filed a lawsuit against Red Lobster. - · PDF fileUNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN MILWAUKEE WORLD FESTIVAL, INC., a Wisconsin Corporation, Plaintiff, v

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

MILWAUKEE WORLD FESTIVAL, INC.,

a Wisconsin Corporation,

Plaintiff,

v.

RED LOBSTER MANAGEMENT, LLC,

a Delaware Limited Liability Company,

Defendant.

Case No. ______________

COMPLAINT

Milwaukee World Festival, Inc. ("Milwaukee World Festival" or "Plaintiff"), by and

through its attorneys Reinhart Boerner Van Deuren s.c., for its complaint against Red Lobster

("Defendant"), hereby alleges as follows:

1. This is an action for trademark infringement and unfair competition brought

pursuant to the Lanham Act, 15 U.S.C. § 1114 and 15 U.S.C. § 1125(a), and Wisconsin common

law.

2. Milwaukee World Festival brings this suit to protect its long-held, valuable

interest in its SUMMERFEST trademark, federally registered since 1972 and in use since 1968

in connection with Summerfest, the World's Largest Music Festival.

3. Milwaukee World Festival has recently become aware that Defendant has begun

using the SUMMERFEST trademark in connection with its restaurant promotions, specifically

its "Lobster and Shrimp Summerfest," without permission or authorization from Milwaukee

World Festival.

Case 2:17-cv-00908 Filed 06/30/17 Page 1 of 17 Document 1

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4. This is not the first time that Defendant has misappropriated the SUMMERFEST

mark to promote its restaurant campaigns: in 2016, Defendant engaged in identical behavior by

running a promotion it called "Lobster and Shrimp Summerfest." To protect its intellectual

property, Milwaukee World Festival reached out to Defendant to demand that it cease and desist

infringing the SUMMERFEST mark, and Defendant eventually ceased its use of the

SUMMERFEST mark and rebranded its promotion to "Crabfest," without requiring Milwaukee

World Festival to resort to litigation.

5. Milwaukee World Festival has recently learned that this year, Defendant once

again has misappropriated the SUMMERFEST Mark in connection with its summertime

restaurant promotion, returning to the infringing "Lobster and Shrimp Summerfest."

6. Milwaukee World Festival has repeatedly reached out to Defendant to demand

that it cease its infringing activity, but Defendant has not only refused to stop using the

SUMMERFEST mark, it has also refused to engage in meaningful discussions in order to come

to a resolution of this matter.

7. This year, Summerfest began on June 28, 2017, and will run until July 9, 2017.

8. On information and belief, Defendant plans to continue its infringing use of

Milwaukee World Festival's mark throughout the entire period of Summerfest's 2017 festival.

9. Milwaukee World Festival is in need of immediate relief to prevent Defendant

from infringing the SUMMERFEST mark, causing substantial consumer confusion during the

2017 festival, and unjustly profiting off the goodwill associated with Summerfest.

THE PARTIES

10. Plaintiff Milwaukee World Festival is a Wisconsin corporation with its principal

place of business in Milwaukee, Wisconsin.


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11. On information and belief, Defendant Red Lobster is a Delaware limited liability

company with its principal place of business in Orlando, Florida.

JURISDICTION AND VENUE

12. This Court has subject matter jurisdiction over the present action pursuant to 15

U.S.C. § 1121 and 28 U.S.C. § 1331 and § 1338(a) and (b) in that it involves claims arising

under the federal Lanham Act.

13. This Court also has supplemental jurisdiction over Milwaukee World Festival's

state law claim pursuant to 28 U.S.C. § 1367, because it is so related to the Lanham Act claims

that it forms part of the same Article III case or controversy.

14. This Court has personal jurisdiction over Defendant because Defendant has

purposefully availed itself of the laws of the State of Wisconsin by directing its infringing

promotion and advertisements into that State.

15. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), in that a

substantial part of the events giving rise to Milwaukee World Festival's claims occurred in this

district.

BACKGROUND OF SUMMERFEST AND THE SUMMERFEST MARK

16. Milwaukee World Festival is the owner and producer of Summerfest, an eleven-

day music festival that has occurred annually in Milwaukee, Wisconsin, for the past forty-nine

years. This year, 2017, marks the festival's fiftieth anniversary.

17. Summerfest is a well-established part of Wisconsin culture and attracts hundreds

of thousands of visitors per year from all over the United States. In 2016, a total of 804,116

people attended Summerfest.


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18. Summerfest also attracts world-renowned entertainers to perform at its festival.

For example, Summerfest has featured (or will feature this year) such performers as Paul

McCartney, Paul Simon, Bob Dylan, Stevie Wonder, and the Rolling Stones.

19. In connection with its operation and production of Summerfest, Milwaukee World

Festival owns a number of trademarks.

20. One such trademark is SUMMERFEST, Registration No. 0940211 (the

"SUMMERFEST Mark"), for use in connection with "arranging and conducting an annual

summer entertainment festival." A true and correct copy of Milwaukee World Festival's

trademark registration for the SUMMERFEST Mark is attached to this Complaint as Exhibit A.

21. The SUMMERFEST Mark has been federally registered since August 1, 1972 and

has been in continuous use by Milwaukee World Festival since February 1968.

22. The Summerfest festival, and the SUMMERFEST Mark are well-known

throughout the United States and are particularly famous in the immediate vicinity in which

Summerfest operates, a territory including Wisconsin and northern Illinois.

23. Milwaukee World Festival advertises Summerfest through a variety of media,

including radio, television, print, and internet advertising.

24. The SUMMERFEST Mark is valuable to Milwaukee World Festival and

represents a valuable asset in Plaintiff's business.

25. As part of operating Summerfest, Milwaukee World Festival offers a variety of

food and beverage options at the festival through various vendors.

26. Milwaukee World Festival authorizes these vendors to use the SUMMERFEST

Mark in promoting their goods in conjunction with the festival. Such authorizations are short-


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term and expire upon termination of the food and beverage agreements that exist between

Summerfest and its vendors.

27. Milwaukee World Festival also enters into sponsorship agreements with other

restaurants, which pay for the right to use the SUMMERFEST Mark for a limited time.

DEFENDANT'S 2016 INFRINGEMENT

28. In June of 2016, just days before Summerfest was scheduled to open, Milwaukee

World Festival became aware that Defendant was running a food promotion under the

confusingly similar name "Lobster and Shrimp Summerfest."

29. Defendant was not authorized to use the SUMMERFEST Mark in connection

with its promotion, nor had it paid for the right to use the SUMMERFEST Mark for a limited

time.

30. Defendant's use of the SUMMERFEST Mark in connection with its "Lobster and

Shrimp Summerfest" engendered actual confusion, with numerous city officials and business

leaders inquiring whether there was an affiliation between Plaintiff and Defendant.

31. On or about June 16, 2016, Milwaukee World Festival contacted Defendant to

apprise it of its infringement and to demand that Defendant cease and desist its unauthorized use

of the SUMMERFEST Mark. A true and correct copy of Plaintiff's June 16, 2016 letter is

attached hereto as Exhibit B.

32. On or about June 17, 2016, Defendant responded and denied infringing

Milwaukee World Festival's SUMMERFEST Mark. A true and correct copy of Defendant's June

17, 2016 letter is attached hereto as Exhibit C.


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33. The parties exchanged three more letters, dated June 21, 2016; June 24, 2016; and

July 8, 2016. True and correct copies of these letters are attached hereto as Exhibits D, E, and

F, respectively.

34. Defendant did not respond to Milwaukee World Festival's July 8 letter.

35. Nevertheless, following this correspondence, Defendant ceased its use of the

SUMMERFEST Mark and rebranded its promotional event as "Crabfest."

DEFENDANT'S 2017 INFRINGEMENT

36. In or about May of 2017, Milwaukee World Festival became aware that

Defendant was once again advertising a summertime food promotion under the name "Lobster

and Shrimp Summerfest."

37. The "Lobster and Shrimp Summerfest" name appropriates the SUMMERFEST

Mark wholesale, without alteration.

38. Defendant is advertising the promotion nationwide via a variety of media,

including, upon information and belief, radio, television, print, and internet advertising.

39. Consumers are likely to believe that Defendant's promotion is affiliated with,

sponsored by, or otherwise associated with Milwaukee World Festival and Summerfest due to

Defendant's use of the SUMMERFEST mark.

40. As was the case in 2016, Defendant is not authorized to use the SUMMERFEST

Mark in connection with its promotion, nor has it paid for the right to use the SUMMERFEST

Mark for a limited time.

41. Accordingly, on June 6, 2017, Milwaukee World Festival contacted Defendant to

apprise it of its infringement, demand that Defendant cease and desist its infringing use of the

SUMMERFEST Mark, and request that Defendant return to the "Crabfest" mark or employ an


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alternative non-infringing mark. A true and correct copy of Plaintiff's June 6, 2017 letter is

attached hereto as Exhibit G.

42. On June 9, 2017, Defendant responded, denying that it was infringing Milwaukee

World Festival's SUMMERFEST Mark and referring Plaintiff to its June 17, 2016

correspondence. A true and correct copy of Defendant's June 9, 2017 letter is attached hereto as

Exhibit H.

43. On June 22, 2017, Milwaukee World Festival wrote to Defendant, again requiring

that Defendant cease its infringing use of the SUMMERFEST Mark and explaining Plaintiff's

position. A true and correct copy of Plaintiff's June 22, 2017 letter is attached hereto as Exhibit

I.

44. On June 23, 2017, counsel for Defendant responded via e-mail. The body of that

e-mail stated, in its entirety:

I understand that you sent me a letter regarding our Lobster & Shrimp

Summerfest promotion. I will respond after I return to the office on July 5th.

A true and correct copy of Defendant's June 23 e-mail is attached hereto as Exhibit J.

45. Defendant's use of the SUMMERFEST Mark in connection with its food

promotion is highly likely to cause consumer confusion in the marketplace.

46. Despite receiving notice of Milwaukee World Festival's intellectual property

rights and the harm caused by Defendant's infringement, Defendant has continued to use the

SUMMERFEST Mark without authorization and over Milwaukee World Festival's written

objections.

47. On information and belief, Defendant's continued use of the SUMMERFEST

Mark is willful and intentional, done for the purpose of trading upon the valuable goodwill and

public recognition that Milwaukee World Festival has established in the SUMMERFEST Mark.


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48. Absent immediate relief, upon information and belief, Defendant will continue to

use the SUMMERFEST Mark in connection with its food promotion throughout the course of

the 2017 Summerfest festival, engendering substantial confusion in the marketplace.

COUNT I -

TRADEMARK INFRINGEMENT UNDER THE LANHAM ACT, 15 U.S.C. § 1114(1)(a)

49. Plaintiff repeats and incorporates by reference each and every allegation

contained in the paragraphs above with the same force and effect as if said allegations were fully

set forth herein.

50. Plaintiff is the owner of the SUMMERFEST Mark, Federal Registration No.

0940211.

51. The SUMMERFEST Mark has been registered in the principal register since

August 1, 1972 and has developed incontestable status under 15 U.S.C. § 1065.

52. Defendant is presently using the SUMMERFEST Mark in commerce in

connection with the sale, offering for sale, and advertising of goods.

53. Plaintiff has not consented to or authorized Defendant's use of the

SUMMERFEST Mark.

54. Defendant's use of the SUMMERFEST Mark is likely to cause confusion, cause

mistake, or deceive consumers:

a. Defendant has misappropriated the SUMMERFEST Mark without alteration.

b. The marks are confusingly similar in terms of how they will be encountered in

the marketplace.

c. The goods and services in connection with which Defendant is using the

SUMMERFEST Mark are similar to Plaintiff's such that consumers are likely


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to believe they come from the same source, or that Defendant's goods and

services are sponsored or endorsed by Plaintiff. Summerfest already offers

food and beverage services through its approved vendors, many of whom are

authorized to use the SUMMERFEST Mark on a temporary basis. Consumers

are likely to believe that Defendant is one of those vendors.

d. There is substantial overlap in the area and manner of use of the marks. Both

parties advertise in the same channels, including in the Wisconsin-Northern

Illinois market where the SUMMERFEST Mark is most famous.

e. Consumers are unlikely to exercise substantial care in the purchase of

Defendant's goods and services.

f. The SUMMERFEST Mark is strong.

g. Defendant's misappropriation of the SUMMERFEST Mark in 2016

engendered numerous instances of actual consumer confusion.

h. On information and belief, Defendant's use of the SUMMERFEST Mark is a

willful and intentional attempt to trade off the goodwill and fame that Plaintiff

has established in the SUMMERFEST Mark by creating the impression that

Defendant's promotion is affiliated with, authorized by, or sponsored by

Summerfest.

55. As a result of Defendant's conduct, Plaintiff has suffered and will continue to

suffer damages.


suffer substantial and irreparable harm, including the ability to control the consumer perception

of its goods and services, the loss of goodwill and reputation it has established in the


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SUMMERFEST Mark, and the ability to control the food and beverage vendors with whom it

partners.

57. Upon information and belief, Defendant's infringement of the SUMMERFEST

Mark is knowing, intentional, and willful.

58. Defendant will be unjustly enriched as a result of its unauthorized use of the

SUMMERFEST Mark.

59. An award of Defendant's profits is necessary to deter Defendant from again

misappropriating Plaintiff's SUMMERFEST Mark.

60. The intentional nature of the aforementioned acts renders this an exceptional case

under 15 U.S.C. § 1117(a).

61. Milwaukee World Festival will continue to suffer irreparable harm unless this

Court enjoins Defendant's conduct.

COUNT II -

UNFAIR COMPETITION UNDER THE LANHAM ACT, 15 U.S.C. § 1125(a)



set forth herein.

63. Plaintiff's right to use the SUMMERFEST Mark is incontestable.

64. Plaintiff has also established federal common law rights in the SUMMERFEST

Mark based on continuous use of that mark in connection with its annual entertainment festival

since February 1968.

65. On information and belief, Plaintiff's use of the SUMMERFEST Mark predates

Defendant's by approximately forty-eight years.


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66. Defendant is presently using the SUMMERFEST Mark in commerce in

connection with the sale, offering for sale, and advertising of goods.


SUMMERFEST Mark.





the marketplace.








d. There is substantial overlap in the area and manner of use of the marks. Both

parties advertise in the same channels, including in the Wisconsin-Northern

Illinois market where the SUMMERFEST Mark is most famous.



f. The SUMMERFEST Mark is strong.


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Summerfest.


suffer damages.


suffer substantial and irreparable harm, including the ability to control the consumer perception

of its goods and services, the loss of goodwill and reputation it has established in the

SUMMERFEST Mark, and the ability to control the food and beverage vendors with whom it

partners.




SUMMERFEST Mark.

73. An award of Defendant's profits is necessary to deter Defendant from again

misappropriating Plaintiff's SUMMERFEST Mark.

74. The intentional nature of the aforementioned acts renders this an exceptional case

under 15 U.S.C. § 1117(a).


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COUNT III -

COMMON LAW TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION



set forth herein.

77. The SUMMERFEST Mark is a protectable trademark.

78. Plaintiff has established common law rights in the SUMMERFEST Mark based

on continuous use of that mark in connection with its annual entertainment festival in

Milwaukee, Wisconsin since February 1968.

79. On information and belief, Plaintiff's use of the SUMMERFEST Mark predates

Defendant's by approximately forty-eight years.

80. Defendant is presently using the SUMMERFEST Mark in the State of Wisconsin

in connection with the sale, offering for sale, and advertising of goods.


SUMMERFEST Mark.





the marketplace.




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d. There is substantial overlap in the area and manner of use of the marks within

the Wisconsin market and throughout the United States.



f. The SUMMERFEST Mark is strong. The Summerfest music festival is well-

established in the State of Wisconsin and is celebrating its fiftieth anniversary

of operation this year.







Summerfest.


suffer damages, alongside substantial and irreparable harm, including the ability to control the

consumer perception of its goods and services, the loss of goodwill and reputation it has


15

established in the SUMMERFEST Mark, and the ability to control the food and beverage

vendors with whom it partners.


SUMMERFEST Mark.





JURY DEMAND

87. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff requests

a jury trial of all issues that may be tried to a jury in this action.

REQUEST FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment:

A. Preliminarily and permanently enjoining and restraining Defendant, its

employees, agents and representatives, and all persons acting in concert or in participation with

them, from using on or in connection with any business, service, or the sale, offering for sale,

distribution, advertising, promotion, labeling, or packaging, of any services or goods, or from

using for any commercial purpose whatsoever, the SUMMERFEST Mark or any other name

confusingly similar to the SUMMERFEST Mark, including but not limited to "Lobster and

Shrimp Summerfest";

B. Requiring Defendant to deliver up to the Court for destruction, or to show proof

(upon the oath of Defendant made subject to penalty of perjury) of said destruction, of any and

all products, promotional and business materials, and all other matter in the possession, custody,


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or control of Defendant or its agents, distributors, or franchisees, including any materials posted

on Defendant's website, which bear or depict the SUMMERFEST Mark or any other name

confusingly similar to the SUMMERFEST Mark, including but not limited to "Lobster and

Shrimp Summerfest";

C. Directing Defendant to recall any products and advertising and promotional

materials bearing any matter in violation of any injunction entered in this action, or bearing or

depicting the SUMMERFEST Mark or any other name confusingly similar to the

SUMMERFEST Mark, including but not limited to "Lobster and Shrimp Summerfest";

D. Directing Defendant to account to Plaintiff for its profits and ordering that

Plaintiff shall recover from Defendant all of its damages, reasonable attorneys' fees and costs

arising from the foregoing acts, and a sum equal to three times these profits and damages,

pursuant to 15 U.S.C. § 1117;

E. Awarding to Plaintiff its actual, compensatory, consequential, and incidental

damages, in an as-yet undetermined amount, resulting from the acts of Defendant complained of

herein, and that such damages be trebled;

F. Awarding Plaintiff exemplary damages against Defendant in an amount sufficient

to deter similar future conduct;

G. Awarding Plaintiff the costs of this action, including expert witness fees, in

accordance with applicable law;

H. Awarding Plaintiff prejudgment and post-judgment interest on any monetary

award according to the maximum allowable legal rate; and

I. Awarding Plaintiff such other and further relief as this Court may deem just and

proper.


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Dated this 30th day of June, 2017.

s/ Jessica H. Polakowski

Jessica H. Polakowski

WI State Bar ID No. 1061368

[email protected]

Monica A. Mark

WI State Bar ID No. 1082428

[email protected]

Reinhart Boerner Van Deuren s.c.

P.O. Box 2018

Madison, WI 53701-2018

Telephone: 608-229-2200

Facsimile: 608-229-2100

Attorneys for Plaintiff, Milwaukee World

Festival, Inc.


AO 440 (Rev. 06/12) Summons in a Civil Action

UNITED STATES DISTRICT COURT for the

Eastern District of Wisconsin

)

)

)

) Plaintiff(s) )

v. ) Civil Action No.

)

)

)

) Defendant(s) )

SUMMONS IN A CIVIL ACTION

To: (Defendant’s name and address)

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you receive it) – or 60 days if you are

the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P.

12(a)(2) or (3) – you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the

Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or the plaintiff’s attorney, whose

name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.

You also must file your answer or motion with the court.

STEPHEN C. DRIES, CLERK OF COURT

Date: Signature of Clerk or Deputy Clerk

Case 2:17-cv-00908 Filed 06/30/17 Page 1 of 2 Document 1-1

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)

Civil Action No.

PROOF OF SERVICE

(This section should not be filed with the court unless required by Fed. R. Civ. P. 4(l))

This summons and the attached complaint for (name of individual and title, if any):

were received by me on (date) .

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on (date) ; or

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, a person of suitable age and discretion who resides there,

on (date) , and mailed a copy to the individual’s last known address; or

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who is designated by law to accept service of process on behalf of (name of organization)

on (date) ; or

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My fees are $ for travel and $ for services, for a total of $

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Date:

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Additional information regarding attempted service, etc.:


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mmark

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injunctive relief; damages

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Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or

multidistrict litigation transfers.

Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.

Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.

PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to

changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional

statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.

Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.

Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket

numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.











































Documents

filed a lawsuit against Red Lobster. - · PDF fileUNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN MILWAUKEE WORLD FESTIVAL, INC., a Wisconsin Corporation, Plaintiff, v