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ARCHER NORRIS
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iyoo(5)archernorris.com
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Plaintiff,
v.
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VU,-02242
COMPLAINT FOR:
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EASTERN DIVISION
INFRINGEMENT;
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Defendants.
INFRINGEMENT;
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UNFAIR COMPETITION
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"Defendants") as follows:
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P\RTIES
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1.
K0123019/1929756-2
mm.
and incorporated under the laws of Caliifornia, with its principal place of business at
defendant The King Taco, and is doing business under the name "The King Taco."
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THE KING TACO ("Defendant TKT") is a business entity of unknown form and/or
origin that operates restaurant businesses at 900 N. Mt. Vernon Ave., San
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th
Bernardino, CA 92411 and 1042 W. 5 St., San Bernardino, CA 92411.
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sued herein as DOES 1 through 10 and: therefore, sues these defendants by such
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fictitious names. Plaintiff will amend tlis Complaint to allege the true names and
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and thereon alleges, that each ofthe fictitiously named defendants DOES 1through
10, inclusive, caused and participated i:i each ofthe acts and omissions of each of
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the named defendants herein alleged, aid in doing so, acted as the agent, employee
and/or co-conspirator of said defendants, and acted within the scope and in
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5.
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agent, principal, joint venturer, and/or so-conspirator ofthe other defendants and
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each is jointly and severally liable for he acts and omissions of all ofthe other
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named defendants.
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6.
Plaintiff is informed and believes, and thereon alleges, that there exists
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and, at all times herein mentioned, existed aunity of interest and ownership
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between Defendant Tabares and Defendant TKT such that any individuality and
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separateness between the Defendants lias ceased, and that Defendant TKT is the
alter ego ofDefendant Tabares. Plaintiff alleges, on information and belief, that
COMPLAINT
K0123019/1929756-2
Defendant TKT is and, at all times herein mentioned, was a mere shell,
ofDefendant TKT and Defendant Tabs res does not and, at all times mentioned
here, did not exist. Moreover, Plaintiff alleges, on information and belief, that
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Defendant Tabares used assets ofDefendant TKT for his personal uses, caused
assets ofDefendant TKT to be transfer red to him without adequate consideration,
and/or withdrew funds from Defendant TKT's bank accounts for his personal use.
JURISDICTION AND VENUE
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7.
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questions arising under particular federal statutes, including the Federal Trademark
Act (the "Lanham Act") as amended ir. 15 U.S.C. 1051 etseq., and the Unfair
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Competition Act under 15 U.S.C. 1125 et seq. This Court has subject matter
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jurisdiction of this action pursuant to 28 U.S.C 1331 and 1338, and 15 U.S.C.
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1121.
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8.
To the extent this Comprint claims for relief under California state
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law and common law, those claims an specifically authorized to be brought in this
Court under the supplemental jurisdiction provision of28 U.S.C 1367 and under
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28 U.S.C. 1338.
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9.
The Court has personal jurisdiction over the Defendants as Defendant
Tabares is a resident ofCalifornia, Defendants conduct business in California, and
Defendants are intentionally infringing upon trademarks registered by Plaintiff, a
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California corporation.
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10.
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regularly conducts business at 900 N. Mt. Vernon Ave., San Bernardino, CA 92411
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COMPLAINT
GENERAL ALLEGATIONS
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grown to become a well-known and highly regarded restaurant chain and distributor
of authentic Mexican foods. While Kin g Taco's restaurants are located in
Taco" and "King Taco Restaurant, Inc. trade and service marks and because of
As
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restaurants and food services are well known and its trade and service marks are
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public. The King Taco Website clearlj denotes Plaintiffs ownership of the King
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below.
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the word mark "King Taco" with the linked States Patent and Trademark Office
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("USPTO"). On May 4, 2004, the USPTO registered Plaintiffs "King Taco" word
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mark on the Principal Register with re istration number, 2,838,200, for restaurant,
take-out restaurant services in Class (K3 . A true and correct copy of the registration
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14.
To further identify its "Kinig Taco" brand, King Taco uses a trademark
COMPLAINT
connection with its popular restaurants and Mexican food products. On June 15,
2004, the USPTO registered Plaintiffs King Taco stylized design mark on the
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filed
stylized word mark "King Taco Restaurants , Inc." with the USPTO. On May 4,
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2004, the USPTO registered King Taco 's "King Taco Restaurants, Inc." stylized
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word mark on the Principal Register with registration number, 2,838,199, for
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restaurant, take-out restaurant services in Class 043. A true and correct copy of the
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King Taco has continuou sly used its "King Taco" word mark
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(Registration No. 2,838,200), "King Taco" stylized design mark (Registration No.
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2,853,050), and "King Taco Restauran ;s, Inc." stylized word mark (Registration
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offered by other companies, by, and w thout limitation, prominently displaying said
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and advertising its King Taco Tradeim rks throughout NASCAR and other motor
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Taco
materials
as well as
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17.
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and unrevoked.
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K0123019/1929756-2
COMPLAINT
18.
King Taco takes great effdrt to protect the King Taco Trademarks. It
has obtained permanent injunctions precluding infringing use of the King Taco
Trademarks from the United States District Court for the Central District of
California (Case No. SACV 12-00933- CJC(ANx)); the United States District Court
for the Eastern District of New York (Cf ase No. 1l-CV-5428 (SLT) (JO)); the
United States District Court for the District of Massachusetts (Case No. 1:12-CV-
King Taco has also secured a judgment against a prior infringer from the United
States District Court for the District of Nevada (Case No. 2:08-cv-00281-LRH-
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PAL).
DEFEND ANTS' IF FRINGING CONDUCT
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19.
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Defendants own and/or operate two Mexican food restaurants under the infringing
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name "The King Taco" at or near 900 I. Mt. Vernon Ave., San Bernardino, CA
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9241 land 1042 W. 5th St., San Bernardino, CA 92411. King Taco is further
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informed and believes, and thereon alleges,, that Defendants use the infringing name
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"The King Taco" to sell, offer for sale, promote, and advertise take-out Mexican
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food.
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and other marketing materials that the)' prominently display around their restaurant
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Defendants to use the King Taco Trademarks to promote their infringing business.
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Defendants' use of the King Taco Trademarks is likely to cause confusion and
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mistake among consumers and to deceive consumers as to the source, quality, and
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services.
COMPLAINT
decided to adopt the infringing name "The King Taco" in conscious disregard of
advising them of their infringing conduct and demanding that they cease further
infringing use of the confusingly similar "The King Taco" mark. Defendants did
not cease such infringing conduct. Instead, in blatant disregard of King Taco's
rights, Defendants refused to cease thei: infringing conduct and continue to use and
promote their business with the confusingly similar "The King Taco" mark to this
day.
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24.
King Taco incorporates by this reference each and every allegation set
forth above in paragraphs 1 through 23. inclusive, as though fully stated herein.
25.
King Taco is the legal oWner of the King Taco Trademarks, has not
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abandoned any of the King Taco Trademarks since their first use, and all of the
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King Taco Trademarks have been, ind continue to be, in continuous use in
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26.
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services. Defendants' use of the Kiiig Taco Trademarks also likely creates the
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misconception among consumers that King Taco somehow ratifies or authorizes the
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Defendants' infringing use of the King Taco Trademarks and/or that King Taco is
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affiliated in some manner with the Defendants' business, when such is not the case.
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27.
King Taco never gave Dsfendants permission to use the King Taco
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Trademarks and King Taco, as owner of the King Taco Trademarks, objects to
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Defendants' past, and continued, infringing use of the King Taco Trademarks.
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28.
K0123019/1929756-2
COMPLAINT
prevents King Taco from exercising exclusive control over its intellectual property
promote, and/or sell through their infringing use of the King Taco Trademarks,
King Taco lacks an adequate remedy al law. Unless a temporary restraining order,
from any continuing or future infringi g use of the King Taco Trademarks, King
Taco will continue to sustain irreparablfe damage. Indeed, Defendants have already
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proven themselves to be willful infrin gers who have complete disregard of the
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Taco is entitled to an order enjoining Defendants, and each of them, from using the
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services.
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29.
continued
Taco .
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detailed herein, and to an order awardjng all damages sustained by King Taco by
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Defendants' infringing
arid
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rights.
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31.
entitled
Defendants' intentional
acts
U.S.C. 1117(a) and King Taco is entitled to an award of attorneys' fees and costs.
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K0123019/1929756-2
COMPLAINT
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32.
King Taco incorporates by this reference each and every allegation set
forth above in paragraphs 1 through 31, inclusive, as though fully stated herein,
33.
King Taco is the legal owner of the King Taco Trademarks. King
Taco has not abandoned any of the Kin Taco Trademarks since their first use, and
Trademarks, Defendants, and each of thlem have made, and continue to make, use
been ,
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34.
Defendants' unauthorized
Defendants' unauthorized
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use of the King Taco Trademarks als^ tends to cause confusion, mistake, and/or
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practices, false advertising, and unfair competition by using the King Taco
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Trademarks, associated goodwill, and cither intangible rights of King Taco without
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sponsored by, and/or affiliated with Kinj:g Taco, when such is not the case.
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36.
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false
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proofat trial, to a temporary, preliminaify , and permanent injunction, and to any and
KOI 23019/1929756-2
and
COMPLAINT
all other relief the Court deems just and proper under the law.
38.
ratifies, participates in, and is the movir g force behind the infringing activity, and is
39.
King Taco incorporates by this reference each and every allegation set
forth above in paragraphs 1 through 38, inclusive, as though fully stated herein.
40.
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associate and recognize the King Taco rademarks as representing products and
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services offered by King Taco, and therefore the King Taco Trademarks are
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41.
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The King Taco Trademark^ are the proprietary property of King Taco,
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which owns and enjoys common law trademark rights in the overall commercial
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impression and presentations of its Kinis; Taco Trademarks, which rights are
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superior to any rights that Defendants may claim as to their use of the name, "The
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King Taco." The King Taco Trademarks have become and are distinctive in the
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minds of consumers in that the King Ta<.co Trademarks are associated with King
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Taco.
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42.
Defendants' unauthorized
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Taco Trademarks, by offering Mexican food under the confusingly similar name,
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43.
connsion,
Taco has suffered, and will continue to suffer, irreparable injury to its rights, and
K0123019/1929756-2
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COMPLAINT
suffer substantial loss of goodwill and iin the value of its King Taco Trademarks
unless and until Defendants are enjoined from continuing their wrongful acts,
44.
restraining order, preliminary injunction and permanent injunction; and to any and
all other relief the Court deems just and proper under the law.
45.
King Taco's rights in its King Taco Trademarks, justifying an award of punitive
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participates in, and is the moving force behind the infringing activity, and is
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California Common
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47.
King Taco incorporates by this reference each and every allegation set
forth above in paragraphs 1 through 46, inclusive, as though fully stated herein,
48.
owner
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King Taco Trademarks have been, and cjontinue to be, in continuous use. Despite
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permission.
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49.
Trademarks
mace
Defendants' unauthorized
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confusingly similar variations thereof in connection with the sale of their competing
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an I
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COMPLAINT
deception on the part of the public as to their affiliation, connection, and association
with King Taco, and to cause confusion mistake, and deception as to the source,
50.
sell their goods and services, intentionally have caused and will cause confusion
among the purchasing public in this Dis rict and elsewhere, thereby engaging in
51.
Tradsmarks
advertisin
ising,
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Taco's rights to the King Taco Trademarks and using them for their own benefit.
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willfully, maliciously, and with the devilous intent to cause confusion, mistake, and
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53.
its.
goodwill and unjustly enriched Defendants
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continue to cause, irreparable harm and injury to King Taco's business reputation
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and goodwill for which there is no adeq aate remedy at law. Defendants' acts have
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also caused, and unless enjoined, will continue to cause inevitable consumer
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confusion for which there is no adequati remedy at law. King Taco is therefore
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55.
aid services,
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harmed and is entitled to damages againlst all Defendants, and each of them, in an
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amount according to proof at trial, and t|o any and all other relief the Court deems
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COMPLAINT
56.
King Taco's rights in its King Taco Trademarks, justifying an award of punitive
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participates in, and is the moving force behind the infringing activity, and is
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58.
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King Taco incorporates by this reference each and every allegation set
forth above in paragraphs 1 through 57, inclusive, as though fully stated herein.
59.
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King Taco has built valuable goodwill in its King Taco Trademarks.
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Defendants' advertising, marketing promotion, offer for sale, and/or sale of their
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goods and services under the confusing,ly similar name, "The King Taco," is likely
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to and enables Defendants to improper!ly trade upon the goodwill of King Taco's
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business and confuse the public reg aming the connection or affiliation between
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sale of their goods and services under the name, "The King Taco," and attempts to
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pass off their business as being assbciated and/or affiliated with King Taco
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seq.
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61.
Defendants' wrongful use of the King Taco Trademarks was, and is,
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without the consent of King Taco, and has damaged King Taco's business
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13
COMPLAINT
was intended to cause such damage, loss and injury to King Taco.
62.
Defendants knew or by
exercise
that their advertising, marketing, promotion , offer for sale, and/or sale of goods and
services would cause confusion, mistake , or deception among consumers, and the
public.
63.
Defendants' goods and services, Defendants intended to and did induce, and intends
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64.
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injunctive relief.
PRAYER FOR RELIEF
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Taco
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A.
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against Defendants, and Does 1 through 10, inclusive, and each of them, as follows:
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acts
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Defendants' profits or gains of any kind from their acts of trademark infringement,
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unfair competition, deceptive business practices and false advertising; and further
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for an award that such acts were will nil and wanton, thereby justifying an award,
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C.
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COMPLAINT
D.
infringement of King Taco's trademarks pursuant to the Lanham Act, for an order
judgment.
Wll
E.
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1125(a).
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F.
CtS
false
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Defendants' profits or other ill-gotten g:ains of any kind from their acts of trademark
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infringement, unfair competition, decep ive business practices and false advertising.
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G.
in
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H.
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Defendants' profits or gains of any kin<fi from their acts of trademark infringement,
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COMPLAINT
J.
K.
L.
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Defendants' profits or gains of any kind from their acts of trademark infringement,
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M.
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N.
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engaged in unfair competition and deceit ive business practices and acts.
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and illegal business practices under California Business and Professions Code
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17200.
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P.
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Defendants, and each of them, and nheir agents, servants, employees, and all
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i.
Using
the
King
:hem from:
Taco
Trademarks
in
connection
with
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COMPLAINT
ii.
iii.
iv.
v.
vi.
services; and
vii.
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Causing likelihood
of confusion,
the source, nature, and/or quality of Defendants ' goods and services.
Q.
For an order directing the Defendants, and each of them, to file with
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this Court and serve on King Taco, within thirty (30) days after service of an
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injunction, a written report, signed undler oath, setting forth, in detail, the manner
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For an order awarding Kin Taco its costs and attorneys' fees incurred
R.
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S.
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T.
For an order awarding such other relief that the Court deems just and
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proper.
Dated:
ARCHER NORRIS
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del G. Green
Jihee J. Yoo
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K0123019/1929756-2
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COMPLAINT
1, Plaintiff hereby respectfully demands a trial by jury with respect to all issues and
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Dated:
ARCHER NORRIS
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. Green
Jihee J. Yoo
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KOI 23019/1929756-2
COMPLAINT
EXHIBIT "A"
Int. CI.: 43
SERVICE MARK
PRINCIPAL REG] STER
KING TACO
EXHIBIT "B"
Int. CI.: 43
Prior U.S. Cls.: 100 and 101
SERVICE MARK
PRINCIPAL REGISTER
ASSKOWN.
NC
EXHIBIT "C"
Int. CL: 43
SERVICE MA JIK
PRINCIPAL REG ISTER
9
RESTAURANTS, INC.
NC
SCANNED
CALIFORNIA
CI
DE :ENDANTS
GILBERTO TABARES
(e) Attorneys (Firm Name, Address and Telephone Number) If you are
representing yourself, provide the same information.
Gabriel G. Green
Plaintiff
O 2. U.S. Government
Citizen or
Subject of a
Foreign Country
Defendant
Foreign Nation
<3 1. Original
LJ 2 Removed from
Proceeding
LJ 3. Remanded from
State Court
Appellate Court
No
f~]
6. MultiDistrict
Litigation
District (Specify)
VI. CAUSE OF ACTION (Cite the U.S. Civil Statute underwhich you are filing and write a t rief statement of cause. Do not cite jurisdictional statutes unless diversity.)
15 USC 1051, et seq.; 15 USC 1125, et seq. Defendants have infringed jpon Plaintiffs trademarks.
OTHER STATUTES
Q 410 Antitrust
LI Rates/Etc.
| | 480Consumer Credit
490 Cable/Sat TV
893 Environmental
Matters
150 Recovery of
Overpayment &
I | 310 Airplane
I Defaulted Student
I I Overpayment of
190 Other
Contract
195 Contract
Product Liability
196 Franchise
REAL PROPERTY
Ejectment
465 C ther
Immic ration Actions
ORTS
PERSON AL PROPERTY
11
Liability
nII 422
use
158
Injury
. 362 Personal Injury-
CIV L RIGHTS
Other:
| | 540 Mandamus/Other
Voting
mployment
D443 Mousing/
D445
Acco Timodations
1 imerican with
Disahilities-
I I 448 Ifducation
861 HIA(1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405 (g))
664 SSID Title XVI
865 RSI (405 (g))
Confinement
Defendant)
FORFEITURE/PENALTY
| | 690Other
LABOR
720 Labor/Mgmt.
Relations
Emp oyment
Product Liability
I I 820 Copyrights
L~] 830 Patent
D 441
442
!Personal Injury
| | 530 General
[~] 535 Death Penalty
fippeal 28
BAh KRUPTCY
Withdrawal 28
n423
"J
USC 57
I I Med Malpratice
I| 365 Personal InjuryI I Product Liability
Habeas Corpus:
I I Conditions of
I I 950 Constitutionality of
Application
| | 340 Marine
L Vet. Benefits
I] 160Stockholders'
L-J Suits
315 Airplane
Product Liability
Slander
PROPERTY RIGHTS
PRISONER PETITIONS
IMM GRATION
462 N aturalization
Property
TORTS
PERSONAL INJURY
152 Recovery of
Liability
Enforcement of
Judgment
Act
I | 896 Arbitration
Instrument
| | 460 Deportation
140 Negotiable
Leave Act
t
1Litigation
1791
791 Employee
Empk
Ret. Inc..
Security Act
Case Number:
CV-71 (10/14)
Jkz*
OCT 3 1 20M!
7609
VIII. VENUE: Your answers to thequestions below will determine thedivision ofthe Court
Yes
E] No
Western
I I Orange
Southern
Eastern
Yes
wmr
IEI No
B.2. Do 50% or more of the defendants who resde
in
QUESTION C: Is the United States, or C.1. Do 50% or more of the plaintiffs who reside
district reside in Orange Co.?
one of its agencies or employees, a
Yes
from there.
in the
^^r
No
in the
from there.
""^
NO. Your case will initially be assigned to the Western Division.
Orange County
Indicate the location(s) in which 50% or more of plaintiffs who reside in this district
reside. (Check up to two boxes, or leave blank if none of these choices apply.)
Indicate the location(s) in which 50% or more of defendants who reside in this
district reside. (Check up to two boxes, or leave blank if none of these choices
app'y)
.
D.1. Is there at least one answer in Column A?
Bernardino County
Yes [3 No
E3 Yes
O No
SOUTHERN DIVISION.
B.
Riverside or San
m^p
Do 50% or more of plaintiffs or defendants in this district reside in Ventura, Santa Barliara, or San Luis Obispo counties?
CV-71 (10/14)
D Yes
E3 No
Page 2 of 3
NO
YES
IE! NO
YES
IX(b). RELATED CASES: Is this case related(as defined below) to any civil or criminal case(s) previously filed in this court?
LH A. Arise from the same or a closely related transaction, happen ng, or event;
[Zl B. Call for determination of the same or substantially related or similar questions of law and fact;
HI C. For other reasons would entail substantial duplication of labor f heard by different judges.
or
Note: That cases may involve the same patent, trademark, or copyright is lot, in itself, sufficient to deem cases related.
A civil forfeiture case and a criminal case are related when they (check all it at;apply):
f~| A. Arise from the same or a closely related transaction, happen rig. or event;
LH B. Call for determination of the same or substantially related or simililar questions of law
and fact; or
HI C. Involve one or more defendants from the criminal case in common and would entail substantial duplication of
labor if heard by different judges
X. SIGNATURE OF ATTORNEY
DATE:
10/31/2014
Notice to Counsel/Parties: The submission of this Civil Cover Sheet is required by Local Rule 3-1. This Form CV-71 and the information contained
herein neither replaces nor supplements the filing and service of pleadings or othe papers as required by law, except as provided by local rules of
court. For more detailed instructions, see separate instruction sheet (CV-071A).
HIA
862
BL
All claims for "Black Lung" benefits under Tit e 4, Part B, of the Federal Coal Mine Health and Safety Act of 1969. (30
U.S.C. 923)
863
DIWC
863
DIWW
864
SSID
865
Abbreviation
RSI
All claims filed by insured workers for disabil ly insurance benefits under Title 2 of the Social Security Act, as amended;
plus all claims filed for child's insurance benefits based on disability. (42 U.S.C. 405 (g))
All claims filed for widows orwidowers insurance benefits based on disability under Title 2 ofthe Social Security Act, as
amended. (42 U.S.C. 405 (g))
All claims for supplemental security income r. ayments based upon disability filed under Title 16 of the Social Security Act,
as amended
All claims for retirement (old age) and survivirs benefits under Title 2 of the Social Security Act, as amended.
(42 U.S.C. 405 (g))
CV-71 (10/14)
Page 3 of 3
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