Piecurious Lawsuit

Piecurious, LLC, v. Pizza Inn, Inc., et al. COMPLAINT Page-1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

____________________________________ PIECURIOUS, LLC, § § Plaintiff, § § Civil Action:_________________ v. § § PIZZA INN, INC., § PIZZA INN HOLDINGS, INC., and § PIE FIVE PIZZA COMPANY, INC., § § Defendants. § ____________________________________§

COMPLAINT

Piecurious, LLC (“Piecurious”), Plaintiff, files this Complaint against Pizza Inn, Inc.,

Pizza Inn Holdings, Inc., and Pie Five Pizza Company, Inc. (collectively “Defendants”), and

would respectfully show the Court as follows:

SUMMARY

1. This is a civil action for trademark infringement under the Lanham Act, 15 U.S.C.

§§ 1114, 1125(a) and Texas state law. Piecurious is in the business of baking and selling

specialty pies in Dallas, Texas, to high end and boutique type restaurants and individuals. Its

products are unique and are considered delicacies that command a premium price. To protect its

business and preserve the value of its name, Piecurious applied for and obtained a federally

registered trademark for the mark “PIECURIOUS.” Piecurious filed its trademark application

with the United States Patent and Trademark Office in May 2011 and continued to do what it

does best, bake and market pies in Dallas. Its application for a federally protected trademark was

granted on December 27, 2011, having federal registration no. 4,076,978.

Case 3:12-cv-00719-O Document 1 Filed 03/09/12 Page 1 of 15 PageID 1


2. What happened in between the time it filed for its trademark and the time it was

granted, however, is a sad case of a large public company using its superior resources and a

thuggish mentality to effectively destroy any current value of the mark to its owner. Pizza Inn,

Inc., itself the owner of several trademarks, decided to expand its business model and launch its

Pie Five Pizza Co. (“Pie Five”) concept. In June 2011, with much hoopla and fanfare, Pie Five

opened its first store in Fort Worth. After tasting some success with the new concept, Pizza Inn

then decided to expand its Pie Five operations in the Dallas-Fort Worth Metroplex to include

nine stores by June 2012.

3. Along the way, however, Pizza Inn willfully misappropriated the PIECURIOUS

trademark and refused to discontinue its use the trademark despite repeated demands. Pizza

Inn’s abuse of Piecurious’s mark caused Piecurious to lose sales and customers, caused

substantial confusion among customers in the market place and will take substantial effort and

marketing resources to repair.

4. Pizza Inn’s willful disregard of Piecurious’ mark was amply demonstrated by its

placing a billboard advertisement on I-75 in North Dallas within approximately one mile of

Piecurious’ place of business. Despite repeated demands to immediately desist from its

continued use of the mark, particularly on this billboard, Pizza Inn’s response was that it would

“phase out” its use of Plaintiff’s mark “within 30 days.” And, despite numerous demands that

Pizza Inn, through its Pie Five operations cease to use or display Piecurious’ trademark in any

form, including on its highly touted social media Internet sites, Pizza Inn brazenly continues to

display the mark to this day.

5. Pizza Inn’s cavalier approach and dismissive attitude toward a Dallas

entrepreneur trying to earn a living and realize the same American dream already enjoyed by



Pizza Inn has left Piecurious no choice but to bring this action to seek injunctive relief and

monetary damages.

JURISDICTION

6. The Court has jurisdiction over this action pursuant to the Lanham Act, 15 U.S.C.

§§ 1114, 1121 and 1125(a) and 28 U.S.C. §§ 1331 and 1367.

7. Venue in proper in the Northern District of Texas pursuant to 28 U.S.C. §

1391(b)(1) because Defendants are doing business within this judicial district and a substantial

part of the events giving rise to the claims asserted arose in this district.

PARTIES

8. Plaintiff is a Texas Limited Liability Company having its principal place of

business in Dallas, Texas.

9. Pizza Inn Holdings, Inc., is a publicly held company organized under the laws of

Missouri with its principal place of business located at 3551 Plano, Parkway, The Colony, Texas,

75056. Its shares are traded on the NASDAQ under the symbol “PZZI.” Pizza Inn Holding

Company, Inc., was recently formed as a holding company with Pizza Inn, Inc. and Pie Five

Pizza Company as wholly owned subsidiaries. It may be served with process by serving its

registered agent for service of process, National Registered Agents, Inc., 300-B East High Street,

Jefferson City, Mo., 65101. As described in its most recent Form 10-Q, filed with the U.S.

Securities and Exchange Commission on February 8, 2012, Pizza Inn reorganized its operations

for its convenience, but directly owns and controls the Pie Five Pizza Co. stores through its

wholly owned subsidiary for its own use and enjoyment. Accordingly, it and its subsidiaries are

proper parties to this action.



10. Pizza Inn, Inc., is a Missouri corporation with its principal place of business

located at 3551 Plano, Parkway, The Colony, Texas, and a wholly owned subsidiary of Pizza Inn

Holdings, Inc. It may be served with process by serving its registered agent for service of

process, National Registered Agents, Inc., at 16055 Space Center, Suite 235, Houston, Texas,

77062.

11. Pie Five Pizza Company, Inc. (“Pie Five”), is a Texas domestic corporation with

its principal place of business located at 3551 Plano, Parkway, The Colony, Texas, and a wholly

owned subsidiary of Pizza Inn Holdings, Inc. It may be served with process by serving its

registered agent for service of process, National Registered Agents, Inc., at 16055 Space Center,

Suite 235, Houston, Texas, 77062.

BACKGROUND FACTS

12. Piecurious is in the business of baking and selling specialty pies in the Dallas,

Texas, area. It filed its articles of incorporation with the State of Texas on February 10, 2011.

On or about May 18, 2011, Piecurious filed for trademark protection over the name

“PIECURIOUS” claiming first use of commerce on February 9, 2011. The mark was published

for opposition on October 11, 2011, and registered December 27, 2011, with federal registration

no. 4,076,978.

13. Piecurious is a small business that manufactures and sells specialty products to

high end and boutique restaurants and individuals in the Dallas community. The company has

also gained a consumer customer base through word of mouth and social media efforts. Plaintiff

initially enjoyed immediate success in the Dallas market and for the first several months of its

existence continued to grow and expand. Piecurious was the subject of at least two articles

appearing in D Magazine and Edible Magazine for its high-end, fresh farm-to-table pies, which



helped build its brand and reputation in the Dallas market. Its business was severely and

negatively affected, however, after Defendants began to make use of its trademark and cause

confusion in the marketplace.

14. On information and belief, Defendants began to use the word “PIE-CURIOUS” in

connection with their Pie Five operations in or around September or October 2011. Defendants

caused their employees to wear tee shirts with “PIE-CURIOUS” on the shirt at their Pie Five

stores. Defendants distributed photographs of their employees wearing the tee shirts, or allowed

the taking of photographs of their employees wearing the tee shirts, to online news outlets and

posted these images on their social media websites, such as Facebook and Twitter. Additionally,

Defendants utilized other forms of advertising incorporating the word “PIE-CURIOUS” as a part

of their advertising, including signs in their stores, billboards along prominent highways in the

Dallas-Fort Worth Metroplex, and through newspaper and radio advertisements.

15. In early November 2011, after learning of the Defendants’ media efforts using the

company’s name in its advertising, Kate Nelson, the managing member of the company notified

Pie Five’s Compliance Officer, who also is Pizza Inn Holdings’ Compliance Officer (the

“Compliance Officer”), of Pie Five’s unauthorized use of the “PIECURIOUS” trademark.

Nelson complained, in particular, that the marks were being displayed on billboards in Denton

and Dallas counties. In response to this complaint, the Defendants refused to cease using the

trademark and instead unsuccessfully attempted to negotiate a license of the mark.

16. By November 18, 2011, Piecurious had received approximately 30 telephone calls

from clients that became upset after learning that the billboards displaying the name “Pie-

Curious” were for pizza, not the specialty pies made and sold by Piecurious. Plaintiff further



received many e-mails from customers that were confused about whether Piecurious was now in

the pizza business.

17. On or about November 21, 2011, Piecurious, sent the Compliance Officer a letter

demanding that Pie Five and Pizza Inn cease-and-desist from all unauthorized use of the name

“PIECURIOUS” in any form, including on billboards, tee-shirts, online and periodical

advertising of any kind. Instead of ceasing the misuse of the mark, Pizza Inn announced the

opening of a new Pie Five location on I-75 and Knox street. Prominently displayed on a

billboard within approximately one mile of Piecurious’s store was one of many billboards in the

Dallas-Fort Worth Metroplex using yet another derivation of Plaintiff’s mark, using the lower

cased form of “pie-curious” and confusing Plaintiff’s business with the sale of pizza (collectively

the “Infringing Marks”). The photograph below, which is a true and correct photograph of the

billboard at the time the photo was taken, clearly shows the nature of the problem.



18. On or about November 22, 2011, a further demand was made on the Defendants

to cease-and-desist from the continued use of the trademark in any and all forms of media. Also,

on or about November 22, 2011, Piecurious was notified by one of its corporate restaurant

customers that it intended to cease selling its products due to customers seeking Piecurious pizza

in its restaurant, rather than Plaintiff’s specialty pie products.

19. In response to the numerous demands to cease using Plaintiff’s trademark,

Defendants brazenly and willfully demonstrated their intent to continue to misuse the

PIECURIOUS mark. On December 2, 2011, the Defendants advised Plaintiff that they would

“phase out” their flagrant use of the mark “within 30 days.” Accordingly, Defendants continued

to use Plaintiff’s mark over the next thirty days, continuing to compound the problem, generating

additional confusion in the market and further diminishing the value of the mark to the Plaintiff.

20. On or about December 16, 2011, Defendants represented that they had undertaken

steps to phase out their use of the Plaintiff’s mark in their radio advertisements Defendants

further purportedly removed images containing “PIE-CURIOUS” from their Facebook pages,

asked their contractor to remove PIE-CURIOUS signage in restaurants by December 23, 2011,

and confirmed that employee tee shirts with the PIE-CURIOUS logo were removed from Pie

Five stores on or by December 12, 2011. Additionally, Defendants represented that they had

caused the removal of the offensive and confusing billboards on or by December 15, 2011.

Despite these representations, images of employees wearing tee shirts bearing the PIE-

CURIOUS logo continue to appear and be displayed on the Defendants’ social media websites.

On December 24, 2011, the images below were displayed on Pie Five’s Facebook page

prominently displaying Plaintiff’s mark:



The image immediately above showing employees wearing “pie-curious” tee-shirts remained on

the Pie Five’s Facebook page as late as January 30, 2012.

21. Defendants’ ineffective efforts to refrain from using Plaintiff’s mark is

compounded by other media outlets continuing to display images of the mark in a way that is

associated with pizza. For instance, in an article written by a local magazine about Pie Five

pizza, an image displaying the PIE-CURIOUS mark continues to appear in the article as of the

date of this Complaint.

22. The Defendants’ use of the Plaintiff’s trademark has caused and will continue to

cause damage to the Plaintiff. Despite assurances that they would “phase out” the use of the



mark, photos of advertising using the Infringing Marks continue to appear on Internet websites

under the Defendants’ control. For example, the photograph below remains viewable on

Defendants’ Twitter page as of the date of this Complaint:

Instead of trying to redress the damage done to the value of this mark, Defendants’ persistent and

willful misuse of the trademark has necessitated this action. Plaintiff has performed, or such

have occurred, all conditions precedent to the filing of this action.

CLAIMS

COUNT I Trademark Infringement under 15 U.S.C. § 1114

23. Plaintiff incorporates paragraphs 1-22 as if set forth verbatim.



24. Plaintiff is the owner of the “PIECURIOUS” mark. Plaintiff’s registration is

valid, subsisting, and in full force and effect. Plaintiff’s registration constitutes prima facie

evidence of the validity of the mark in connection with its business activities in the Dallas,

Texas, area as well as nationwide. In addition, Plaintiff’s registration provides constructive

notice to others of Plaintiff’s claim to ownership of the PIECURIOUS mark.

25. Plaintiff’s use of the mark was readily available to be found via the Internet as

Plaintiff posted the mark on Facebook, Twitter, and Plaintiff’s own website.

26. Through Plaintiff’s use and promotion of the PIECURIOUS mark, the mark was,

prior to Defendants’ conduct, distinctive and recognized by the public as an identifier of Plaintiff

as the source of its specialty products.

27. Despite Plaintiff’s prior rights in and prior consumer recognition of the

PIECURIOUS mark as a source identifier, Defendants adopted and used the infringing PIE-

CURIOUS and “pie-curious” marks in connection with products that caused confusion or

mistake as to the products offered and sold by Plaintiff and Defendants.

28. Defendants’ advertising, promotion and sale of products using Infringing Marks

which are substantially similar to Plaintiff’s mark is likely to cause and has caused actual

confusion, mistake or deception among consumers as to the source, sponsorship, endorsement, or

authorization of Defendants’ products and constitutes infringement of Plaintiff’s federal rights in

the PIECURIOUS mark in violation of the Lanham Act, 15 U.S.C. § 1114.

29. Defendants’ use of the infringing mark is without authorization or consent of the

Plaintiff.



30. Defendants’ use of the infringing mark in connection with advertising and the sale

of pizza is likely to cause irreparable harm to Plaintiff, including but not limited to detriment and

diminution in value of the Plaintiff’s mark.

31. As a result of the aforesaid casts, Plaintiff is entitled to preliminary and permanent

injunctive relief to enjoin Defendants’ acts infringing the PIECURIOUS mark, to recover its

damages and Defendants’ gains, profits and advantages obtained as a result of the acts alleged

above and to recover treble damages and enhanced profits in an amount to be determined.

32. Defendants knew or had reason to know of Plaintiff’s use of the PIECURIOUS

mark and deliberately adopted a confusingly similar mark. Given that Defendants’ actions were

willful, deliberate and fraudulent, this is an exceptional case and Plaintiff is entitled to damages

and an award of reasonable attorney’s fees against Defendant.

COUNT II Trademark Infringement under 15 U.S.C. § 1125(a)


34. Defendants’ advertising, promotion and sale of pizza using the Infringing Marks

which are substantially similar to the PIECURIOUS mark constitutes infringement of Plaintiff’s

trademark rights, unfair competition, false designation of origin and false representations in the

PIECURIOUS mark. Defendants’ actions, wrongfully and falsely designating its products as

originating from, or connected with or authorized by Plaintiff, constitute utilization of false

descriptions or representations in interstate commerce, in violation of the Lanham Act, 15 U.S.C.

§ 1125(a).

35. Defendants’ use of the Infringing Marks was without the authorization or consent

of the Plaintiff.



36. Defendants’ use of the Infringing Marks in connection with the advertising and

sale of its Pie Five Pizza products is likely to cause and has caused irreparable harm to Plaintiff,

including but not limited to detriment and diminution in value of the PIECURIOUS mark.

37. As a result of the aforesaid casts, Plaintiff is entitled to preliminary and permanent

injunctive relief to enjoin Defendants’ acts infringing the PIECURIOUS mark, to recover its

damages and Defendants’ gains, profits and advantages obtained as a result of the acts alleged

above and to recover treble damages and enhanced profits in an amount to be determined.

38. Defendants knew or had reason to know of Plaintiff’s use of the PIECURIOUS

mark and deliberately adopted a confusingly similar mark. Given that Defendants’ actions were

willful, deliberate and fraudulent, this is an exceptional case and Plaintiff is entitled to damages

and an award of reasonable attorney’s fees against Defendant.

COUNT III Common Law Trademark Infringement


40. Plaintiff owns all rights, title and interest in and to the PIECURIOUS mark,

including all common law rights in such marks.

41. Defendants, without authorization from Plaintiff, have used and are continuing to

use spurious designations that are confusingly similar to the PIECURIOUS mark.

42. The foregoing acts of Defendants are intended to cause, have caused, and are

likely to continue to cause confusion, mistake, and deception among consumers, the public, and

the trade as to whether Defendants’ products origiante from, or affiliated with, sponsored by, or

endorsed by Plaintiff.



43. Upon information and belief, Defendants have acted with knowledge or Plaintiff’s

ownership of its mark and with deliberate intention ro willful blindness to unfairly benefit from

the goodwill symbolized thereby.

44. Defendants acts constitute trademark infringement in violation of the common

law of the State of Texas.

45. Defendants, despite repeated demands to desist from their infringing acts,

continue to persist in their conduct and will continue to do so unless restrained by this Court.

46. Defendants’ acts have damaged and will continue to damage Plaintiff.

COUNT IV Common Law Unfair Competition and Unjust Enrichment


48. Plaintiff’s PIECURIOUS mark acquired a secondary meaning identifying its

products in the mind of the public as that of the Plaintiff’s. Defendant’ use and benefit of

Plaintiff’s marks allowed it to obtain a ready customer acceptance of Defendants’ products, and

constitutes unfair competition, palming off and misappropriation in violation of Texas common

law.

49. Defendants’ use of the Infringing Marks, without authorization from Plaintiff, has

caused and will likely continue to cause harm to Plaintiff’s business reputation.

50. Defendants utilized their Infringing Marks in connection with the advertising and

sale of their Pie Five Pizza with no consideration or payment to Plaintiff.

51. Defendants’ conduct has caused and continues to cause injury to Plaintiff in the

use and enjoyment of its trademark and constitutes unfair competition.



52. Defendants received substantial profits and other benefits from their advertising

and sale of products through their Pie Five Pizza stores using the Infringing Marks. Those

profits and benefits, to the extent they were or are being generated by Defendants’ infringing use

of the PIECURIOUS mark, rightfully belong to and should have been received by Plaintiff. By

reason of the foregoing, Defendants were, or will be, unjustly enriched at Plaintiff’s expense in

an amount to be proven at trial.

COUNT V Attorneys Fees


54. Plaintiff is entitled to an award of reasonable attorneys fees and costs under 15

U.S.C. § 1117(a).

PRAYER FOR RELIEF

Plaintiff seeks the following relief of the Court:

A. An order of the Court preliminarily and permanently restraining and enjoining

Defendants from continued use of the PIECURIOUS mark in any form or derivation, including

the Infringing Marks, that are likely to cause confusion or mistake, or to deceive;

B. An order of the Court directing Defendants to deliver for destruction all articles of

merchandise, designs, signs, plaques, advertisements, packaging or any other materials in

Defendants’ possession or control which bear the Infringing Marks or any other marks

confusingly similar to Plaintiff’s PIECURIOUS mark;

C. An order of the Court directing Defendants to file with this Court and serve on

Plaintiff within 14 days after entry of such an order a report in writing, under oath, setting forth

in detail the manner of Defendants’ compliance;



D. An order requiring Defendants to account for and pay over to Plaintiff all gains,

profits and advantages derived by Defendants from Defendants’ infringement of the

PIECURIOUS mark;

E. An order requiring Defendants to pay damages to the Plaintiff in an amount

necessary to compensate Plaintiff for its losses caused by Defendants’ actions herein, including

the diminution in value of the PIECURIOUS mark and any other damages to which it may show

itself entitled;

F. An order directing Defendants to pay Plaintiff punitive damages, prejudgment

interest and attorneys’ fees as allowed by law;

G. An order granting Plaintiff such further and other relief to which it is entitled at

law or in equity.

Respectfully Submitted, /s/ Harold R. Loftin, Jr. Harold R. Loftin, Jr. Texas State Bar No. 12487090 Gary Solomon Texas State Bar No. 24010412 SNR DENTON US, LLP 2000 McKinney Ave., Ste. 1900 Dallas, Texas 75201 ATTORNEYS FOR PLAINTIFF


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JS 44 (Rev. 12/07) CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as providedby local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiatingthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS Piecurious, LLC

DEFENDANTS Pizza Inn, Inc., Pizza Inn Holdings, Inc. and Pie Five Pizza Company, Inc.

(b) County of Residence of First Listed Plaintiff Dallas County, Texas (EXCEPT IN U.S. PLAINTIFF CASES)

County of Residence of First Listed Defendant Denton County, Texas (IN U.S. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number) Harold R. Loftin, Jr., SNR Denton US LLP, 2000 McKinney Ave., Suite 1900, Dallas, Texas 75201, 214/259-0900

Attorneys (If Known)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff(For Diversity Cases Only) and One Box for Defendant)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

PTF DEF PTF DEF 1 U.S. Government

Plaintiff 3 Federal Question

(U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4

of Business In This State 4

Citizen of Another State 2 2 Incorporated and Principal Place 5 of Business In Another State

5 2 U.S. Government Defendant

4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen or Subject of a 3 Foreign Country

3 Foreign Nation 6 6

IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES

PERSONAL INJURY PERSONAL INJURY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157

PROPERTY RIGHTS

362 Personal Injury— Med. Malpractice 365 Personal Injury — Product Liability 368 Asbestos Personal Injury Product Liability

PERSONAL PROPERTY

610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other

820 Copyrights 830 Patent 840 Trademark

LABOR SOCIAL SECURITY

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury

370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability

REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS

861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))

FEDERAL TAX SUITS

710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

IMMIGRATION

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities - Employment 446 Amer. w/Disabilities – Other 440 Other Civil Rights

510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

462 Naturalization Application 463 Habeas Corpus –

Alien Detainee 465 Other Immigration

Actions

870 Taxes (U.S. Plaintiff or Defendant) 871 IRS—Third Party 26 USC 7609

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only) Transferred from Appeal to District 1 Original

Proceeding 2 Removed from

State Court 3 Remanded from

Appellate Court 4 Reinstated or

Reopened 5 another district

(specify)

6 Multidistrict Litigation

7 Judge from Magistrate Judgment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 15 U.S.C. §§ 1114, 1121 and 1125(a) VI. CAUSE OF ACTION Brief description of cause: Trademark infringement and unfair competition

VII. REQUESTED IN COMPLAINT:

CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: UNDER F.R.C.P. 23 JURY DEMAND: Yes No

VIII. RELATED CASE(S) IF ANY

(See instructions): DOCKET NUMBER

DATE 3/09/2012

SIGNATURE OF ATTORNEY OF RECORD /s/ Harold R. Loftin, Jr.

FOR OFFICE USE ONLY RECEIPT #

AMOUNT APPLYING IFP JUDGE MAG. JUDGE

Case 3:12-cv-00719-O Document 1-1 Filed 03/09/12 Page 1 of 2 PageID 16

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required

by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive.

V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date.

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. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision. 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

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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.

Case 3:12-cv-00719-O Document 1-1 Filed 03/09/12 Page 2 of 2 PageID 17

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Piecurious Lawsuit