UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

Transcription

1 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 1 of DANIEL R. FOSTER (Cal. Bar. No ) McDERMOTT WILL & EMERY LLP 4 Park Plaza, Suite 1700 Irvine, CA Telephone: (949) Facsimile: (949) dfoster@mwe.com JOHN J. DABNEY (to file pro hac vice application) KATIE BUKRINSKY (to file pro hac vice application) McDERMOTT WILL & EMERY LLP 500 North Capitol Street NW Washington, D.C Telephone: (202) Facsimile: (202) jdabney@mwe.com, kbukrinsky@mwe.com MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE Attorneys for Plaintiff The Brooklyn Brewery Corporation THE BROOKLYN BREWERY CORPORATION, a New York Corporation, v. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA Plaintiff, BLACK OPS BREWING, INC., a California Corporation, FRESNO DIVISION CASE NO. COMPLAINT FOR TRADEMARK INFRINGEMENT, FALSE DESIGNATION OF ORIGIN, UNFAIR COMPETITION, AND PASSING OFF 21 Defendant COMPLAINT Plaintiff The Brooklyn Brewery Corporation ( Plaintiff ) files this Complaint against Defendant Black Ops Brewing, Inc. ( Defendant ), and alleges as follows: COMPLAINT - 1 -

2 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 2 of 9 1 INTRODUCTION 2 1. Founded in 1987, Plaintiff is the largest brewer in New York and 3 among the twenty largest brewers in the United States. One of Plaintiff s most 4 popular beers is BROOKLYN BLACK OPS, a stout that Plaintiff has marketed 5 since at least as early as Plaintiff, consumers and others in the trade 6 commonly refer to the beer as BLACK OPS and Plaintiff has continuously 7 advertised, promoted and sold the beer as BLACK OPS for over eight years. 8 Plaintiff has sold tens of thousands of cases of beer under the marks BROOKLYN 9 BLACK OPS and BLACK OPS, and millions of customers throughout the United 10 States, including California, have been exposed to the brands. Plaintiff owns a MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE federal trademark registration for BROOKLYN BLACK OPS for beer. Plaintiff owns common law rights to the marks BROOKLYN BLACK OPS and BLACK OPS for beer. 2. This year, Defendant opened a brewery called BLACK OPS BREWING. Defendant applied to the U.S. Patent and Trademark Office ( PTO ) to register the mark BLACK OPS BREWING for beer and taproom services. On 17 July 1, 2015, the PTO rejected Defendant s application because Defendant s use of 18 BLACK OPS BREWING is likely to cause confusion with Plaintiff s registered 19 mark BROOKLYN BLACK OPS Nevertheless, Defendant continues to market and sell beer under the 21 marks BLACK OPS and BLACK OPS BREWING. In mid-july and late August , Plaintiff demanded that Defendant cease use of the marks. But Defendant 23 refused unless Plaintiff paid an exorbitant sum and thus forced Plaintiff to 24 commence this action. 25 THE PARTIES Plaintiff is a New York corporation with a primary place of business at North 11th St., Brooklyn, New York Plaintiff owns a federal registration 28 for BROOKLYN BLACK OPS for beer and common law marks for BLACK OPS COMPLAINT - 2 -

3 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 3 of 9 1 for beer and has used those marks in United States commerce continuously since at 2 least as early as Defendant is a California corporation with its primary place of 4 business at 2985 N. Burl, Suite 102, Fresno, California Defendant 5 advertises and sells beer, taproom services and related goods under the marks 6 BLACK OPS and BLACK OPS BREWING. 7 JURISDICTION AND VENUE 8 6. The Court has jurisdiction over the federal claims under 28 U.S.C and 28 U.S.C. 1338(a). The Court has jurisdiction over the state law claims 10 under 28 U.S.C. 1338(b) and 28 U.S.C. 1367(a). MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE The Court has personal jurisdiction over Defendant because it is incorporated in this District, has its primary place of business in this District, and is selling infringing goods and services in this District. 8. Venue is proper in this judicial district under 28 U.S.C. 1391(b)(1) and (2). PLAINTIFF AND ITS TRADEMARKS Founded in 1987, Plaintiff is the largest brewer of beer in New York, 18 and the 20th largest in the United States. Plaintiff s beer advertised under 19 BROOKLYN BLACK OPS and BLACK OPS is sold in 27 states including 20 Nevada Plaintiff is negotiating with distributors to commence distribution of 22 beer under the marks BROOKLYN BLACK OPS and BLACK OPS in California 23 and sales will commence in Plaintiff has sold beer under the marks BROOKLYN BLACK OPS 25 and BLACK OPS since at least as early Tens of thousands of cases of beer 26 branded with the marks BROOKLYN BLACK OPS and BLACK OPS has been 27 sold throughout much of the United States, and millions of customers have been 28 exposed to the brands, including customers in California. For over eight years, COMPLAINT - 3 -

4 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 4 of 9 1 Plaintiff has promoted its beer under the marks BROOKLYN BLACK OPS and 2 BLACK OPS throughout the United States on its website, through promotional 3 events and sponsorships, in print media, and via promotions conducted by its 4 nationwide distributors and retailers. Plaintiff s beer also receives substantial 5 unsolicited media coverage by beer-focused websites such as ratebeer.com (where 6 the beer has a rating of 100), beeradvocate.com (where the beer has a community 7 rating of 92), and Untapped (with a rating of 4.2/5), as well as nationally-distributed 8 publications including Men s Journal, Serious Eats, Gear Patrol, Beer Street 9 Journal, and Beer Knews. Plaintiff s beer sold under the marks BROOKLYN 10 BLACK OPS and BLACK OPS is frequently mentioned by consumers, retailers, MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE and media outlets on Facebook, Twitter, and Instagram and has been for over five years. 12. Plaintiff owns a federal trademark registration for BROOKLYN BLACK OPS, Registration No. 3,636,236, for beer, which issued in (Ex. 1.) Plaintiff s registration is incontestable under the Lanham Act, and thus conclusive evidence of Plaintiff s exclusive right to use this mark for beer in 17 United States commerce. 15 U.S.C. 1065, 1115(b) Plaintiff also owns common law rights to the marks BROOKLYN 19 BLACK OPS and BLACK OPS, due to its use of those marks for beer continuously 20 over eight years. Plaintiff s customers and others in the trade use the marks 21 BROOKLYN BLACK OPS and BLACK OPS interchangeably when referring to 22 Plaintiff s beer and have done so since Plaintiff s BROOKLYN BLACK OPS and BLACK OPS marks are 24 inherently distinctive, had acquired distinctiveness long before 2014, and are 25 recognized as designating beer manufactured exclusively by Plaintiff COMPLAINT - 4 -

5 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 5 of 9 1 DEFENDANT S BLACK OPS BREWING AND BLACK OPS MARKS Defendant opened a brewery earlier this year called BLACK OPS 3 BREWING and is using the marks BLACKS OPS and BLACK OPS BREWING 4 on its beer Defendant applied to register BLACK OPS BREWING for beer and 6 taproom services in the PTO The PTO rejected Defendant s application because it is confusingly 8 similar to Plaintiff s previously-registered BROOKLYN BLACK OPS mark. The 9 PTO found that Defendant s mark was highly similar in sound, appearance, 10 meaning and overall commercial impression to registrant s mark, BROOKLYN MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE BLACK OPS. (Ex. 2. (Emphasis added).) The PTO held that the parties goods were identical (beer), and that taproom services are related to beer. (Id.) The PTO held that [i]t is likely that consumers will mistakenly believe the goods and services emanate from the same source. (Id.) The PTO observed that [t]he overriding concern is not only to prevent buyer confusion as to the source of the goods and services, but to protect the [Plaintiff] from adverse commercial impact 17 due to use of a similar mark by a newcomer. (Id.) Nevertheless, Defendant continues to sell beer and taproom services 19 under the marks BLACK OPS and BLACK OPS BREWING and advertises its beer 20 and services on its web site at blackopsbrewing.com and on its Facebook page, 21 facebook.com/black-ops-brewing On July 20, 2015, Plaintiff sent Defendant a letter demanding that it 23 cease all use of BLACKS OPS and BLACK OPS BREWING. Defendant refuses 24 to stop unless Plaintiff pays an exorbitant sum of money Plaintiff renewed its demand on August 27, Defendant did not 26 respond Plaintiff s marks BROOKLYN BLACK OPS and BLACK OPS and 28 Defendants marks BLACK OPS and BLACK OPS BREWERY are substantially COMPLAINT - 5 -

6 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 6 of 9 1 similar in sight, sound, meaning and commercial impression. The parties goods 2 and services are identical with respect to Defendant s beer and highly related with 3 respect to Defendant s tap room services. Defendant s use of BLACK OPS and 4 BLACK OPS BREWING for beer and taproom services is likely to cause consumer 5 confusion, deception and mistake with regard to Plaintiff and Plaintiff s 6 BROOKLYN BLACK OPS and BLACK OPS marks. The public is likely to 7 believe that Defendant s goods and services are affiliated or connected with, or 8 endorsed, sponsored, approved, licensed or manufactured by, Plaintiff and 9 Plaintiff s beer sold under the mark BROOKLYN BLACK OPS and BLACK OPS Defendant has actual knowledge of Plaintiff s mark, and of the MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE likelihood of confusion between the parties marks, by virtue of the PTO s refusal to register Defendant s mark. But Defendant continues to use the marks BLACK OPS BREWING and BLACK OPS and plans to expand such use. Defendant is deliberately infringing Plaintiff s marks. 23. Plaintiff is being irreparably injured by Defendant s unlawful conduct. COUNT I 17 Trademark Infringement, Unfair Competition, False Designation of Origin 18 and Passing Off Under the Federal Lanham Act (15 U.S.C. 1114) Plaintiff re-alleges paragraphs 1 through 23 of the Complaint as if set 20 forth herein Plaintiff owns a federal registration for BROOKLYN BLACK OPS for 22 beer Defendant s promotion and sale of beer, tap room services and related 24 goods under the marks BLACK OPS and BLACK OPS BREWING causes a 25 likelihood of confusion, mistake, and deception with Plaintiff and Plaintiff s 26 BROOKLYN BLACK OPS mark and thus constitutes trademark infringement, 27 unfair competition, false designation of origin, and passing off under 15 U.S.C (1). COMPLAINT - 6 -

7 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 7 of Defendant s conduct is irreparably injuring Plaintiff. Plaintiff has no 2 adequate remedy at law. 3 COUNT II 4 Trademark Infringement, Unfair Competition, False Designation of Origin 5 and Passing Off Under the Federal Lanham Act (15 U.S.C. 1125) Plaintiff re-alleges paragraphs 1 through 23 of the Complaint as if set 7 forth herein Plaintiff owns common law marks for BROOKLYN BLACK OPS and 9 BLACK OPS for beer Defendant s promotion and sale of beer, tap room services and related MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE goods under the marks BLACK OPS and BLACK OPS BREWING causes a likelihood of confusion, mistake, and deception with Plaintiff and Plaintiff s BROOKLYN BLACK OPS and BLACK OPS marks and thus constitutes trademark infringement, unfair competition, false designation of origin, and passing off under 15 U.S.C. 1125(a). 31. Defendant s conduct is irreparably injuring Plaintiff. Plaintiff has no 17 adequate remedy at law. 18 COUNT III 19 Trademark Infringement, Unfair Competition False Designation of Origin and 20 Passing Off Under California Common Law Plaintiff re-alleges paragraphs 1 through 23 of the Complaint as if set 22 forth herein Plaintiff owns a common law and federally registered mark for 24 BROOKLYN BLACK OPS for beer. Plaintiff also owns a common law mark for 25 BLACK OPS Defendants promotion and sale of beer, tap room services and related 27 goods under the marks BLACK OPS and BLACK OPS BREWING causes a 28 likelihood of confusion, mistake, and deception with Plaintiff and Plaintiff s COMPLAINT - 7 -

8 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 8 of 9 1 BROOKLYN BLACK OPS and BLACK OPS marks and thus constitutes 2 trademark infringement, unfair competition, false designation of origin and passing 3 off under California common law Defendant s conduct is irreparably injuring Plaintiff. Plaintiff has no 5 adequate remedy at law. 6 COUNT IV 7 Unfair Competition Under Cal. Bus. & Prof. Code Plaintiff re-alleges paragraphs 1 through 23 of the Complaint as if set 9 forth herein Defendant s use of the marks BLACK OPS and BLACK OPS MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE BREWING in connection with the advertising, promotion and sale of beer, taproom services and related goods is likely to cause confusion, deception and mistake, and thus constitutes unfair competition under Cal. Bus. & Prof. Code Defendant s conduct is irreparably injuring Plaintiff. Plaintiff is suffering damage to its business reputation and goodwill. Plaintiff has no adequate remedy at law. 17 RELIEF REQUESTED 18 Plaintiff respectfully requests that this Court award: 19 a. An injunction preliminarily and permanently enjoining 20 Defendant, its directors, officers, partners, owners, employees, agents, affiliated or 21 otherwise related companies, suppliers, customers, successors and assigns, and all 22 those in active concert or having knowledge of the causes of action, from using 23 BLACK OPS, BLACK OPS BREWING, blackopsbrewery.com or any 24 confusingly similar mark; 25 b. An injunction directing Defendant to deliver to Plaintiff for 26 destruction all products, literature, signs, billboards, labels, prints, packages, 27 wrappers, containers, advertising materials, stationery, and other items in its 28 possession, custody or control bearing Defendant s infringing marks pursuant to 15 COMPLAINT - 8 -

9 Case 1:15-cv JAM-EPG Document 1 Filed 11/02/15 Page 9 of U.S.C. 1118; c. Plaintiff's reasonable attorneys' fees and costs; and d. Such other and further relief as the Court deems just and proper. Respectfully submitted, 6 McDERMOTT WILL & EMERY LLP MCDERMOTT WILL & EMERY LLP A TTORNEYS A T LAW IRVINE Dated: November 2, 2015 By: /s/ Daniel R. Foster DANIEL R. FOSTER (Cal. Bar. No ) McDERMOTT WILL & EMERY LLP 4 Park Plaza, Suite 1700 Irvine, CA Telephone: (949) Facsimile: (949) dfoster@mwe.com McDERMOTT WILL & EMERY LLP John J. Dabney (to apply for admission pro hac vice) Katie Bukrinsky (to apply for admission pro hac vice) McDERMOTT WILL & EMERY LLP 500 North Capitol Street NW Washington, D.C Telephone: (202) Facsimile: (202) jdabney@mwe.com; kbukrinsky@mwe.com 19 Attorneys for Plaintiff The Brooklyn Brewery Corporation COMPLAINT - 9 -

10 Case 1:15-cv JAM-EPG Document 1-1 Filed 11/02/15 Page 1 of 2 COMPLAINT EXHIBIT 1

11 Case 1:15-cv JAM-EPG Document 1-1 Filed 11/02/15 Page 2 of 2 Ex. 1, Pg. 1

12 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 1 of 59 COMPLAINT EXHIBIT 2

13 To: Subject: Sent: Sent As: Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 2 of 59 Black Ops Brewing, Inc. (jcampagne@campagnelaw.com) U.S. TRADEMARK APPLICATION NO BLACK OPS BREWING - N/A 7/1/ :05:37 AM ECOM106@USPTO.GOV Attachments: Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 Attachment - 12 Attachment - 13 Attachment - 14 Attachment - 15 Attachment - 16 Attachment - 17 Attachment - 18 Attachment - 19 Attachment - 20 Attachment - 21 Attachment - 22 Attachment - 23 Attachment - 24 Attachment - 25 Attachment - 26 Attachment - 27 Attachment - 28 Attachment - 29 Attachment - 30 Attachment - 31 Attachment - 32 Attachment - 33 Attachment - 34 Ex. 2, Pg. 1

14 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 3 of 59 Attachment - 35 Attachment - 36 Attachment - 37 Attachment - 38 Attachment - 39 Attachment - 40 Attachment - 41 Attachment - 42 Attachment - 43 Attachment - 44 Attachment - 45 Attachment - 46 Attachment - 47 UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO) OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT S TRADEMARK APPLICATION U.S. APPLICATION SERIAL NO MARK: BLACK OPS BREWING CORRESPONDENT ADDRESS: JUSTIN CAMPAGNE Campagne Campagne & Lerner 1685 N Helm Ave Fresno, CA * * CLICK HERE TO RESPOND TO THIS L VIEW YOUR APPLICATION FILE APPLICANT: Black Ops Brewing, Inc. CORRESPONDENT S REFERENCE/DOCKET NO : N/A CORRESPONDENT ADDRESS: jcampagne@campagnelaw.com OFFICE ACTION STRICT DEADLINE TO RESPOND TO THIS LETTER TO AVOID ABANDONMENT OF APPLICANT S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW. ISSUE/MAILING DATE: 7/1/2015 The referenced application has been reviewed by the assigned trademark examining attorney. Applicant must respond timely and completely to the issue(s) below. 15 U.S.C. 1062(b); 37 C.F.R. 2.62(a), 2.65(a); TMEP 711, Ex. 2, Pg. 2

15 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 4 of 59 SUMMARY OF ISSUES that applicant must address: Section 2(d) Refusal Likelihood of Confusion Prior-Filed Application Specimen Refused Advertising for Goods Specimen Refused Mark Not in Connection with Services Disclaimer SECTION 2(d) REFUSAL LIKELIHOOD OF CONFUSION Registration of the applied-for mark is refused because of a likelihood of confusion with the mark in U.S. Registration No Trademark Act Section 2(d), 15 U.S.C. 1052(d); see TMEP et seq. See the enclosed registration. Applicant s mark is BLACK OPS BREWING (in standard character form) for beer in International Class 032 and Taproom services featuring craft beer in International Class 043. Registrant s mark is BROOKLYN BLACK OPS (also in standard character form) for beer in International Class 032. Trademark Act Section 2(d) bars registration of an applied-for mark that so resembles a registered mark that it is likely a potential consumer would be confused, mistaken, or deceived as to the source of the goods and services of the applicant and registrant. See 15 U.S.C. 1052(d). A determination of likelihood of confusion under Section 2(d) is made on a case-by case basis and the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973) aid in this determination. Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 1349, 98 USPQ2d 1253, 1256 (Fed. Cir. 2011) (citing On-Line Careline, Inc. v. Am. Online, Inc., 229 F.3d 1080, 1085, 56 USPQ2d 1471, 1474 (Fed. Cir. 2000)). Not all the du Pont factors, however, are necessarily relevant or of equal weight, and any one of the factors may control in a given case, depending upon the evidence of record. Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d at 1355, 98 USPQ2d at 1260; In re Majestic Distilling Co., 315 F.3d 1311, 1315, 65 USPQ2d 1201, 1204 (Fed. Cir. 2003); see In re E. I. du Pont de Nemours & Co., 476 F.2d at , 177 USPQ at 567. In this case, the following factors are the most relevant: similarity of the marks, similarity and nature of the goods and services, and similarity of the trade channels of the goods and services. See In re Viterra Inc., 671 F.3d 1358, , 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Dakin s Miniatures Inc., 59 USPQ2d 1593, (TTAB 1999); TMEP et seq. Comparison of the Marks Marks are compared in their entireties for similarities in appearance, sound, connotation, and commercial impression. Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F. 3d 1369, 1371, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); TMEP (b)-(b)(v). Similarity in any one of these elements may be sufficient to find the marks confusingly similar. In re Davia, 110 USPQ2d 1810, 1812 (TTAB 2014) (citing In re White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988); In re 1st USA Realty Prof ls, Inc., 84 USPQ2d 1581, 1586 (TTAB 2007)); TMEP (b). When comparing marks, the test is not whether the marks can be distinguished in a side-by-side Ex. 2, Pg. 3

16 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 5 of 59 comparison, but rather whether the marks are sufficiently similar in terms of their overall commercial impression that confusion as to the source of the goods and services offered under the respective marks is likely to result. Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 1053, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012); In re Davia, 110 USPQ2d 1810, 1813 (TTAB 2014); TMEP (b). The proper focus is on the recollection of the average purchaser, who retains a general rather than specific impression of trademarks. United Global Media Grp., Inc. v. Tseng, 112 USPQ2d 1039, 1049, (TTAB 2014); L Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); TMEP (b). In this case, applicant s mark, BLACK OPS BREWING, is highly similar in sound, appearance, meaning and overall commercial impression to registrant s mark, BROOKLYN BLACK OPS. Both marks contain the identical wording BLACK OPS. Marks may be confusingly similar in appearance where similar terms or phrases or similar parts of terms or phrases appear in the compared marks and create a similar overall commercial impression. See Crocker Nat l Bank v. Canadian Imperial Bank of Commerce, 228 USPQ 689, (TTAB 1986), aff d sub nom. Canadian Imperial Bank of Commerce v. Wells Fargo Bank, Nat l Ass n, 811 F.2d 1490, 1495, 1 USPQ2d 1813, 1817 (Fed. Cir. 1987) (finding COMMCASH and COMMUNICASH confusingly similar); In re Corning Glass Works, 229 USPQ 65, 66 (TTAB 1985) (finding CONFIRM and CONFIRMCELLS confusingly similar); In re Pellerin Milnor Corp., 221 USPQ 558, 560 (TTAB 1983) (finding MILTRON and MILLTRONICS confusingly similar); TMEP (b)(ii)-(iii). Comparison of the Goods and Services When analyzing an applicant s and registrant s goods and services for similarity and relatedness, that determination is based on the description of the goods and services stated in the application and registration at issue, not on extrinsic evidence of actual use. See Octocom Sys. Inc. v. Hous. Computers Servs. Inc., 918 F.2d 937, 942, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); see also Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002). Absent restrictions in an application and/or registration, the identified goods and services are presumed to travel in the same channels of trade to the same class of purchasers. Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 1356, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d at 1268, 62 USPQ2d at Additionally, unrestricted and broad identifications are presumed to encompass all goods and services of the type described. See In re Jump Designs, 80 USPQ2d 1370, 1374 (TTAB 2006); In re Linkvest S.A., 24 USPQ2d 1716, 1716 (TTAB 1992). The registrant s goods are identified as beer in International Class 032. The applicant s goods and services are identified as beer in International Class 032 and Taproom services featuring craft beer in International Class 043. In this case, both applicant and registrant provide beer. The identifications set forth in the application and registration are identical in part and have no restrictions as to nature, type, channels of trade, or classes of purchasers. Therefore, it is presumed that these goods travel in all normal channels of trade, and are available to the same class of purchasers. See Midwestern Pet Foods, Inc. v. Societe des Produits Nestle S.A., 685 F.3d 1046, 1053, 103 USPQ2d 1435, 1440 (Fed. Cir. 2012). Accordingly, the goods and services of applicant and the registrant are considered related for purposes of the likelihood of confusion analysis. In addition, the attached Internet evidence demonstrates the relatedness of applicant s goods and services to registrant s goods. Ex. 2, Pg. 4

17 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 6 of 59 The trademark examining attorney has attached evidence from the USPTO s X-Search database consisting of a number of third-party marks registered for use in connection with the same or similar goods and services as those of both applicant and registrant in this case. This evidence shows that the goods and services listed therein, namely beer and taproom services, are of a kind that may emanate from a single source under a single mark. See In re Anderson, 101 USPQ2d 1912, 1919 (TTAB 2012); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, (TTAB 1993); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988); TMEP (d)(iii). The marks are similar in sound, appearance, meaning, and overall commercial impression and the goods and services are identical in part. It is likely that consumers will mistakenly believe the goods and services emanate from the same source. The overriding concern is not only to prevent buyer confusion as to the source of the goods and services, but to protect the registrant from adverse commercial impact due to use of a similar mark by a newcomer. See In re Shell Oil Co., 992 F.2d 1204, 1208, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993). Therefore, any doubt regarding a likelihood of confusion determination is resolved in favor of the registrant. TMEP (d)(i); see Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1265, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, , 6 USPQ2d 1025, 1026 (Fed. Cir. 1988). Accordingly, registration is refused pursuant to Section 2(d) of the Trademark Act. Although applicant s mark has been refused registration, applicant may respond to the refusal by submitting evidence and arguments in support of registration. Applicant should note the following potential ground for refusal. PRIOR-FILED APPLICATION The filing date of pending U.S. Application Serial No precedes applicant s filing date. See attached referenced application. If the mark in the referenced application registers, applicant s mark may be refused registration under Trademark Act Section 2(d) because of a likelihood of confusion between the two marks. See 15 U.S.C. 1052(d); 37 C.F.R. 2.83; TMEP 1208 et seq. Therefore, upon receipt of applicant s response to this Office action, action on this application may be suspended pending final disposition of the earlier-filed referenced application. In response to this Office action, applicant may present arguments in support of registration by addressing the issue of the potential conflict between applicant s mark and the mark in the referenced application. Applicant s election not to submit arguments at this time in no way limits applicant s right to address this issue later if a refusal under Section 2(d) issues. If applicant responds to the refusals, applicant must also respond to the requirements set forth below. SPECIMEN REFUSED ADVERTISING FOR GOODS Registration is refused because the specimen in International Class 032 consists of advertising material and thus does not show the applied-for mark in use in commerce for the identified goods for each international class. Trademark Act Sections 1 and 45, 15 U.S.C. 1051, 1127; 37 C.F.R. 2.34(a)(1)(iv), 2.56(a); TMEP 904, (a). Advertising materials are generally not acceptable as specimens to show use in commerce for goods. See In re MediaShare Corp., 43 USPQ2d 1304, 1307 (TTAB 1997); In re Schiapparelli Searle, 26 USPQ2d 1520, 1522 (TTAB 1993); TMEP (b), (c). Ex. 2, Pg. 5

18 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 7 of 59 An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of goods identified in the application or amendment to allege use. 15 U.S.C. 1051(a)(1); 37 C.F.R. 2.34(a)(1)(iv), 2.56(a); TMEP 904, (a). Examples of specimens for goods include tags, labels, instruction manuals, containers, photographs that show the mark on the actual goods or packaging, and displays associated with the actual goods at their point of sale. See TMEP et seq. Webpages may also be specimens for goods when they include a picture or textual description of the goods associated with the mark and the means to order the goods. TMEP (i). Applicant may respond to this refusal by satisfying one of the following for each applicable international class: (1) Submit a different specimen (a verified substitute specimen ) that (a) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an amendment to allege use and (b) shows the mark in actual use in commerce for the goods identified in the application or amendment to allege use. (2) Amend the filing basis to intent to use under Section 1(b), for which no specimen is required. This option will later necessitate additional fee(s) and filing requirements such as providing a specimen. For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic Application System (TEAS) form, please go to SPECIMEN REFUSED MARK NOT IN CONNECTION WITH SERVICES Registration is refused because the specimen does not show the applied-for mark in use in commerce in connection with any of the services specified in International Class 043 in the application or amendment to allege use. Trademark Act Sections 1 and 45, 15 U.S.C. 1051, 1127; 37 C.F.R. 2.34(a)(1)(iv), 2.56(a); In re Chengdu AOBI Info. Tech. Co., 111 USPQ2d 2080, (TTAB 2011); TMEP 904, (a), (d), (g)(i). Specifically, the specimen shows applicant s mark in connection with craft beer and brewing, without reference to taproom services featuring craft beer. An application based on Trademark Act Section 1(a) must include a specimen showing the applied-for mark in use in commerce for each international class of services identified in the application or amendment to allege use. 15 U.S.C. 1051(a)(1); 37 C.F.R. 2.34(a)(1)(iv), 2.56(a); TMEP 904, (a). Examples of specimens for services include advertising and marketing materials, brochures, photographs of business signage and billboards, and webpages that show the mark used in the actual sale, rendering, or advertising of the services. See TMEP (a), (h)(iv)(c). Applicant may respond to this refusal by satisfying one of the following for each applicable international class: (1) Submit a different specimen (a verified substitute specimen ) that (a) was in actual use in commerce at least as early as the filing date of the application or prior to the filing of an Ex. 2, Pg. 6

19 amendment to allege use and (b) shows the mark in actual use in commerce for the services identified in the application or amendment to allege use. (2) Amend the filing basis to intent to use under Section 1(b), for which no specimen is required. This option will later necessitate additional fee(s) and filing requirements such as providing a specimen. For an overview of both response options referenced above and instructions on how to satisfy either option online using the Trademark Electronic Application System (TEAS) form, please go to DISCLAIMER Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 8 of 59 Applicant must disclaim the wording BREWING because it merely describes an ingredient, quality, characteristic, function, feature, purpose, or use of applicant s goods and services, and thus is an unregistrable component of the mark. See 15 U.S.C. 1052(e)(1), 1056(a); DuoProSS Meditech Corp. v. Inviro Med. Devices, Ltd., 695 F.3d 1247, 1251, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012) (quoting In re Oppedahl & Larson LLP, 373 F.3d 1171, 1173, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004)); TMEP 1213, (a). The attached evidence shows this wording means the production of malt beverages (as beer or ale) from malt and hops by grinding and boiling them and fermenting the result with yeast. Therefore, the wording merely describes a feature of applicant s goods and services. Specifically, applicant brews beer and provides a taproom featuring brewed beer. An applicant may not claim exclusive rights to terms that others may need to use to describe their goods and/or services in the marketplace. See Dena Corp. v. Belvedere Int l, Inc., 950 F.2d 1555, 1560, 21 USPQ2d 1047, 1051 (Fed. Cir. 1991); In re Aug. Storck KG, 218 USPQ 823, 825 (TTAB 1983). A disclaimer of unregistrable matter does not affect the appearance of the mark; that is, a disclaimer does not physically remove the disclaimed matter from the mark. See Schwarzkopf v. John H. Breck, Inc., 340 F.2d 978, 978, 144 USPQ 433, 433 (C.C.P.A. 1965); TMEP If applicant does not provide the required disclaimer, the USPTO may refuse to register the entire mark. See In re Stereotaxis Inc., 429 F.3d 1039, , 77 USPQ2d 1087, (Fed. Cir. 2005); TMEP (b). Applicant should submit a disclaimer in the following standardized format: No claim is made to the exclusive right to use BREWING apart from the mark as shown. For an overview of disclaimers and instructions on how to satisfy this disclaimer requirement online using the Trademark Electronic Application System (TEAS) form, please go to TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS TO MAINTAIN LOWER FEE, ADDITIONAL REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE: Applicants who filed their application online using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office actions (see TMEP (b), (b) for a complete list of these documents); (2) maintain a Ex. 2, Pg. 7

20 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 9 of 59 valid correspondence address; and (3) agree to receive correspondence from the USPTO by throughout the prosecution of the application. See 37 C.F.R. 2.22(b), 2.23(b); TMEP 819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $50 per international class of goods and/or services. 37 C.F.R. 2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP , However, in certain situations, TEAS Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner s amendment by telephone without incurring this additional fee. RESPONSE GUIDELINES For this application to proceed toward registration, applicant must explicitly address each refusal and/or requirement raised in this Office action. If the action includes a refusal, applicant may provide arguments and/or evidence as to why the refusal should be withdrawn and the mark should register. Applicant may also have other options for responding to a refusal and should consider such options carefully. To respond to requirements and certain refusal response options, applicant should set forth in writing the required changes or statements. If applicant does not respond to this Office action within six months of the issue/mailing date, or responds by expressly abandoning the application, the application process will end, the trademark will fail to register, and the application fee will not be refunded. See 15 U.S.C. 1062(b); 37 C.F.R. 2.65(a), 2.68(a), 2.209(a); TMEP , , Where the application has been abandoned for failure to respond to an Office action, applicant s only option would be to file a timely petition to revive the application, which, if granted, would allow the application to return to active status. See 37 C.F.R. 2.66; TMEP There is a $100 fee for such petitions. See 37 C.F.R. 2.6, 2.66(b)(1). If applicant has questions regarding this Office action, please telephone or the assigned trademark examining attorney. All relevant communications will be placed in the official application record; however, an communication will not be accepted as a response to this Office action and will not extend the deadline for filing a proper response. See 37 C.F.R. 2.62(c), 2.191; TMEP , Further, although the trademark examining attorney may provide additional explanation pertaining to the refusal(s) and/or requirement(s) in this Office action, the trademark examining attorney may not provide legal advice or statements about applicant s rights. See TMEP , /Alison F. Pollack/ Alison F. Pollack Trademark Examining Attorney Law Office alison.pollack@uspto.gov TO RESPOND TO THIS LETTER: Go to Please wait hours from the issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application. For technical assistance with online forms, TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned trademark examining attorney. communications will not be accepted as responses to Office actions; therefore, do not respond to this Office action by . All informal communications relevant to this application will be placed in the official application record. Ex. 2, Pg. 8

21 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 10 of 59 WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response. PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the Trademark Assistance Center by at TrademarkAssistanceCenter@uspto.gov or call For more information on checking status, see TO UPDATE CORRESPONDENCE/ ADDRESS: Use the TEAS form at Ex. 2, Pg. 9

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69 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 58 of 59 To: Subject: Sent: Sent As: Attachments: Black Ops Brewing, Inc. U.S. TRADEMARK APPLICATION NO BLACK OPS BREWING - N/A 7/1/ :05:40 AM ECOM106@USPTO.GOV UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO) IMPORTANT NOTICE REGARDING YOUR U.S. TRADEMARK APPLICATION USPTO OFFICE ACTION (OFFICIAL LETTER) HAS ISSUED ON 7/1/2015 FOR U.S. APPLICATION SERIAL NO Please follow the instructions below: (1) TO READ THE LETTER: Click on this link or go to enter the U.S. application serial number, and click on Documents. The Office action may not be immediately viewable, to allow for necessary system updates of the application, but will be available within 24 hours of this notification. (2) TIMELY RESPONSE IS REQUIRED: Please carefully review the Office action to determine (1) how to respond, and (2) the applicable response time period. Your response deadline will be calculated from 7/1/2015 (or sooner if specified in the Office action). For information regarding response time periods, see Do NOT hit Reply to this notification, or otherwise your response because the USPTO does NOT accept s as responses to Office actions. Instead, the USPTO recommends that you respond online using the Trademark Electronic Application System (TEAS) response form located at (3) QUESTIONS: For questions about the contents of the Office action itself, please contact the assigned trademark examining attorney. For technical assistance in accessing or viewing the Office action in the Trademark Status and Document Retrieval (TSDR) system, please TSDR@uspto.gov. WARNING Failure to file the required response by the applicable response deadline will result in the Ex. 2, Pg. 57

70 Case 1:15-cv JAM-EPG Document 1-2 Filed 11/02/15 Page 59 of 59 ABANDONMENT of your application. For more information regarding abandonment, see PRIVATE COMPANY SOLICITATIONS REGARDING YOUR APPLICATION: Private companies not associated with the USPTO are using information provided in trademark applications to mail or trademark-related solicitations. These companies often use names that closely resemble the USPTO and their solicitations may look like an official government document. Many solicitations require that you pay fees. Please carefully review all correspondence you receive regarding this application to make sure that you are responding to an official document from the USPTO rather than a private company solicitation. All official USPTO correspondence will be mailed only from the United States Patent and Trademark Office in Alexandria, VA; or sent by from the For more information on how to handle private company solicitations, see Ex. 2, Pg. 58

71 JS 44 (Rev. 12/07) CIVIL COVER SHEET Case 1:15-cv JAM-EPG Document 1-3 Filed 11/02/15 Page 1 of 1 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 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. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.) I. (a) PLAINTIFFS DEFENDANTS The Brooklyn Brewery Corporation Black Ops Brewing, Inc. (b) County of Residence of First Listed Plaintiff Brooklyn, NY County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (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) Attorneys (If Known) Daniel R. Foster, McDermott Will & Emery LLP, 4 Park Plaza Suite 1700, Irvine, CA, II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an X in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 610 Agriculture 422 Appeal 28 USC State Reapportionment 120 Marine 310 Airplane 362 Personal Injury Other Food & Drug 423 Withdrawal 410 Antitrust 130 Miller Act 315 Airplane Product Med. Malpractice 625 Drug Related Seizure 28 USC Banks and Banking 140 Negotiable Instrument Liability 365 Personal Injury - of Property 21 USC Commerce 150 Recovery of Overpayment 320 Assault, Libel & Product Liability 630 Liquor Laws PROPERTY RIGHTS 460 Deportation & Enforcement of Judgment Slander 368 Asbestos Personal 640 R.R. & Truck 820 Copyrights 470 Racketeer Influenced and 151 Medicare Act 330 Federal Employers Injury Product 650 Airline Regs. 830 Patent Corrupt Organizations 152 Recovery of Defaulted Liability Liability 660 Occupational 840 Trademark 480 Consumer Credit Student Loans 340 Marine PERSONAL PROPERTY Safety/Health 490 Cable/Sat TV (Excl. Veterans) 345 Marine Product 370 Other Fraud 690 Other 810 Selective Service 153 Recovery of Overpayment Liability 371 Truth in Lending LABOR SOCIAL SECURITY 850 Securities/Commodities/ of Veteran s Benefits 350 Motor Vehicle 380 Other Personal 710 Fair Labor Standards 861 HIA (1395ff) Exchange 160 Stockholders Suits 355 Motor Vehicle Property Damage Act 862 Black Lung (923) 875 Customer Challenge 190 Other Contract Product Liability 385 Property Damage 720 Labor/Mgmt. Relations 863 DIWC/DIWW (405(g)) 12 USC Contract Product Liability 360 Other Personal Product Liability 730 Labor/Mgmt.Reporting 864 SSID Title XVI 890 Other Statutory Actions 196 Franchise Injury & Disclosure Act 865 RSI (405(g)) 891 Agricultural Acts REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 740 Railway Labor Act FEDERAL TAX SUITS 892 Economic Stabilization Act 210 Land Condemnation 441 Voting 510 Motions to Vacate 790 Other Labor Litigation 870 Taxes (U.S. Plaintiff 893 Environmental Matters 220 Foreclosure 442 Employment Sentence 791 Empl. Ret. Inc. or Defendant) 894 Energy Allocation Act 230 Rent Lease & Ejectment 443 Housing/ Habeas Corpus: Security Act 871 IRS Third Party 895 Freedom of Information 240 Torts to Land Accommodations 530 General 26 USC 7609 Act 245 Tort Product Liability 444 Welfare 535 Death Penalty IMMIGRATION 900Appeal of Fee Determination 290 All Other Real Property 445 Amer. w/disabilities Mandamus & Other 462 Naturalization Application Under Equal Access Employment 550 Civil Rights 463 Habeas Corpus - to Justice 446 Amer. w/disabilities Prison Condition Alien Detainee 950 Constitutionality of Other 465 Other Immigration State Statutes 440 Other Civil Rights Actions V. ORIGIN 1 Original Proceeding (Place an X in One Box Only) 2 Removed from State Court VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY 3 Remanded from Appellate Court 4 Reinstated or Reopened 5 Transferred from another district (specify) 6 Multidistrict Litigation 7 Appeal to District Judge from Magistrate Judgment Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 15 USC 1114 and 1125 Brief description of cause: trademark infringement, false designation of origin, unfair competition, passing off 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 (See instructions): JUDGE DOCKET NUMBER DATE November 2, 2015 FOR OFFICE USE ONLY SIGNATURE OF ATTORNEY OF RECORD /s/ Daniel R. Foster RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE