Вы находитесь на странице: 1из 7

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA


DIVISION
Case No: 14-cv-00819
AVIATOR BREWING COMPANY, INC.
Plaintiff,
v.
TABLE BLUFF BREWING, INC. D/B/A
LOST COAST BREWERY & CAFE,
Defendant.

)
)
)
)
)
)
)
)
)

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

principle place of business in Fuquay Varina, North Carolina.


2.

Defendant Table Bluff Brewing, Inc. d/b/a Lost Coast is a California corporation

with its principle place of business in Eureka, California.


JURISDICTION AND VENUE
3.

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

Beverage, located in Greensboro, North Carolina.


5.

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.

Case 5:14-cv-00819-D Document 1 Filed 11/17/14 Page 1 of 7

6.

The acts which Defendant accuses Plaintiff of taking occurred in this state and in

this judicial district.


7.

Personal jurisdiction and venue are proper in this district.


FACTS

8.

Plaintiff Aviator Brewing Company was founded by Mark Doble in an airplane

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

Plaintiffs beers also prominently displays the AVIATOR house marks.


11.

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:

2
Case 5:14-cv-00819-D Document 1 Filed 11/17/14 Page 2 of 7

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.

Thereafter, Plaintiff wrote to Defendant, explaining that Plaintiffs MAD BEACH

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

3
Case 5:14-cv-00819-D Document 1 Filed 11/17/14 Page 3 of 7

artwork associated therewith. Defendant claimed Plaintiff infringed Defendants trademark


rights. Although Plaintiff explained to Defendant that Plaintiff did not violate Defendants
trademark rights either, Defendant continued to send Plaintiff threatening letters about the great
white beer label.
15.

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

so dissimilar, no reasonable consumer is likely to be confused. Plaintiffs artwork is shown


below, left. The artistic portion of Defendants great white beer label is shown below, right.

4
Case 5:14-cv-00819-D Document 1 Filed 11/17/14 Page 4 of 7

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.

The artwork portion of Plaintiffs can is dissimilar to Defendants label.

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.

5
Case 5:14-cv-00819-D Document 1 Filed 11/17/14 Page 5 of 7

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

Defendants great white beer label to be confusingly similar.


COUNT I
DECLARATORY JUDGMENT OF NON-INFRINGEMENT
OF LANHAM ACT 15 U.S.C. 1114 & 1125(a)
25.

Plaintiff incorporates by reference the allegations of the preceding paragraphs.

26.

Based on Defendants course of conduct, an actual controversy exists between

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.

Declaratory relief is necessary to avoid legal uncertainty and to protect Plaintiffs

substantial investment and anticipated future investment in marketing its MAD BEACH beer.
29.

Defendants prior attempt to sue Plaintiff damages Plaintiff and is likely to

continue to damage Plaintiff in the future.

6
Case 5:14-cv-00819-D Document 1 Filed 11/17/14 Page 6 of 7

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

pursuant to 15 U.S.C. 1117;


C.

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:

/s/ Emily M. Haas


Emily M. Haas
NC State Bar No. 39,716
Anthony J. Biller
NC State Bar No. 24,117
1400 Crescent Green, Suite 300
Cary, North Carolina 27518
Telephone: (919) 854-1844
Facsimile: (919) 854-2084
Email: ehaas@coatsandbennett.com
abiller@coatsandbennett.com

7
Case 5:14-cv-00819-D Document 1 Filed 11/17/14 Page 7 of 7

Вам также может понравиться