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COMPLAINT
Plaintiff Aviator Brewing Company, Inc., by and through its counsel, complaining of
Defendant Table Bluff Brewing, Inc. d/b/a Lost Coast, alleges and says:
PARTIES
1.
Plaintiff Aviator Brewing Company, Inc. is a North Carolina corporation with its
Defendant Table Bluff Brewing, Inc. d/b/a Lost Coast is a California corporation
This suit is brought pursuant to the declaratory judgment act, 28 U.S.C. 2201
and 2202, and the Lanham Act, 15 U.S.C. 1114. This Court has subject matter jurisdiction
over this suit pursuant to 18 U.S.C. 1331.
4.
Defendant regularly does business in this state via its distributor, Freedom
Upon information and belief, Defendants beer, to include the great white beer at
issue in this case, is sold by stores in this judicial district. Defendants beer, to include the great
white beer at issue in this case, is also sold online into this judicial district.
6.
The acts which Defendant accuses Plaintiff of taking occurred in this state and in
8.
hangar in 2008. Since then, Mr. Doble grew his little brewery to be a strong locally owned and
operated business that brews and sells its unique beers throughout this state. Plaintiffs beers are
also available in select cities in the southeastern United States.
9.
One of the ways Plaintiff sells its beers is in cans that display the fun names given
Plaintiffs beers along with associated artwork. Plaintiff designs the unique, original can artwork
to play upon the name of that beer. For example, Plaintiffs HOGWILD INDIA PALE ALE
depicts a tough, wild looking anthropomorphic pig.
10.
In addition to displaying the name of the beer in large letters, each can of
Plaintiff is well regarded in North Carolina, and especially the Triangle region, for
its beers. Aviator has been voted Best Brewery In The Triangle and has won awards at the
North Carolina Championship of Beer.
12.
One of Plaintiffs beers is the MAD BEACH beer. MAD BEACH is a summer
afternoon beer. Like Plaintiffs other beers, cans of MAD BEACH beer are prominently marked
with the AVIATOR house mark in multiple locations, as well as the MAD BEACH mark.
Plaintiffs MAD BEACH can includes decorative artwork depicting a tough looking shark and
an octopus enjoying a beer at the North Carolina beach. Plaintiffs MAD BEACH label is shown
below:
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13.
In early 2014, Plaintiff received phone calls from Defendant Table Bluff Brewing,
a large brewery located in California that does business and holds itself out to the public as Lost
Coast Brewery & Caf. Defendant accused Plaintiff of violating Defendants copyright in
Defendants great white beer label. A copy of Defendants beer label is shown below:
14.
can and artwork did not infringe Defendants copyright. In response, Defendant wrote to
Plaintiff and asserted it has trademark rights in its label, to include the name of the beer and the
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Case 5:14-cv-00819-D Document 1 Filed 11/17/14 Page 3 of 7
Although Defendant knew or reasonably should have known that Plaintiff did not
do any business in California, in July 2014, Defendant brought suit against Plaintiff in the
Northern District of California for trademark infringement, in a case captioned Table Bluff
Brewing, Inc. d/b/a Lost Coast Brewery & Caf v. Aviator Brewing Company Inc., 3:14-cv-3433JCS (N.D. Cal. 2014).
16.
On November 14, 2014, the Honorable Charles Breyer found that California did
not have personal jurisdiction over Plaintiff Aviator. The California suit against Plaintiff was
dismissed.
17.
As Defendant previously brought suit against Plaintiff over these issues, Plaintiff
has a real and reasonable apprehension that Defendant will initiate another litigation proceeding
against Plaintiff based upon the same trademark allegations in the improper California suit.
Defendants past attempts to sue Plaintiff for trademark infringement related to the MAD
BEACH can artwork puts Plaintiffs right to freely compete in the beer and brewing industry in
jeopardy and places a cloud on Plaintiffs right to sell and market its beer. There is an actual
controversy between Plaintiff and Defendant. This Declaratory Judgment Action is proper under
the Declaratory Judgment Act.
18.
Plaintiffs MAD BEACH can artwork and Defendants great white beer label are
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19.
Plaintiffs MAD BEACH can and Defendants great white beer label both
prominently show the names of the beers as Mad Beach and Great White Beer. The name
Mad Beach is entirely dissimilar from Great White Beer. The word marks do not include
any of the same terms, have different rhythms and sounds, and have different connotations.
20.
Both labels include the respective partys house marks. Plaintiffs can
prominently displays Plaintiffs AVIATOR house mark. Indeed, AVIATOR is the largest word
element on the can, and is prominently positioned to catch consumer attention. The term
Aviator does not appear on Defendants can. Instead, Defendants can prominently displays
LOST COAST BREWERY & CAFE in large, yellow letters, along with Defendants address.
There are no confusing similarities between the house marks.
21.
Plaintiffs label uses a different artistic style and different arrangement of elements as compared
to Defendants label. Plaintiffs label also includes numerous elements not found in Defendants
label.
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22.
The only similarities between Plaintiffs artwork and Defendants label is that
both share the concept of sharks drinking beer, and both include surf boards with shark bites.
The actual depiction of these elements is distinctively different between the two cans.
23.
Numerous third parties use sharks and shark related imagery to sell alcoholic
beverages, to include beer. This imagery includes sharks; sharks drinking beer; and sharks with
surfboards with bite sized pieces missing.
24.
No reasonable consumer would find Plaintiffs MAD BEACH beer can and
26.
Plaintiff and Defendant regarding whether there is a likelihood of confusion between Plaintiffs
MAD BEACH beer can and Defendants great white beer label.
27.
Plaintiffs MAD BEACH beer is not likely to cause confusion, to cause mistake,
or to deceive any reasonable consumer into believing Plaintiffs beer is Defendants beer,
affiliated with Defendant or Defendants beer, or endorsed by Defendant.
28.
substantial investment and anticipated future investment in marketing its MAD BEACH beer.
29.
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30.
To resolve the controversy between the parties, this Court should declare there is
no likelihood of confusion between Plaintiffs MAD BEACH beer can and Defendants great
white beer label.
PRAYER FOR RELIEF
WHEREFORE Plaintiff respectfully prays the Court for a judgment:
A.
Declaring that Plaintiffs MAD BEACH can does not infringe Defendants
trademark rights;
B.
Finding this case exceptional and awarding Plaintiff its reasonable attorneys fees
Finding that the costs of this action and prejudgment interests be taxed against
Defendant; and
D.
the Court grant Plaintiff such other and further relief as the Court may deem just
and proper.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury be held on all issues so triable.
Respectfully submitted, this the 17th day of November, 2014
Coats & Bennett, PLLC
Attorneys for Aviator Brewing Co.
By:
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