STATES DISTRICT T EASTERN DISTRI X COLD STONE CREAMERY, INC., 08: 1 V1 0 . JUDGI Plaintiff, cm TRAGER, J mamneinamtae’ om OMI. Gey COMPLAINT ‘The Plaintiff, COLD STONE CREAMERY, INC, by its attorneys, CORBALLY, GARTLAND & RAPPLEYEA, LLP, as and for the Complaint against the Defendants, JERWAINE I. GORMAN and J. GORMAN INVESTMENT GROUP, INC , the Plaintiff hereby states and alleges the following: PARTIES 1, The Plaintiff, COLD STONE CREAMERY, INC., is an Arizona Corporation with headquarters located at 9311 East DeVentura, Scottsdale Arizona. 2. Plaintiff, COLD STONE CREAMERY, INC,, is in the business of making, marketing and selling super-premium ice cream and ice cream related products to the general public by way of a franchised system of retail outlets known as COLD STONE CREAMERY ice cream stores. ‘CORBALLY, GARTLAND AND RAPPLEVEA, LLP.» ATTORNEYS AND COUNSELORS AT LAW ‘SOMARKET STREET © POUGHKEEPSIE NEWYORK 1001 6 (45) 45-11103. Defendant, JERWAINE GORMAN, is an individual residing in the State of New York and, upon and belief, in Queens County, New York. Said Defendant is an ex-franchisee of COLD ‘STONE CREAMERY, INC. 4. Defendant, J. GORMAN INVESTMENT GROUP, INC, is, upon information and belief, 4 limited liability company substantially owned and operated by individual Defendant, JERWAINE GORMAN, with offices in Queens County, State of New York. JURISDICTION AND VENUE 5. This is a trademark infringement, false designation of origin, unfair competition and dilution action arising under the Trademark Act of 1946, as amended 15 USC §§ 1501-1129 and the Common Law of the State of New York, This Court has jurisdiction over this action pursuant to 28 USC §§ 1331, 1332 and 1338 and venue is proper in this District pursuant to 28 USC § 1391. EACTS COMMON TO ALL COUNTS 6. COLD STONE CREAMERY, INC,, is the owner of the following trademarks which are registered on the principal register of the United States Patent and Trademark Office. Mark Registration No. Date Issued Cold Stone Creamery (Typed) 2,542,783 2126/2002 Cold Stone Creamery & Design 1,968,506 4N6/1996 Cold Stone Creamery & Design 2,779,566 11/4/2003 Cold Stone Creamery & Design 2,779,567 11/4/2003 Cold Stone Creamery & Design 2,779,564 11/4/2003, Cold Stone Creamery & Design 2,779,565 11/4/2003 Cold Stone Creamery & Design 2,779,568 11/4/2003, Cold Stone Creamery & Design 2,779,570 11/4/2003 Copies of the registration certificates are attached hereto and made part hereof as EXHIBIT SAX. Said registrations are valid and subsisting and constitute prima facie evidence of the validity of the 2 ‘CORBALLY, GARTLAND AND RAPPLEVEA, LLP ATTORNEYS AND COUNSELORS AT LAW ‘S5MARKET STREET + POUGHKEEPSIE, NW YORK T2G0) = us) 41110marks and of COLD STONE CREAMERY, INC.’s exclusive right to control the use of the marks on an in connection with the goods recited in the registration certificates. 7. Since long prior to the acts of the Defendants complained herein, COLD STONE CREAMERY has used its registered trademarks on and in connection with the manufacturer, marketing and sale of super-premium ice cream and ice cream related products both nationally and intemationally. COLD STONE CREAMERY has expended a substantial amount of time, effort and money in the promotion and advertisement of goods and services offered and sold under the COLD STONE CREAMERY trademarks, 8 As a franchisor of COLD STONE CREAMERY ice cream stores, COLD STONE CREAMERY has developed a proprietary system including the COLD STONE CREAMERY registered trademarks, proprietary trade socrets and other proprictary processes, materials and rights relating to the development, promotion and operation of its franchised business. 9. Asaresult of COLD STONE CREAMERY’S advertising and promotional efforts under its registered trademarks, its ice cream restaurants have enjoyed growing commercial success and substantial good will so thst the COLD STONE CREAMERY name and marks are recognized throughout the United States and intemationally and have acquired a secondary meaning so that the public has come to associate the COLD STONE CREAMERY name and marks exelusively with Plaintiff and its super-premium ice cream. 10. In addition to the COLD STONE CREAMERY name and marks, COLD STONE has developed and has a proprietary interest in certain color schemes, designs, menu boards and decor, all constituting the proprietary “trade dress” of COLD STONE CREAMERY, INC. DEFENDANT'S UNLAWFUL ACTS AND CONDUCT 3 ‘CORBALLY,GARTLAND AND RAPPLEYEA, LLP ATTORNEYS AND COUNSELORS AT LAW ‘35 MARKET STREET. + POUGHKEEPSIE, NEW YORK T2601. = 45) 4941110