29. Garretts unauthorized use of CHICAGO MIX in connection with
flavored popcorn is a false designation of origin, false or misleading description of fact,
and a false or misleading representation of fact.
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30. Garretts unauthorized use of CHICAGO MIX in connection with
flavored popcorn is likely to cause confusion, or to cause mistake, or to deceive as to the
affiliation, connection, or association of Garrett with Candyland, or as to the origin,
sponsorship, or approval of Garretts flavored popcorn or commercial activities by
Candyland.
31. Garretts unlawful actions have caused, and will continue to cause,
Candyland irreparable harm unless enjoined.
32. Garrett has profited from its unlawful actions and has been unjustly
enriched to the detriment of Candyland. Garretts unlawful actions have caused
Candyland monetary damage in an amount presently unknown, but in an amount to be
determined at trial.
COUNT III
(Minnesota Deceptive Trade Practices Act)
(Minn. Stat. 325D.44, et seq.)
33. Candyland restates and incorporates by reference the allegations in the
previous paragraphs of this Complaint.
34. Garretts unauthorized use of the CHICAGO MIX mark in connection
with flavored popcorn is likely to cause confusion, or to cause mistake, or to deceive as to
the affiliation, connection, or association of Garrett with Candyland, or as to the origin,
sponsorship, or approval of Garretts flavored popcorn or commercial activities by
Candyland and constitutes unfair and deceptive trade practices under the Deceptive Trade
Practices Act of the State of Minnesota.
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35. Garretts unlawful actions have caused, and will continue to cause,
Candyland irreparable harm unless enjoined.
36. Garrett has profited from its unlawful actions and has been unjustly
enriched to the detriment of Candyland. Garretts unlawful actions have caused
Candyland monetary damage in an amount presently unknown, but in an amount to be
determined at trial.
COUNT IV
(Common Law Unfair Competition)
37. Candyland restates and incorporates by reference the allegations in the
previous paragraphs of this Complaint.
38. Garretts unauthorized use of the CHICAGO MIX mark in connection
with flavored popcorn is likely to cause confusion, or to cause mistake, or to deceive as to
the affiliation, connection, or association of Garrett with Candyland, or as to the origin,
sponsorship, or approval of Garretts flavored popcorn or commercial activities by
Candyland and constitutes common law unfair competition under Minnesota state law.
39. Garretts unlawful actions have caused, and will continue to cause,
Candyland irreparable harm unless enjoined.
40. Garrett has profited from its unlawful actions and has been unjustly
enriched to the detriment of Candyland. Garretts unlawful actions have caused
Candyland monetary damage in an amount presently unknown, but in an amount to be
determined at trial.
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CONCLUSION
WHEREFORE, Candyland prays that the Court enter judgment:
1. In favor of Candyland and against Garrett on all of Candylands claims;
2. Permanently enjoining and restraining Garrett, its parent company,
subsidiaries, affiliates, sister companies, officers, agents, servants, employees, attorneys,
and all others in active concert or participation with Garrett from:
A. Using the mark CHICAGO MIX or any confusingly similar
designation alone or in combination with other words or designs, as a trademark,
trade name component or otherwise, to market, advertise, or identify goods and
services not produced or authorized by Candyland;
B. Unfairly competing with Candyland in any manner whatsoever;
C. Causing likelihood of confusion or injury to business reputation of
the distinctiveness of Candylands CHICAGO MIX mark; and
D. Committing any other act that infringes Candylands CHICAGO
MIX mark or constitutes an act of trademark or service mark infringement,
contributory infringement, or unfair competition under federal common law or
Minnesota state law.
3. Requiring Garrett to deliver up, or cause to be delivered up, for destruction
all labels, signs, prints, packages, wrappers, receptacles, advertisements, and all other
materials in Garretts possession or control that infringe Candylands CHICAGO MIX
mark;
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4. Requiring Garrett to account for and pay over to Candyland the amount of
Candylands damages pursuant to 15 U.S.C. 1117;
5. Requiring Garrett to account for and pay over to Candyland the amount of
Garretts profits pursuant to 15 U.S.C. 1117;
6. Requiring Garrett to account for and pay over to Candyland the costs of the
action pursuant to 15 U.S.C. 1117;
7. Finding this case is exceptional and trebling any damage award pursuant to
15 U.S.C. 1117;
8. Finding this case is exceptional and requiring Garrett to pay over to
Candyland its attorneys fees incurred in connection with this case pursuant to 15 U.S.C.
1117;
9. Requiring Garrett to account for and pay over to Candyland the amount of
Candylands damages, together with costs and disbursements, including costs of
investigation and reasonable attorneys fees;
10. Requiring Garrett to pay Candyland pre- and post- judgment interest,
pursuant to Minn. Stat. 549.09; and
11. Awarding Candyland such other relief as the Court may deem just and
equitable.
CASE 0:14-cv-03122-PJS-FLN Document 5 Filed 08/07/14 Page 9 of 10
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Respectfully submitted,
WINTHROP & WEINSTINE, P.A.
Dated: August 7, 2014 s/David A. Davenport
David A. Davenport, #285109
Erin O. Dungan, #386430
3500 Capella Tower
225 South Sixth Street
Minneapolis, MN 55402
Tel: (612) 604-6400
Fax: (612) 604-6800
E-Mail: ddavenport@winthrop.com
edungan@winthrop.com
Attorneys for Plaintiff Candyland, Inc.
9377112v1
CASE 0:14-cv-03122-PJS-FLN Document 5 Filed 08/07/14 Page 10 of 10
J S 44 (Rev. 12/12)
CIVIL COVER SHEET
The J S 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by theJ udicial Conference of the United States inSeptember 1974, is required for the use of the Clerk of Court for the
purpose of initiating thecivil docket sheet. (SEE INSl1WC110NS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
Candyland, Inc.
(b) County of Residence of First Listed Plaintiff Rgm ~Y.C:::Ql1nty._ ~_ ._ ._ ._ .
(EXCEPTIN u.s PLAIN11I'7" CASES)
(c) Attorneys (Firm Name. Address, and Telephone Number)
Winthrop &Weinstine, PA, 3500 Capella Tower, 225 South Sixth Street,
Minneapolis, MN 55402 (612) 604-6400
Attorneys (If Known}
DEFENDANTS
CaramelCrisp, LLC, d/b/a Garrett Popcorn Shops
County of Residence of First Listed Defendant _ Cook CQJ lntY,jJ llIlQil? _
(IN US PLAIN17FF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
(For Diversity Cases Only)
PTF DEF
and One Box jar Defendant)
PTF DEF
II. BASIS OF J URISDICTION (Place an "X" in One Box Only)
0 I u.s. Government ~3 Federal Question
Plaintiff (US. Government Not a Party)
02 U.S. Government 04 Diversity
Defendant (Indicate Citizenship a/Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X" in One Box jar Plaintiff
o I 0 I Incorporated or Principal Place
of Business In This State
o 4 04 Citizen of This State
o 2 0 2 Incorporated and Principal Place
of Business In Another State
o 5 05 Citizen of Another State
Citizen or Subject of a
Forcian Country
o 3 0 3 Foreign Nation o 6 06
IV. NATURE OF SUIT (Place an "X" in One Box Only)
120Marine
130Miller Act
o422 Appeal 28USC 158
o423 Withdrawal
28 USC 157
PERSONAL INJ URY
o310 Airplane
o315 Airplane Product
Liability
o320 Assault, Libel &
Slander
o330 Federal Employers'
Liability
o340 Marine
o345 Marine Product
Liability
o350 Motor Vehicle 0 370 Other Fraud Act
o355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management
Product Liability 0 380 Other Personal Relations
o360 Other Personal Property Damage 0 740 Railway Labor Act
Injury 0 385 Property Damage 0 751 Family and Medical
o362 Personal Injury - Product Liability Leave Act
Medical Malpractice 0 790 Other Labor Litigation
l!iMfNW0iiREAt}!PROlfERTYlliiiirJ i; vi! 'iyl!iiil,6LWliiRJ GFl'fS]I!:iiliii%iM MRRlSO'i''''l{\RETI!J !IONSMii 0 791 Employee Retirement
o210 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: Income Security Act
o220 Foreclosure 0 441 Voting 0 463 Alien Detainee
o230 Rent Lease &Ejectment 0442 Employment 0 510 Motions to Vacate
o240 Torts to Land 0 443 Housing! Sentence
o245 Tort Product Liability Accommodations 0 530 General
o290 All Other Real Prope.., ~ u ~<"- Penalty
Other:
o540 Mandamus &Other
o550 Civil Rights
o555 Prison Condition
o560 Civil Detainee -
Conditions of
Confinement
o 110Insurance
o
o
o
o
140Negotiable Instrument
150Recovery of Overpayment
&Enforcement of J udgment
o 151Medicare Act
o
PERSONAL INJ URY
o365 Personal Injury -
Product Liability
o367 Health Carel
Pharmaceutical
Personal Injury
Product Liability
o 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY 0 710 Fair Labor Standards
Act/Review or Appeal of
Agency Decision
o 950 Constitutionality of
State Statutes
152Recovery of Defaulted
Student Loans
(Excludes Veterans)
o153Recovery of Overpayment
of Veteran's Benefits
o160Stockholders' Suits
o 190Other Contract
o
o
195Contract Product Liability
196Franchise
Employment
o446 Amer. w/Disabilities -
Other
o448 Education
o 375 False Claims Act
o 400 State Reapportionment
o410 Antitrust
o 430 Banks and Banking
"'\l"'iif"'ij1P"',R"'tU=,""IIl"'E"'R"';mv;==,"'iiR"''''IN''',,'''H'''"" "' "N"' f i; "' q "' \ j\ m.W 0 450 Commerce
o820 Copyrights 0 460 Deportation
o 830 Patent 0 470 Racketeer Influenced and
M 840 Trademark Corrupt Organizations
o 480 Consumer Credit
~ ~~ml II~~~mlmiB1:m ~0 490 Cable/Sat TV
o861 HIA (1395fl) 0 850 Securities/Commodities/
o862 Black Lung (923) Exchange
o863 DIWC/DIWW (405(g)) 0 890 Other Statutory Actions
o 864 ssmTitle XVI 0 891 Agricultural Acts
o865 RSI (405(g)) 0 893 Environmental Matters
o
o625 Drug Related Seizure
of Property 21 USC 881
o690 Other
895 Freedom oflnformation
Act
o 896 Arbitration
1-,';"-?,,'"::.iF"'E==J j"'E"'R"'1\"'I.;"'.,:r"',"':A."'iX"'{S"'Ul"''''T''"S''";''">.",;!';j: 0 899 Administrative Procedure
o870 Taxes (U.S. Plaintiff
or Defendant)
o871 IRS-Third Party
26 USC 7609
o462 Naturalization Application
o465 Other Immigration
Actions
V. 0RI GIN (Place an "X" in One Box Only)
)!l( 1 Original 0 2 Removed from
Proceeding State Court
o 3 Remanded from
Appellate Court
o4 Reinstated or
Reopened
o 5 Transferred from
Another District
(specify)
o 6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you arc filing (Donot citejurisdictionalstatutesunlessdiversity}:
VI. CAUSE OF ACTION t-1_ 5_ U_ ._ S_ .C_ . = _ 1_ 05_ 1_ e_ t_ s_ eq ~. _
Brief description of cause:
Trademark Inf ringement
VII. REQUESTED IN
COMPLAINT:
o CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.
DEMAND $ CHECK YES only if demanded incomplaint:
J URY DEMAND: )g Yes 0 No
VIII. RELATED CASE(S)
IFANY
J UDGE
DOCKET NUMBER 0: 14-cv-03119-RH K-FLN Hon. Richard H. Kyle
----------- ...~-~------
(See instructions):
DATE
08/07/2014
FOR OFFICE USE ONLY
SIGNATURE OF ATTORNEY OF RECORD
s/David Davenport
RECEIPT # AMOUNT APPLYING IFP J UDGE MAG. J UDGE
CASE 0:14-cv-03122-PJS-FLN Document 5-1 Filed 08/07/14 Page 1 of 1