Gummy Bear International v. Kocakus and Rudy's Family PDF

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 1 of 21 PageID #: 1
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE
GUMMY BEAR INTERNATIONAL, INC.,

Plaintiff,
CIVIL ACTION NO.
v.
RUSAN KOCAKUS,
JURY TRIAL DEMANDED
and
RUDYS FAMILY
RESTAURANT DINER INC.,
Defendants.
COMPLAINT
Plaintiff Gummy Bear International, Inc. (hereinafter GBI or Plaintiff), by its
undersigned counsel, for its complaint against Rusan Kocakus (Kocakus) and Rudys Family
Restaurant Diner Inc. (RFRD, collectively with Kocakus, the Defendants), alleges as
follows:
NATURE OF THE ACTION
1.
This lawsuit arises out of the Defendants infringement and misappropriation of
GBIs intellectual property, specifically, its copyrighted, trademarked and highly popular
Gummibr character. The Defendants have blatantly and willfully infringed GBIs trademark
and copyrights through the creation and operation of a Gummibr-themed yogurt shop called
Rudys Gummy Berry Frozen Yogurt Shop (Yogurt Shop). The Defendants extensively
displayed actual images of the Gummibr character and artwork throughout the Yogurt Shop
without GBIs authorization as part of the Defendants flagrant effort to pass off the Yogurt Shop
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as an authorized Gummibr franchise. Accordingly, GBI brings this civil action for copyright
infringement under the Copyright Act, 17 U.S.C. 101 et seq.; trademark counterfeiting,
trademark infringement, trademark dilution, unfair competition, false advertising and false
designation of origin under the Lanham Act, 15 U.S.C. 101 et seq.; and for violations of the
Deceptive Trade Practices Act and Unfair Competition under Delaware state law. Plaintiff seeks
actual and statutory damages, attorneys fees, punitive damages, and injunctive relief.
PARTIES
2.
Plaintiff GBI is a corporation duly organized and existing under the laws of the
State of New Jersey, with its principal place of business located in New Jersey.
3.
Upon information and belief, RFRD is a corporation organized under the laws of
the State of Delaware, with its principal place of business located at 17064 South Dupont
Highway, Harrington, Delaware.
4.
Upon information and belief, Kocakus is an individual, who resides in Delaware.
Kocakus, upon information and belief, is the principal owner, officer, director and/or shareholder
of RFRD, and regularly conducts business in Delaware through the operation of multiple
restaurants. Upon information and belief, Kocakus had full knowledge and control over the
infringing activities of RFRD, including those specifically occurring within this judicial district.
JURISDICTION AND VENUE
5.
This Court has jurisdiction over the subject matter of this action pursuant to the
Copyright Act, 17 U.S.C. 101, et seq. and the Trademark Act of 1946, 15 U.S.C. 1051, et
seq. (the Lanham Act). This Court has original jurisdiction over this action under 28 U.S.C.
1331, 1332 and 1338 (a) and (b), 17 U.S.C. 501 and 15 U.S.C. 1116 and 1121, and
supplemental jurisdiction over the state law claims under 28 U.S.C. 1367(a).
6.
This Court has personal jurisdiction over the Defendants as the Defendants reside
in this district, transact business in this district, and have sold or distributed infringing
merchandise within this district. Hence, a substantial part of the events giving rise to the claims
alleged herein occurred in and continue to occur in this district.
7.
Venue is proper pursuant to 28 U.S.C. 1391(b)(2) and (c).

FACTS
GBIS GUMMIBR
8.
Gummibr, a singing and dancing animated gummy bear, is the most watched
animated character on YouTube, with more than three million video views each day and over
five billion total views.
9.
In 2005, Christian Schneider began developing the concept for the Gummibr
character, along with the lyrics and sound recordings for Gummibr songs.
10.
In 2006, the song I am a Gummy Bear and then a music video of the same
name, became viral internet sensations first in Europe and then throughout the United States and
the world. Schneider then authored a number of other songs to be sung by Gummibr which also
became immensely popular.
11.
Christian Schneider and his son of the same name (collectively referred to as the
Schneiders) conducted business in Europe under the name of Yazoo Music (GBR) (Yazoo).
12.
In 2007, the Schneiders and Jurgen Korduletsch formed GBI for the purpose of
exploiting the copyright and trademark rights to the animated Gummibr character in the United
States and in other territories. The Schneiders and Korduletsch are the owners of GBI and
Korduletsch serves as the President of GBI.
13.
GBI devoted a considerable amount of time, money and effort in developing an
original, animated Gummibr character to be featured in music videos and other media. GBI
also extensively promoted and marketed its original Gummibr character.
14.
GBI has produced a series of immensely popular Gummibr music videos.
Gummibrs upbeat music and humorous videos have been released in more than forty countries
and in over twenty-seven languages.
15.
In 2012, GBI released a Gummibr Christmas long-form video.
16.
In February 2014, John Travolta agreed to provide the voice for the Gummibr
character for a $30 million budgeted theatrical movie titled Gummy Bear the Movie. A
Gummibr television series, to be broadcast worldwide, is currently in production as well.
17.
GBI has obtained the following copyrights in the United States pertaining to
Gummibr:
a. In 2006, the sound recording and music rights for Gummibr Ich Bin Dein
Gummibr;
b. In 2007, the sound and recording music rights for Gummibr I Am Your
Gummy Bear; and
c. In 2012, the motion picture rights for The Yummy Gummy Search for
Christmas.
18.
Copies of the relevant Certificates of Copyright Registration obtained by GBI are
attached hereto as Exhibit 1.

19.
Copies of images of Gummibr from the The Yummy Gummy Search for
Christmas are attached hereto as Exhibit 2.
20.
GBI also owns the United States Registration for the Gummibr Mark
(Trademark Registration Number 4335076), a copy of which is attached hereto as Exhibit 3. The
GBI Trademark Registration covers a number of uses including but not limited to: i) candy,
cookies and crackers; ii) food staples such as ice cream, frozen yogurt, candy sweets and candy
bars; iii) toys and playthings; iv) childrens books and coloring books; and v) video files and
video animation.
21.
The Gummibr Mark has been in continuous use in the United States since 2007,
and is recognized throughout the United States and internationally.

22.
The distinctive Gummibr Mark consists of an anthropomorphic, pudgy gummy
bear, with a green torso, one chewed up ear, wearing only yellow and white shorts and white
sneakers with yellow stripes.
23.
GBI has successfully merchandized the Gummibr character internationally,
including throughout the United States. Gummibr merchandise includes but is not limited to tshirts, plush toys, childrens costumes, backpacks, candy and food products, party supplies,
school supplies and mouse pads.
24.
GBI presently licenses its trademark to a candy manufacturer who sells
Gummibr branded gummy bear candies through national retail outlets and on GBIs website.
25.
GBI has received inquiries about licensing its intellectual property rights
domestically to open Gummibr-themed yogurt, ice cream, candy or other food stores. At all
times relevant hereto, GBI has been considering and evaluating opening Gummibr-themed
food, candy and/or merchandise stores.
26.
GBI has expended considerable sums each year in advertising and promoting the
famous Gummibr Mark and the goods associated therewith, and has generated significant
publicity with respect to its business operations and brand name.
THE DEFENDANTS INFRINGEMENT OF GBIS TRADEMARK AND COPYRIGHTS
27.
RFRD is a large family restaurant located in Harrington, Delaware. RFRD
consists of a large dining room and two banquet halls.

28.
On or about October 30, 2014, the Delaware State News reported, in an article
attached hereto as Exhibit 4, that RFRD was expanding its business through the creation of the
Yogurt Shop. The Delaware State News further reported that RFRD was constructing a 2,600
square foot building adjacent to the existing restaurant to house the Yogurt Shop.
29.
The Defendants have blatantly infringed GBIs trademark and copyrights through
their unbridled exploitation of Gummibr to promote the Yogurt Shop.

30.
The Yogurt Shop extensively displayed actual images of the Gummibr character
and Gummibr artwork without GBIs authorization. Unmistakably, the Defendants intended to
pass off the Yogurt Shop as an authorized Gummibr franchise. To accomplish this illicit goal,
RFRD misappropriated actual images of Gummibr from GBIs website, and other sources, and
exploited those images to promote its business and to sell counterfeit Gummibr goods and
services.
31.
Upon entering the Yogurt Shop, customers saw a large framed poster of
Gummibr (Exhibit 5).

32.
The Yogurt Shop contains seven yogurt machines each of which prominently
displayed three actual images of the distinctive Gummibr character (Exhibit 6). RFRD
provided its customers with cups conspicuously bearing a Gummibr image (Exhibit 7).
33.
Defendants pasted decals containing images of Gummibr on the floor of the
Yogurt Shop to direct customers through the self-serve yogurt shop (Exhibit 8). Upon entering
the Yogurt Shop, customers were directed, by following the decals, to first select a small,
medium or large cup containing an image of Gummibr and then to select the flavor of yogurt to
be dispensed from the yogurt machines. After filling their cups, customers could then select
from a variety of candy and cookie toppings of their choice, including gummy bears, to add to
their cups filled with Rudys Gummy Berry yogurt.
34.
To promote the Yogurt Shop, RFRD also displayed the Gummibr image in its
diner on placemats (Exhibit 9), on business cards (Exhibit 10), and on t-shirts worn by waiters
(Exhibit 11).
35.
The Yogurt Shop also featured a connected Gummibr themed party room which
prominently displayed another large framed Gummibr poster (Exhibits 12 & 13). The party
room contained large easels to allow groups to engage in coloring and painting together.
Tellingly, GBIs trademark registration covers coloring books, and GBI sold coloring books to
children.
36.
RFRD further exploited the Gummibr character in its in-store promotions by
misappropriating an image of Gummibr taken from the popular I am a Gummy Bear music
video (Exhibit 14).
37.
Strikingly, RFRD misappropriated the precise image of Gummibr contained in
the Trademark Registration for use on the floor decals, the business cards and the yogurt
machines. Thus, due to RFRDs unauthorized use of the precise mark contained in GBIs
trademark registration, RFRD confused customers mistakenly believed they were purchasing
Gummibr-licensed frozen yogurt and toppings.
38.
RFRD also prominently displayed a knock-off image of the Gummibr character
in a large billboard located in front of the store to direct traffic to the Yogurt Shop (Exhibit 15).
This knock-off image was the product of the Defendants crude effort to replicate Gummibr.
The Defendants interchangeably used the knock-off and actual images of Gummibr
simultaneously in the Yogurt Shop. The knock-off images were substantially and strikingly
similar to the actual images of Gummibr.
39.
The Defendants also created and employed an unauthorized dancing Gummibr
mascot to entertain patrons in the store or to solicit cars driving by the store (Exhibits 16 & 17).
40.
The Defendants displayed on RFRDs website and Facebook page photographs of
their exploitation of Gummibr throughout the Yogurt Shop, along with videos of their
Gummibr mascot performing inside and outside the restaurant (Exhibit 18).
41.
Due to RFRDs flagrant infringement and counterfeiting, confused Gummibr
fans have communicated to GBI in substance their mistaken impression that RFRD was an
authorized franchise of GBI, or licensed by GBI to exploit its intellectual property.
42.
This customer confusion is particularly disconcerting in light of some of the
negative reviews received by RFRD on various social media websites regarding RFRDs
allegedly unsanitary conditions and rude staff. Further, Defendants tarnished the brand through
their use of a crude costume for its Gummibr mascot (as opposed to the professional costumes
used by GBI at trade shows or sold during Halloween).
43.
A former manager at RFRD transmitted an email to GBI alerting GBI that the
Defendants were infringing GBIs trademark. This communication confirms that the Defendants
willfully infringed GBIs intellectual property rights.
44.
GBI sent a cease and desist letter to the Defendants on July 13, 2015.
45.
The Defendants nonetheless continued willfully and flagrantly to infringe GBIs
trademark and copyright through the end of August 2015, and upon information and belief, are
continuing to do so.
COUNT I
COPYRIGHT INFRINGEMENT UNDER 17 U.S.C. 101 et seq.
46.
The allegations of the preceding paragraphs are incorporated by reference herein
with the same force and effect as if set forth in full below.
47.
GBI is the copyright owner of the exclusive rights under copyright with respect to
the Gummibr images and character for which GBI has obtained a Certificate of Copyright
Registration issued by the Register of Copyrights.
48.
Gummibr is protectable under copyright law as an original expression consisting
of the unique combination of Gummibrs appearance, characteristics, traits and behaviors.

49.
The Defendants have never sought, and GBI has never granted to the Defendants,
any license to exploit Gummibr.

50.
The Defendants have infringed GBIs copyrights by displaying actual images of
Gummibr on the yogurt machines, on decals pasted on the floor of the Yogurt Shop, and in
large framed photographs displayed throughout the Yogurt Shop.
51.
The Defendants further infringed GBIs copyrights by displaying actual images of
Gummibr on the Defendants website and on the Defendants Facebook page to promote the
Yogurt Shop.
52.
Simultaneous with their use of actual images of Gummibr, the Defendants also
displayed knock-off images of Gummibr on a billboard in front of the store and inside the
Yogurt Shop (knock-off images). The knock-off images were substantially and strikingly
similar to the actual images of Gummibr. The Defendants intended for their customers to view
the actual and knock-off images of Gummibr as representations of one and the same character.
53.
The Defendants also violated GBIs copyrights by directing an agent of RFRD to
dress in a Gummibr costume and to perform publicly in front of RFRD, and inside the Yogurt
Shop, as Gummibr. The Defendants then further infringed GBIs copyrights by displaying
videos of these illegal performances on RFRDs website and Facebook page.
54.
Upon information and belief, the Defendants also have played GBIs copyrighted
songs in the Yogurt Shop to solicit and entertain customers, including with the Defendants
mascot present.
55.
Upon information and belief, the Defendants are continuing in their unlicensed
and infringing activities.

56.
The Defendants unauthorized acts constituted, and will continue to constitute,
willful infringement of GBIs exclusive rights under copyright to Gummibr.

57.
Defendants have unlawfully derived, and will continue to derive, income and
profits from their infringing acts. GBI has sustained, and will continue to sustain, substantial
injury, loss and damage.
58.
As a direct and proximate result of the Defendants acts of copyright
infringement, GBI is entitled to actual damages and Defendants profits pursuant to 17 U.S.C.
504(b). Alternatively, GBI is entitled to the maximum statutory damages in the amount of
$150,000 with respect to each infringed copyright pursuant to 17 U.S.C. 504(c).
59.
GBI is also entitled to attorneys fees pursuant to 17 U.S.C. 505.
60.
The Defendants conduct is causing and, unless enjoined by this Court, will
continue to cause irreparable injury to GBI that cannot be fully compensated or measured in
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money damages. GBI has no adequate remedy at law and, pursuant to 17 U.S.C. 502, is
entitled to permanent injunctive relief prohibiting the Defendants from continuing to infringe
GBIs copyrights.
COUNT II
FEDERAL TRADEMARK COUNTERFEITING
AND INFRINGEMENT UNDER 15 U.S.C. 1114 et seq.
61.
62.
The Gummibr mark and goodwill of the business associated with the mark in the
United States is of great and incalculable value, is highly distinctive and has become universally
associated in the public mind with GBIs products of the highest quality and reputation.
63.
The Defendants have sold candy and yogurt products in containers, and dispensed
from machines, bearing marks which are identical to the true Gummibr mark (the Counterfeit
Products).
64.
The Defendants have manufactured, distributed, offered for sale and sold the
Counterfeit Products to the consuming public, in or affecting interstate commerce. At all times,
the Defendants acted without GBIs authorization and consent, and with knowledge of GBIs
prior rights in the Gummibr mark.
65.
The Defendants use of actual copies of or simulations of the true Gummibr
mark on their Counterfeit Products and in conjunction with the Defendants infringing websites
is likely to cause and has caused confusion, mistake and deception among the general purchasing
public as to the origin of the Counterfeit Products, and has deceived and is likely to continue to
deceive the public into believing that the Counterfeit Products being sold by Defendants
originate from, are associated with or are otherwise authorized by GBI, all to the damage and
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detriment of GBIs reputation, goodwill and sales. Accordingly, Defendants have used and are
using reproductions, counterfeits and copies of GBIs federally registered marks in violation of
15 U.S.C. 1114.
66.
GBI has no adequate remedy at law and, if Defendants activities are not
enjoined, GBI will continue to suffer irreparable harm and injury to its goodwill and reputation.
67.
Defendants actions demonstrate an intentional, willful and malicious intent to
trade on the goodwill associated with the Gummibr mark, to GBIs great and irreparable injury.
68.
Defendants are causing and will continue to cause substantial injury to the public
and to GBI, and GBI is entitled to injunctive relief and to recover Defendants profits, treble
damages, or, in the alternative, maximum statutory damages as well as costs, and reasonable
attorneys fees under 15 U.S.C. 1114, 1116 and 1117.
COUNT III
UNFAIR COMPETITION AND
FALSE DESIGNATION OF ORIGIN UNDER 15 U.S.C. 1125(a)
69.
70.
The Defendants knowing use of the Gummibr mark, or confusingly similar
imitations of the true Gummibr mark, in connection with the sale of goods in the Yogurt Shop,
has caused and will continue to cause confusion, deception and mistake among the general
purchasing public, by creating the false and misleading impression that Defendants goods are
manufactured or distributed by Gummibr, or are affiliated, connected or associated with
Gummibr, or have the sponsorship, endorsement or approval of Gummibr.
71.
By misappropriating and using the Gummibr mark and trade dress, Defendants
have misrepresented and falsely described to the general public the origin and source of the
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products being sold in the Yogurt Shop and have created a likelihood of confusion by consumers
as to the source of such merchandise.
72.
Defendants have expressly and implicitly represented that the products sold in the
Yogurt Shop were created, authorized or approved by GBI, all to Defendants profit and to
GBIs great damage and injury.
73.
Defendants aforesaid acts are in violation of Section 43(a) of the Lanham Act, 15
U.S.C. 1125(a), in that Defendants use of the GBI mark, in connection with their goods and
services, in interstate commerce constitutes a false designation of origin and unfair competition.
74.
GBI has no adequate remedy at law and, if the Defendants activities are not
enjoined, GBI will continue to suffer irreparable harm and injury to its goodwill and reputation.
75.
Defendants actions demonstrate an intentional, willful and malicious intent to
trade on the goodwill associated with the GBI mark to GBIs great and irreparable injury.
COUNT IV
TRADEMARK DILUTION UNDER 15 U.S.C. 1125(C)
76.
77.
Plaintiffs mark is a famous mark within the meaning of 15 U.S.C. 1125 (c)(1)
and had become a famous mark prior to the Defendants conduct complained of herein.
78.
Plaintiffs trademark is famous by virtue of its inherent and acquired
distinctiveness, along with through the Plaintiffs extensive use, advertising and publicity of the
mark that has resulted in strong and widespread recognition of the mark, and by virtue of the
registration of the mark on the Principal Trademark Register of the United States Patent and
Trademark office.
13
79.
The Defendants use of the Plaintiffs mark on and in connection with the sale and
distribution of the infringing products dilutes the strength and distinctive quality of Plaintiffs
famous trademark and lessens the capacity of the Plaintiffs trademark to identify and distinguish
Plaintiffs products. Defendants also have tarnished the Plaintiffs trademark by associating it
with the negative review of the Defendants business and through their public display of their
crude Gummibr mascot.
80.
The acts and conduct complained of herein constitute willful and deliberate
dilution of Plaintiffs trademark. The foregoing acts of the Defendants constitute a violation of
the federal anti-dilution statute, Section 43(c) of the Lanham Act, 15 U.S.C. 1125(c).
81.
By reason of all the foregoing, Plaintiff has been damaged by the Defendants
willful use of the Plaintiffs trademark in the manner set forth above and will continue to be
irreparably injured unless the Defendants are permanently enjoined from using the mark.
82.
Plaintiff is entitled to all damages it has sustained in an amount to be determined
at trial including but not limited to the Defendants profits and gains as a result of their unfair
competition described above, attorneys fees and costs of this action. Moreover, by virtue of the
Defendants willful infringement, Plaintiff is entitled to statutory damages.
COUNT V
FALSE ADVERTISING LANHAM ACT 43(A), 15 U.S.C. 1125(A)
83.
84.
Upon information and belief, the Defendants advertised the Yogurt Shop, through
exploitation of the Gummibr mark, on the internet, in the print media, in a billboard in front of
the store and through public performances by their unlicensed Gummibr mascot.
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85.
Section 43(a) of the Lanham Act , 15 U.S.C. 1125(a) provides in relevant part
that any person who, or in connection with any goods or services, uses in commerce any
false or misleading description of fact, which in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities or geographic origin of his or her or another
persons goods, services, or commercial activities, shall be liable to a civil action by any person
who believes that he or she is likely to be damaged by such act.
86.
The aforementioned advertising contained false representations as to the origin,
sponsorship, or approval of Defendants goods, services, or commercial activities by GBI.

87.
By reason of the Defendants conduct, Plaintiffs have suffered and will continue
to suffer, damage to their businesses, reputations and goodwill. Pursuant to 15 U.S.C. 1117,
Plaintiffs are entitled to damages for Defendants Lanham act violations, an accounting of profits
made by Defendants through their sale of infringing goods and services, and the recovery of
Plaintiffs costs and reasonable attorneys fees incurred in this action.
88.
Defendants acts are willful, wanton and calculated to deceive, and are undertaken
in bad faith, making this an exceptional case entitling Plaintiff to recover additional damages and
reasonable attorneys fees pursuant to 15 U.S.C. 1117.
89.
Unless enjoined by this Court, Defendants acts will irreparably injure Plaintiffs
goodwill. Pursuant to 15 U.S.C. 1116, Plaintiffs are entitled to permanent injunctive relief to
prevent Defendants continuing acts.
COUNT VI
VIOLATION OF THE DELAWARE DECEPTIVE TRADE PRACTICES ACT
90.
91.
6 Del. C. 2532 provides that:

15
(a) A person engages in a deceptive trade practice when, in the course of his business,
vocation, or occupation, that person:
(1) Passes off goods or services as those of another;
(2) Causes likelihood of confusion or of misunderstanding as to the source,
sponsorship, approval, or certification of goods or services;
(3) Causes likelihood of confusion or of misunderstanding as to affiliation,
connection, or association with, or certification by, another ;
(5) represents that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities that they do not have or that a person
has a sponsorship, approval, status, affiliation or connection that he or she
does not have;
(12) engages in any other conduct which similarly creates a likelihood of
confusion or of misunderstanding.
92.
6 Del. C. 2532 provides a private right of action to enforce the provisions of 6
Del. C. 2532.
93.
In the course of their business, the Defendants, by and through their false and
misleading representations of fact and conduct concerning Gummibr have engaged in and
continue to engage in deceptive trade practices in violation of 6 Del. C. 2532.
94.
Defendants have willfully engaged in their actions regarding Gummibr knowing
them to be deceptive.
95.
By reason of the Defendants conduct, Plaintiffs have suffered and will continue
to suffer damage to its business, reputation and goodwill.
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COUNT VII
COMMON LAW UNFAIR COMPETITION
96.
97.
Defendants actions as described above have been undertaken with the intention
of benefiting from and profiting upon the name and associated goodwill connected with
Gummibr. Defendants accomplished this goal through the use of the Gummibr trademark and
trade dress owned by Plaintiffs.
98.
Defendants use of the trademark and trade dress owned by the Plaintiff was
intended to, and unless restrained by this Court, will lead and tends to lead the public to believe
that there is a connection or association between Defendants and Plaintiff, when in fact there is
none.
99.
Upon information and belief, Defendants have made, and unless enjoined, will
continue to make considerable profit as the direct result of their wrongful actions, which have
been undertaken in wanton, willful and reckless disregard of Plaintiffs rights.
100.
Defendants actions injured Plaintiffs reputation and goodwill and expressly
misled the public by falsely imputing a connection or relationship between Defendants inferior
products and services and Plaintiff. This has caused the Plaintiff to suffer financially, and
constitutes unfair competition in derogation of the common law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests the following relief:
1.
That Defendants and their respective agents, servants, employees,
contractors and all persons, firms, corporations, or entities acting under Defendants direction,
authority or control, and all persons acting in concert with any of them, be permanently enjoined
17
from: a) using the Plaintiffs copyrights, trademarks, service marks, logos and trade dress, or any
copy, counterfeit or imitation of any of them in any manner, including but not limited to in
advertising, promoting, and/or marketing their Yogurt Shop; b) committing or inducing others to
commit any other infringing acts calculated to cause purchasers to believe that Defendants are
selling Plaintiffs genuine products;
2.
That Defendants be required to account pursuant to 17 U.S.C. 504 and
15 U.S.C. 1117 for Plaintiffs losses and Defendants profits derived from advertising,
promoting, marketing, purchasing, distributing, displaying, selling, offering to sell product which
infringe upon Plaintiffs copyrights and trademark.
3.
That Defendants be ordered to pay statutory damages for willful copyright
infringement in an amount of not less than $150,000 per copyrighted work infringed;
4.
That Plaintiff be awarded damages in an amount to be determined at trial
in connection with Defendants acts of trademark infringement, unfair competition, and dilution
of Plaintiffs trademark and trade dress under both the Lanham Act and Delaware Law;
5.
That Defendants be ordered to pay either actual damages and infringing
profits or statutory damages for willful trademark counterfeiting in an amount of up to

$2,000,000 per counterfeit mark per type of goods sold, offered for sale or distributed as the
Court considers just;
6.
That all infringing merchandise, advertisements, containers, photographs,
decals and posters, which incorporate the Plaintiffs copyrights, trademarks, service marks, logos
and trade dress, or any copy or imitation of any of them, be surrendered, impounded and
destroyed pursuant to Lanham Act, 15 U.S.C. 1118 and Copyright Act, 17 U.S.C. 503;
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7.
That Defendants be ordered to pay Plaintiffs costs incurred herein,
including reasonable attorneys fees;

8.
That treble damages be awarded for all trademark damages assessed
9.
That exemplary and punitive trademark damages be awarded; and
10.
That Plaintiff be awarded such other and further relief as is just, proper
herein;
and equitable.
DEMAND FOR JURY TRIAL
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a trial
by jury as to all issues so triable.
LAW OFFICES OF
MICHELE D. ALLEN, LLC
KAGEN & CASPERSEN

/s/ Russell Bogart
Russell Bogart, Esq. (RB 0320)
900 Third Avenue, 17th Floor
New York, N.Y. 10007
(212) 880-2045
rbogart@kagencaspersen.com
Pro Hac Vice pending
/s/ Michele D. Allen

Michele D. Allen, Esq. (Bar ID 4359)
724 Yorklyn Road, Suite 310
Hockessin, DE 19707
Telephone: (302) 234-8600
Facsimile: (302) 234-8602
michele@micheleallenlaw.com
Attorney for Plaintiff
Dated: February 24, 2016
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EXHIBIT
NUMBER
1
DESCRIPTION
Copies of the Certificates of Copyright Registration pertaining to Gummibr
obtained by GBI.
Images of Gummibr from The Yummy Gummy Search for Christmas DVD.
The Trademark Registration for the Gummibr Mark.
October 30, 2014 Delaware State News Article.
Photographs of a large, framed Gummibr poster present in the front of the

Yogurt Shop.
Photographs of the displaying of actual Gummibr images on the yogurt

machines contained in the Yogurt Shop.
Photographs of the cups used in the Yogurt Shop which display the Gummibr
image.
Photographs of the Gummibr decals pasted to the floor of the Yogurt Shop.
Photograph of the Gummibr image on placemats.
10
Photographs of the Gummibr image on business cards.
11
Photographs of the Gummibr image on t-shirts.
12
Photograph of the Gummibr themed party room.
13
Photograph of the exploitation of Gummibr in promotions.
14
Photograph of the exploitation of Gummibr in promotions.
15
Photograph of the display of Gummibr in a billboard located in front of the

Yogurt Shop.
16
Images from a video available on the Facebook page for the Defendants which
depicted the Defendants use of a Gummibr mascot to entertain children in the
Yogurt Shop.
20
17
Images from a video available on the Facebook page for the Defendants which
depicted the Defendants use of a Gummibr mascot located in front of the
Yogurt Shop soliciting customers for the Defendants.
18
Photographs displayed on the Defendants website and Facebook page which

exploit the Gummibr image.
21

Gummy Bear International v. Kocakus and Rudy's Family PDF

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Gummy Bear International v. Kocakus and Rudy's Family PDF

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Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 1 of 21 PageID #: 1

IN THE UNITED STATES DISTRICT COURT

GUMMY BEAR INTERNATIONAL, INC.,

CIVIL ACTION NO.

JURY TRIAL DEMANDED

This lawsuit arises out of the Defendants infringement and misappropriation of

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 2 of 21 PageID #: 2

Upon information and belief, Kocakus is an individual, who resides in Delaware.

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 3 of 21 PageID #: 3

Venue is proper pursuant to 28 U.S.C. 1391(b)(2) and (c).

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 4 of 21 PageID #: 4

GBI devoted a considerable amount of time, money and effort in developing an

GBI has produced a series of immensely popular Gummibr music videos.

In 2012, GBI released a Gummibr Christmas long-form video.

Copies of the relevant Certificates of Copyright Registration obtained by GBI are

attached hereto as Exhibit 1.

Christmas are attached hereto as Exhibit 2.

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 5 of 21 PageID #: 5

and is recognized throughout the United States and internationally.

The distinctive Gummibr Mark consists of an anthropomorphic, pudgy gummy

GBI has successfully merchandized the Gummibr character internationally,

GBI presently licenses its trademark to a candy manufacturer who sells

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 6 of 21 PageID #: 6

RFRD is a large family restaurant located in Harrington, Delaware. RFRD

consists of a large dining room and two banquet halls.

their unbridled exploitation of Gummibr to promote the Yogurt Shop.

Gummibr (Exhibit 5).

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 7 of 21 PageID #: 7

Defendants pasted decals containing images of Gummibr on the floor of the

RFRD further exploited the Gummibr character in its in-store promotions by

Strikingly, RFRD misappropriated the precise image of Gummibr contained in

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 8 of 21 PageID #: 8

RFRD also prominently displayed a knock-off image of the Gummibr character

The Defendants also created and employed an unauthorized dancing Gummibr

The Defendants displayed on RFRDs website and Facebook page photographs of

Due to RFRDs flagrant infringement and counterfeiting, confused Gummibr

This customer confusion is particularly disconcerting in light of some of the

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 9 of 21 PageID #: 9

The Defendants nonetheless continued willfully and flagrantly to infringe GBIs

The allegations of the preceding paragraphs are incorporated by reference herein

Gummibr is protectable under copyright law as an original expression consisting

of the unique combination of Gummibrs appearance, characteristics, traits and behaviors.

any license to exploit Gummibr.

The Defendants have infringed GBIs copyrights by displaying actual images of

The Defendants further infringed GBIs copyrights by displaying actual images of

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 10 of 21 PageID #: 10

The Defendants also violated GBIs copyrights by directing an agent of RFRD to

and infringing activities.

The Defendants unauthorized acts constituted, and will continue to constitute,

willful infringement of GBIs exclusive rights under copyright to Gummibr.

As a direct and proximate result of the Defendants acts of copyright

GBI is also entitled to attorneys fees pursuant to 17 U.S.C. 505.

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 11 of 21 PageID #: 11

The allegations of the preceding paragraphs are incorporated by reference herein

The Defendants use of actual copies of or simulations of the true Gummibr

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 12 of 21 PageID #: 12

Defendants actions demonstrate an intentional, willful and malicious intent to

The allegations of the preceding paragraphs are incorporated by reference herein

The Defendants knowing use of the Gummibr mark, or confusingly similar

Case 1:16-cv-00106-RGA Document 1 Filed 02/25/16 Page 13 of 21 PageID #: 13

Defendants actions demonstrate an intentional, willful and malicious intent to

The allegations of the preceding paragraphs are incorporated by reference herein