Current Technologies v. HypeWipes - Complaint

rSev4S4YJUDGEABRAMS CIVIL COVER SHEET

The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as provided by local rules of court. This form, approved by theJudicial Conference oftheUnited Statesin Si=*tember 1974, isrequired for usj^>f theClerk ofCourt for thepurpose ofinitiating the civil docket sheet. C>^ ^^

DEFENDANTS

ules of court. This form, approved by ther us^)f the Clerk ofCourtfor the purpose of

14 €¥ 4782VPLAINTIFFS

Hapak Enterprises, Inc. d/b/a, Current Technologies

rMeATTORNEYS (FIRM NAME, ADDRESS, AND TELEIAbelman Frayne & Schwab666 Third Avenue

New York, New York (212) 949-2022

CAUSEOF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OFCAUSE)(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Violationsof Trademark Infringement under 15 U.S.C. Section 1114; 15 U.S.C. Section 1125(a)

Has this action, case, or proceeding, or one essentially the same been previously filed in SDNY atany time? NcEVesdudge Previously Assigned

If yes, was this case Vol.FJ Invol. Q Dismissed. No fj Yes FJ If yes, give date &Case No.

No 0

NUMBER

Hypewipes, LLC

ATTORNEYS (IF KNOWN)

IS THIS ANINTERNATIONAL ARBITRATION CASE?

(PLACE AN[x] INONEBOXONLY)

Yes •

NATURE OF SUIT

I 1110[ ]120I ]130I 1140

[ J 150

I 1151I 1152

t I 153

[ ]160

I I 190

i ]195

[ ]196

PERSONAL INJURY

[ ] 310 AIRPLANE[ ] 315 AIRPLANE PRODUCT

LIABILITY

[ ] 320 ASSAULT, LIBEL &SLANDER

[ ] 330 FEDERALEMPLOYERS'

LIABILITY

[ ] 340 MARINE[ ] 345 MARINE PRODUCT

LIABILITY

[ ] 350 MOTOR VEHICLE[ j 355 MOTOR VEHICLE

PRODUCT LIABILITY

[ ] 360 OTHER PERSONALINJURY

[ ] 362 PERSONAL INJURY -MED MALPRACTICE

PERSONAL INJURY[ 1 367 HEALTHCARE/PHARMACEUTICAL PERSONAL , , 625 DRUG RELATEDINJURY/PRODUCT LIABILITY

[ ] 365 PERSONAL INJURYPRODUCT LIABILITY

[ ] 368 ASBESTOS PERSONALINJURY PRODUCT

LIABILITY

PERSONAL PROPERTY

[ ] 370 OTHER FRAUD[ ] 371 TRUTH IN LENDING

INSURANCE

MARINE

MILLER ACT

NEGOTIABLE

INSTRUMENT

RECOVERY OF

OVERPAYMENT &

ENFORCEMENT

OF JUDGMENT

MEDICARE ACT

RECOVERY OF

DEFAULTED

STUDENT LOANS

(EXCL VETERANS)RECOVERY OF

OVERPAYMENT

OF VETERAN'S

BENEFITS

STOCKHOLDERS

SUITS

OTHER

CONTRACT

CONTRACT

PRODUCT

LIABILITY

FRANCHISE

ACTIONS UNDER STATUTES

CIVIL RIGHTS

[ ] 440 OTHER CIVIL RIGHTS(Non-Prisoner)

[ ) 441 VOTING[ ] 442 EMPLOYMENT( 1443 HOUSING/

ACCOMMODATIONS[ ) 445 AMERICANS WITH

DISABILITIES -

EMPLOYMENT

[ )446 AMERICANS WITHDISABILITIES -OTHER

[ ] 448 EDUCATION

[ ] 380 OTHER PERSONALPROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGEPRODUCT LIABILITY

PRISONER PETITIONS

[ ) 463 ALIEN DETAINEE[ ] 510 MOTIONS TO

VACATE SENTENCE

28 USC 2255

[ ] 530 HABEAS CORPUS[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS & OTHER

REAL PROPERTY

PRISONER CIVIL RIGHTS

[ ] 550 CIVIL RIGHTS[ ] 555 PRISON CONDITION[ ] 560 CIVIL DETAINEE

FORFEITURE/PENALTY

SEIZURE OF PROPERTY

21 USC 881

[ ] 690 OTHER

LABOR

[ ] 710 FAIR LABORSTANDARDS ACT

[ ] 720 LABOR/MGMTRELATIONS

[ ) 740 RAILWAY LABOR ACT

[ ] 751 FAMILY MEDICALLEAVE ACT (FMLA)

[ ] 790 OTHER LABORLITIGATION

[ ) 791 EMPL RET INCSECURITY ACT

IMMIGRATION

[ ) 462 NATURALIZATIONAPPLICATION

[ ] 465 OTHER IMMIGRATIONACTIONS

[ ]210

[ ]220[ J 230

[ ]2401 ]245

[ ]290

LAND

CONDEMNATION

FORECLOSURE

RENT LEASE &

EJECTMENT

TORTS TO LAND

TORT PRODUCT

LIABILITY

ALL OTHER

REAL PROPERTY

CONDITIONS OF CONFINEMENT

Checkifdemanded in complaint:

CHECK IF THIS IS ACLASS ACTIONUNDER F.R.C.P. 23

ACTIONS UNDER STATUTES

BANKRUPTCY OTHER STATUTES

1 1 375 FALSE CLAIMS[ )400 STATE[ J 422 APPEAL

28 USC 158 REAPPORTIONMENT[ ] 423 WITHDRAWAL [ ) 410 ANTITRUST

28 USC 157 [ ] 430 BANKS & BANKING[ ) 450 COMMERCE[ ) 460 DEPORTATION

PROPERTY RIGHTS [ ) 470 RACKETEER INFLUENCED & CORRUPT

[ ] 820 COPYRIGHTS ORGANIZATION ACT[ ] 830 PATENT (RICO)M 840 TRADEMARK [ ] 480 CONSUMER CREDIT

[ ] 490 CABLE/SATELLITE TV

SOCIAL SECURITY [ ) 850 SECURITIES/COMMODITIES/

[ ]861 HIA(1395ff) EXCHANGE[ ] 862 BLACK LUNG (923)[ j 863 DIWC/DIWW (405(g))[ ] 864 SSID TITLE XVI[ ] 865 RSI (405(g)) [ ) 890 OTHER STATUTORY

ACTIONS

! ) 891 AGRICULTURAL ACTSFEDERAL TAX SUITS

[ ] 870 TAXES (U.S. Plaintiff orDefendant)

[ ] 871 IRS-THIRD PARTY26 USC 7609

[ ] 893 ENVIRONMENTALMATTERS

[ ) 895 FREEDOM OFINFORMATION ACT

[ ) 896 ARBITRATION

[ ] 899 ADMINISTRATIVE

PROCEDURE ACT/REVIEW OR

APPEAL OF AGENCY DECISION

[ ] 950 CONSTITUTIONALITY OFSTATE STATUTES

•DEMAND $$1,000,000 OTHER Injunction

liaYpyCLAIM THIS CASE IS RELATED TO ACIVIL CASE NOW PENDING IN S.D.N.Y.'

JUDGE DOCKET NUMBER

Check YES onlyifdemanded incomplaintJURY DEMAND: DYES IHhlO NOTE: You mustalso submitat the time offiling the Statement of Relatedness form (Form IH-32).

(PLACE AN x IN ONE BOX ONLY) ORIGIN

L*J 1 Original U 2 Removed from I—I 3 Remanded LJ 4 Reinstated or (_) 5 Transferred from • 6 Multidistrict • 7 Appeal to DistrictProceeding State Court from Reopened (Specify District) Litigation Judge from

n 3. ,11 parties represented APPellate Magistrate Judge1—' Court Judgment

| | b. At least oneparty is pro se.

(PLACEANxINONEBOXONLY) BASIS OF JURISDICTION IF DIVERSITY, INDICATE• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT \x\ 3 FEDERAL QUESTION D4 DIVERSITY CITIZENSHIP BELOW.

(U.S. NOT A PARTY)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiffand one box for Defendant)

PTF DEF PTFDEF PTF DEFCITIZEN OF THIS STATE [ )1 [ ] 1 CITIZEN OR SUBJECT OF A [ ]3 [ ]3 INCORPORATED andPRINCIPAL PLACE [ ]5 [ ]5

FOREIGN COUNTRY OF BUSINESS IN ANOTHER STATE

CITIZEN OF ANOTHER STATE [ )2 [ ]2 INCORPORATED or PRINCIPAL PLACE [ ]4 [ ]4 FOREIGN NATION [16 [16OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)

Hapak Enterprises, Inc. d/b/a, Current Technologies439 N 525 E

Crawfordville, IN 47933Montgomery County

DEFENDANT(S) ADDRESS(ES) ANDCOUNTY(IES)

Hypewipes, LLC88 Bellemeadow Drive

Watertown, CT 06795Litchfield County

DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, AT THIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TO ASCERTAIN

RE91BENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Check one: THIS ACTION SHOULD BE ASSIGNED TO: • WHITE PLAINS \*\ MANHATTAN(DO NOT check either box if this a PRISONER PETITION/PRISONER CIVIL RIGHTSCOMPLAINT.) y.

DATE 06/27/2014 SIGNATURE^ Apq^EY^^p>RD /f ADMITTED TO PRACTICE IN THIS DISTRICTj^Z£<*'C***T\_!s^&L^~*' * WYES (DATE ADMITTED Mo. June Yr. 1985 ,

RECEIPT* r I Attorney BarCode# 6336

Magistrate Judge is to be designated by the Cieil(f^rr&^8^NBTBURMMagistrate Judge is so Designated.

Ruby J. Krajick, Clerk ofCourt by Deputy Clerk, DATED _.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

Clear Form Save Print

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

vJUDOCABrlAMSHAPAK ENTERPRISES, INC.,--

d/b/a, CURRENT TECHNOLOGIES,

Plaintiff,

-against-

HYPEWIPES, LLC,

Defendant.

14 CV 4782

1

14 Civ.

d

CO

c:> ~ co -q

0m

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES FOR p~ 2 ~*aTRADEMARK INFRINGEMENT (15 U.S.C. § 1114), FOR FALsk r= o

DESIGNATION OF ORIGIN (15 U.S.C. § 1125(a)), FOR COMMON fin %LAW UNFAIR COMPETITION, AND FOR A DECLARATORY JUDGEMENT ^

The plaintiff Hapak Enterprises, Inc., d/b/a Current

Technologies ("CURRENT TECHNOLOGIES"), by its attorneys,

Abelman, Frayne & Schwab, for its complaint against the

defendant Hypewipes, LLC ("HYPEWIPES"), alleges as follows:

THE PARTIES

1. The plaintiff CURRENT TECHNOLOGIES is and was at all

relevant times a corporation organized and existing under the

laws of the State of Indiana with offices at 439 N 525 E,

Crawfordsville, Indiana 47933.

2. CURRENT TECHNOLOGIES was established in 1994 and

manufactures cleaning products, such as HYPE-WIPE® brand bleach

towelettes, that protect employees, patients, and researchers by

limiting the spread of germs and pathogens.

3. Upon information and belief, the defendant HYPEWIPES

is and was at all relevant times a limited liability company

organized in 2013 under the laws of the State of Connecticut,

with a business office at 88 Bellemeadow Drive, Watertown, CT

06795.

4. Upon information and belief, on its website

"HYPEWIPES.COM", HYPEWIPES sells cleaning and numerous other

products identified using the designation "HYPEWIPES" in

interstate commerce and within the Southern District of New

York.

JURISDICTION AND VENUE

5. This is an action seeking injunctive relief and

damages for trademark infringement in violation of the Trademark

Act of the United States, more particularly 15 U.S.C. § 1114(1),

for false designation of origin in violation of the Trademark

Act of the United States, more particularly 15 U.S.C. § 1125(a),

for related pendent acts of unfair competition in violation of

CURRENT TECHNOLOGIES' common law rights, as well as for a

declaratory judgment that "HYPEWIPES", i.e., the trademark

applied for in the defendant HYPEWIPES' U.S. Trademark

Application No. 85/932,829, is confusingly similar to CURRENT

TECHNOLOGIES' registered "HYPE-WIPE" trademark, and for an order

directing the Commissioner of the United States Patent and

Trademark Office to reject HYPEWIPES' trademark application

under the provisions of 28 U.S.C. §§ 2201 and 2202, and under

the laws of the United States concerning actions relating to

trademarks, 15 U.S.C. §§ 1119 and 1121.

6. This Court has jurisdiction over the subject matter of

this action pursuant to 15 U.S.C. § 1121 (Lanham Act), 28 U.S.C.

§ 1331 (federal question), 28 U.S.C. § 1338 (patent, trademark

and copyright), and pursuant to 28 U.S.C. § 1367 (supplemental

jurisdiction).

7. Venue is proper in the Southern District of New York

pursuant to 28 U.S.C. §§ 1391(b) and (c) .

FACTS COMMON TO ALL CAUSES OF ACTION

8. By this action the plaintiff CURRENT TECHNOLOGIES

seeks to enjoin the defendant HYPEWIPES, and those acting in

concert with it, from deliberately attempting to confuse the

public concerning the source, origin, and/or sponsorship of its

cleaning and numerous other products and from seeking to trade

upon and destroy CURRENT TECHNOLOGIES' distinctive "HYPE-WIPE"

trademark, and the associate business reputation and good will.

9. CURRENT TECHNOLOGIES further seeks an award of damages

arising as the result of the defendant HYPEWIPES's unlawful

conduct.

10. Since at least 1994, CURRENT TECHNOLOGIES has sold

cleaning products identified using its "HYPE-WIPE" trademark.

11. CURRENT TECHNOLOGIES owns all rights to Federal

Registration N-- 2,804,668, for the trademark "HYPE-WIPE" (the

"x668 Registration").

12. The ^668 Registration issued on January 13, 2004, is

registered on the Principal Register maintained by the United

States Patent and Trademark Office, and is valid and subsisting.

13. The ^668 Registration constitutes prima facie evidence

Of the validity of CURRENT TECHNOLOGIES' "HYPE-WIPE" trademark

and of its exclusive right to use the trademark in commerce.

14. Long before the acts of the defendant HYPEWIPES

complained of herein, as the result of the promotion and sale of

products identified by the "HYPE-WIPE" trademark and the high

quality of the products offered in connection with the "HYPE-

WIPE" trademark, the trademark has acquired a valuable

reputation and is now recognized by consumers as originating

from and being associated only with products originating from

the plaintiff CURRENT TECHNOLOGIES.

15. As a direct result of this usage, the unique and

distinctive "HYPE-WIPE" trademark has become well known and is

associated by the public with CURRENT TECHNOLOGIES, and

represents a business and good will of significant value.

16. The defendant HYPEWIPES has offered cleaning and

numerous other products in the United States and in the Southern

District of New York bearing the infringing designation

"HYPEWIPES".

AS AND FOR A FIRST CLAIM SEEKING

INJUNCTIVE AND MONETARY RELIEF FOR

TRADEMARK INFRINGEMENT (15 U.S.C §1114)

17. The plaintiff realleges paragraphs 1 through 16 as if

fully set forth herein.

18. The defendant HYPEWIPES' offering of cleaning and

numerous other products bearing the infringing designation

"HYPEWIPES" is without the permission, consent, or authorization

of the plaintiff CURRENT TECHNOLOGIES, constitutes trademark

infringement, and gives rise to a likelihood of confusion,

deception, and mistake among the public.


adopted and used the designation "HYPEWIPES" with the willful

purpose and intent of misleading the public and trading upon the

good will and reputation associated with CURRENT TECHNOLOGIES'

registered "HYPE-WIPE" trademark.

20. These acts violate the Trademark Act of the United

States and constitute infringement of CURRENT TECHNOLOGIES'

registered "HYPE-WIPE" trademark in violation of 15 U.S.C. §

1114, et seq.

21. On account of the defendant HYPEWIPES' activities, the

public is likely to be confused, misled or deceived as to the

source, origin or sponsorship of its products, and the plaintiff

has suffered irreparable injury, including injury to its

reputation and good will for which it has no adequate remedy at

law.

22. On account of the defendant HYPEWIPES' activities in

this State, County, and Southern District of New York, and in

interstate commerce, the plaintiff has been damaged in an amount

not as yet ascertained, but believed to be in excess of one

million dollars ($1,000,000.00).

AS AND FOR A SECOND CLAIM SEEKING INJUNCTIVE

AND MONETARY RELIEF FOR FALSE DESIGNATION OF

ORIGIN IN VIOLATION OF 15 U.S.C. § 1125(a)



24. The defendant HYPEWIPES' use of the "HYPEWIPES"

designation constitutes the offering of products bearing, and

the use of false and misleading descriptions and representations

of fact in interstate commerce, and violates the Trademark Act

of the United States.

25. By reason of the foregoing, the public is likely to be

confused, misled, or deceived, and CURRENT TECHNOLOGIES is now

and will continue to suffer irreparable injury, including injury

to its good will and reputation for which it has no adequate

remedy at law.


developed and used the "HYPEWIPES" designation with knowledge

that it was false, misleading, and deceptive, and with the

intent to unfairly compete with CURRENT TECHNOLOGIES.

27. On account of the activities of the defendant

HYPEWIPES in this State, County, and Southern District of New

York, the plaintiff has been damaged in an amount not as yet

ascertained, but believed to be in excess of one million dollars

($1,000,000.00) .

AS AND FOR A THIRD CLAIM SEEKING

INJUNCTIVE AND MONETARY RELIEF FOR UNFAIR

COMPETITION IN VIOLATION OF THE COMMON LAW



29. This cause of action arises under the common law.

30. The defendant HYPEWIPES' use of the "HYPEWIPES"

designation is misleading, is confusing the public, and creates

a likelihood of injury to CURRENT TECHNOLOGIES' public image and

reputation.

31. Upon information and belief, as a result of the

defendant HYPEWIPES' use of the "HYPEWIPES" designation the

public is likely to falsely associate the attributes and

characteristics of CURRENT TECHNOLOGIES' products to those of

HYPEWIPES.

32. By reason of the foregoing, the defendant HYPEWIPES

has engaged and is continuing to engage in acts of unfair

competition in violation of the common law.


adopted and is using the "HYPEWIPES" designation with knowledge

that it is misleading and with the intent to confuse, mislead,

and deceive consumers, and to unfairly compete with CURRENT

TECHNOLOGIES.

34. By reason of the foregoing, CURRENT TECHNOLOGIES is

now and will continue to suffer irreparable injury, including

injury to its good will and reputation for which it has no

adequate remedy at law.

35. On account of the activities of the defendant

HYPEWIPES in this State, County, and Southern District of New

York, and throughout the United States, the plaintiff has been

damaged in an amount not as yet ascertained, but believed to be

in excess of one million dollars ($1,000,000.00).

AS AND FOR A FOURTH

CLAIM FOR DECLARATORY RELIEF



37. There is an actual controversy between the plaintiff

CURRENT TECHNOLOGIES and the defendant HYPEWIPES concerning the

registerability of U.S. Trademark Application No. 85/932,829.

38. CURRENT TECHNOLOGIES seeks a declaratory judgment that

the mark that is the subject of U.S. Trademark Application No.

85/932,829, namely "HYPEWIPES", is confusingly similar to

CURRENT TECHNOLOGIES' registered "HYPE-WIPE" trademark, and for

8

an order directing the Commissioner of the United States Patent

and Trademark Office to reject the defendant's trademark

application because it fails to comply with one or more of the

requirements of registration.

WHEREFORE, CURRENT TECHNOLOGIES demands judgment:

1. preliminarily and permanently enjoining and

restraining the defendant HYPEWIPES, its agents, servants,

employees, successors and assigns, and all those acting in

concert or participation with it, from:

a. manufacturing, having manufactured, producing,

having produced, distributing, circulating, selling, offering

for sale, advertising, promoting, using or displaying cleaning

products, or any other product or service using any designations

confusingly similar to CURRENT TECHNOLOGIES' "HYPE-WIPE"

trademark, including but not limited to the "HYPEWIPES"

designation and the "HYPEWIPES.COM" Internet URL;

b. making any statement or representation

whatsoever, or using any false or misleading descriptions or

representations of fact in connection with the manufacture,

production, distribution, circulation, sale, offering for sale,

advertising, promotion, use, or display of cleaning products or

any other products or services using any marks confusingly

similar to CURRENT TECHNOLOGIES' "HYPE-WIPE" trademark,

including but not limited to the "HYPEWIPES" designation and the

"HYPEWIPES.COM" Internet URL; and

c. engaging in any other activity constituting

infringement of CURRENT TECHNOLOGIES' "HYPE-WIPE" trademark, or

unfair competition with CURRENT TECHNOLOGIES;

2. directing that the defendant HYPEWIPES, at its own

expense, recall all of its product and marketing, promotional,

and advertising material which bears or incorporates the

"HYPEWIPES" designation, or any designations confusingly similar

to CURRENT TECHNOLOGIES' "HYPE-WIPE" trademark, which have been

manufactured, distributed, sold or shipped by it;

3. directing that the defendant HYPEWIPES immediately

disable and cancel its registration of the "HYPEWIPES.COM"

Internet URL,

4. directing that the defendant HYPEWIPES deliver to

CURRENT TECHNOLOGIES' attorneys or representatives for

destruction all products, labels, signs, prints, packages,

molds, plates, dies, wrappers, receptacles, and advertisements

in its possession or under its control bearing the "HYPEWIPES"

designation and "HYPEWIPES.COM" Internet URL, or any

designations confusingly similar to CURRENT TECHNOLOGIES' "HYPE-

WIPE" trademark, and all plates, molds, matrices and any other

means of making the same;

10

5. directing that the defendant HYPEWIPES file with the

Court and serve on the CURRENT TECHNOLOGIES' counsel a report in

writing and under oath setting forth in detail the manner in

which it has complied with any temporary restraining order, or

preliminary or permanent injunction entered herein within thirty

(30) days of receipt of service of any such order or injunction;

6. directing such other relief as the Court may deem

appropriate to prevent the public from being misled or deceived;

7. awarding CURRENT TECHNOLOGIES its damages caused by

the defendant HYPEWIPES' manufacture, production, distribution,

circulation, sale, offering for sale, advertising, promotion,

use or display of cleaning products or any other product or

services bearing the "HYPEWIPES" designation, or any

designations confusingly similar to CURRENT TECHNOLOGIES' "HYPE-

WIPE" trademark, and HYPEWIPES' total profit realized thereby,

and that such award be trebled pursuant to 15 U.S.C. § 1114, et

seg. ;

8. for a declaration that the subject of U.S. Trademark

Application No. 85/932,829, namely "HYPEWIPES", is confusingly

similar to CURRENT TECHNOLOGIES' registered "HYPE-WIPE"

trademark, and for an order directing the Commissioner of the

United States Patent and Trademark Office to reject the

trademark registration;

11

9. for an assessment of costs, interest, and attorneys'

fees incurred by CURRENT TECHNOLOGIES; and

10. for such other and further relief as the Court deems

just.

Dated: June 27, 2014

New York, NY

12

ABELMAN FRAYNE & SCHWAB

jS4>Michael Aschen (MA 6336)

Norman D. Hanson

666 Third Avenue

New York, NY 10017

(212) 949-9022

Counsel for the Plaintiff

Documents

Current Technologies v. HypeWipes - Complaint