Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA863029
`
`Filing date:
`
`12/06/2017
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91237003
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Plaintiff
`Cocona Inc.
`
`LAURA A SCHNEIDER
`NEUGEBOREN O'DOWD PC
`1227 SPRUCE ST STE 200
`BOULDER, CO 80302
`UNITED STATES
`Email: laura@nodiplaw.com, shane@nodiplaw.com, pau@nodiplaw.com
`
`Motion to Suspend for Civil Action
`
`Percival, Shane
`
`shane@nodiplaw.com
`
`/Shane Percival/
`
`12/06/2017
`
`Attachments
`
`6000.2048 MotionToSuspend.pdf(176122 bytes )
`
`

`

`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`Cocona, Inc.
`
`Opposer,
`
`v.
`
`Kartex Corporation
`
`Applicant
`
`
`
`
`
`Opposition No.: 91237003
`
`
`
`Serial No.:
`
`87207790
`
`
`
`OPPOSER’S MOTION TO SUSPEND PROCEEDING IN VIEW OF PENDING CIVIL
`ACTION PURSUANT TO 37 C.F.R. 2.117
`
`Opposer Cocona, Inc. (“Opposer”) hereby moves for suspension of these proceedings
`
`pursuant to 37 C.F.R. § 2.117(a). In support of this Motion Opposer submits herewith Exhibit A,
`
`which is a copy of a Complaint filed on December 6, 2017 by Opposer. See Cocona, Inc. v. Kartex
`
`Corporation, Civil Action No. 17-CV-2933 (“Civil Action”). The Civil Action is currently
`
`pending in the United States District Court for the District of Colorado. In the Complaint, Opposer
`
`asserts claims and requests a judicial declaration that essentially duplicate the claims, affirmative
`
`defenses, and counterclaims pending in this opposition.
`
`Suspension of a Board proceeding pending the final determination of another proceeding
`
`is solely within the discretion of the Board. TBMP § 510.02(a). Whenever it comes to the attention
`
`of the Board that the parties to a case before it are involved in a civil action which may have a
`
`bearing on the Board case, the proceedings before the Board may be suspended upon final
`
`determination of the civil action. Id. Unless there are unusual circumstances, the Board will
`
`suspend proceedings in the case before it if the final determination of the other proceeding may
`
`have a bearing on the issues before the board. Id. Judicial economy is usually served by suspending
`1
`
`
`
`

`

`the civil action. Id. Not only may the issues raised by Opposer in the Complaint have a bearing on
`
`the instant opposition, the issues raised by Opposer in the Complaint can only be pursued through
`
`the Civil Action and may in fact be dispositive of the Board case. Specifically, Opposer has asserted
`
`claims in the Complaint of trademark infringement by Applicant under the Lanham Act and has
`
`requested a judicial declaration that Opposer’s asserted marks are valid in light of Applicant’s
`
`assertion in the Board proceeding that the marks should be canceled.
`
`In view of the fact that the pending Civil Action involves issues that will impact the pending
`
`opposition and that the determination of this issues will be dispositive of, or at least have a bearing
`
`on, this proceeding, Opposer respectfully requests suspension of these proceedings pending
`
`determination of the Civil Action pursuant to Trademark Rule 2.117(a), 37 C.F.R. § 2.117(a).
`
`Respectfully submitted,
`
`Dated: December 6, 2017
`
`
`
`
`
`By: /Shane Percival/
`
`Shane Percival
`
`Laura Schneider
`NEUGEBOREN O’DOWD PC
`1227 Spruce Street, Suite 200
`Boulder, CO 80302
`720-536-4900 phone
`720-536-4910 fax
`
`shane@nodiplaw.com
`laura@nodiplaw.com
`
`Attorneys for Opposer
`
`
`2
`
`
`
`
`
`
`
`
`

`

`EXHIBIT A
`EXHIBIT A
`
`
`
`
`
`3
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 1 of 9
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Civil Action No. 17-CV-2933
`
`COCONA, INC.,
`
`Plaintiff,
`
`v.
`
`KARTEX CORPORATION,
`
`Defendant.
`
`______________________________________________________________________________
`
`COMPLAINT AND JURY DEMAND
`______________________________________________________________________________
`
`Plaintiff Cocona, Inc. (“Cocona), by and through its attorneys, Kutak Rock LLP, and for
`
`its Complaint and Jury Demand against Defendant Kartex Corporation (“Kartex”) states and
`
`alleges as follows:
`
`PARTIES
`
`1.
`
`Cocona is a Delaware corporation with its principal place of business at 5480
`
`Valmont Road, Suite 300, Boulder, Colorado 80301.
`
`2.
`
`Upon information and belief, Kartex is a New York corporation with its principal
`
`place of business at 222 West 37th Street, #501, New York, New York 10018.
`
`JURISDICTION AND VENUE
`
`3.
`
`This action is brought under the Lanham Act, 15 U.S.C. § 1051 et seq., and in
`
`particular under the Federal Trademark Act, 15 U.S.C. §§ 1051-1127. This Court has subject
`
`matter jurisdiction pursuant to 15 U.S.C. § 1121(a), 28 U.S.C. §§ 1331 and 1338.
`
`4833-9631-4965.2
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 2 of 9
`
`4.
`
`Venue is proper in the United States District Court for the District of Colorado
`
`pursuant to 28 U.S.C. § 1391 because a substantial part of the events giving rise to Cocona’s
`
`claim occurred in this judicial district.
`
`GENERAL ALLEGATIONS
`
`5.
`
`Cocona is a company based in Boulder, Colorado that is in the business of
`
`inventing, developing and marketing new, unique and high-value-in-use technologies for fibers,
`
`fabrics and films.
`
`6.
`
`Among other things, Cocona conceived of the idea of incorporating certain
`
`natural substances into fibers and other fabric materials in order to alter or enhance certain
`
`characteristics of the fabric.
`
`7.
`
`Cocona’s technology includes, among other things, the permanent incorporation
`
`of natural active particles that have micro-porous structures into fibers, fabrics, polymers, and
`
`films. These active particles, derived from natural sources such as coconut carbon, enhance the
`
`performance of fabrics in apparel, especially outdoor wear, by increasing breathability, UV
`
`protection and odor management.
`
`8.
`
`Cocona licenses its technology to companies around the world. Cocona’s
`
`licensees incorporate Cocona’s proprietary technology into numerous products, from bedding
`
`materials to high-performance clothing.
`
`Cocona’s Registered Trademark
`
`9.
`
`Since 2013, Cocona has marketed its proprietary technology under the name
`
`“37.5®.”
`
`10.
`
`Cocona selected “37.5” in part because it suggests that the enhanced performance
`
`4833-9631-4965.2
`
`2
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 3 of 9
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`of apparel made from fabrics that incorporate Cocona’s proprietary technology as well as other
`
`materials enable the wearer to regulate his or her body temperature in a more efficient manner.
`
`11.
`
`Cocona filed an application with the United States Patent and Trademark Office
`
`(“USPTO”) to register “37.5” as a standard character mark on July 12, 2013. In its application,
`
`Cocona specified classifications related to fabric for use in clothing, including foundation
`
`garments such as t-shirts, sweat pants, and under garments.
`
`12.
`
`The USPTO accepted “37.5” for registration on October 7, 2014 and issued it the
`
`registration number 4618453 (the “Word Mark”).
`
`13.
`
`Cocona filed an application with the USPTO to register a design mark that
`
`incorporated “37.5” on June 11, 2014. The USPTO accepted the registration on July 21, 2015
`
`and issued it the registration number 4778686 (the “Design Mark”).
`
`14.
`
`Cocona has subsequently sought and received additional registrations for marks
`
`that include “37.5®”
`
`15.
`
`Cocona has invested substantial time and resources in developing and protecting
`
`all of its registered trademarks, including the Word Mark and the Design Mark. Cocona requires
`
`the licensees of its proprietary technology to execute comprehensive agreements that require use
`
`of branding that includes the Word Mark in conjunction with any use of Cocona’s technology.
`
`This licensing program restricts and carefully regulates the manner in which Cocona’s registered
`
`marks are used.
`
`16.
`
`Cocona has extensively promoted its business using the Word Mark. Consumers
`
`recognize the Word Mark as a brand identifier for products that incorporate Cocona’s proprietary
`
`technology.
`
`4833-9631-4965.2
`
`3
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 4 of 9
`
`17.
`
`The Word Mark is famous by virtue of its inherent distinctiveness and substantial
`
`secondary meaning as a designation for products that include Cocona’s proprietary technology.
`
`18.
`
`The Word Mark is particularly well known among consumers of high
`
`performance clothing.
`
`Kartex’s Infringing Activity
`
`19.
`
`In September 2017, Cocona first became aware of Kartex’s use of “37.8⁰ C” when
`
`Kartex’s trademark application was published.
`
`20.
`
`After
`
`learning of Kartex’s
`
`trademark application, Cocona conducted an
`
`investigation and determined that Kartex is selling high-performance clothing products,
`
`including fitness clothing and undergarments, under the name “37.8⁰ C.”
`
`21.
`
`Kartex uses “37.8⁰ C” to promote its products on Internet retail sites, including
`
`Amazon.
`
`22.
`
`On its face, Kartex’s “37.8⁰ C” mark appears to refer to centigrade temperature
`
`and specifically, upon information and belief, the centigrade temperature of the human body.
`
`23.
`
`Kartex uses “37.8⁰ C” to suggest that its high-performance clothing products
`
`allow the wearer to maintain a body temperature of 37.8 degrees centigrade.
`
`24.
`
`On October 3, 2017, Cocona sent Kartex a letter requesting that it immediately
`
`cease using “37.8⁰ C” on the grounds that Kartex’s sale of athletic and/or high-performance
`
`clothing products using the mark “37.8⁰ C” had created confusion in the market and infringed
`
`Cocona’s proprietary trademarks, including the Word Mark.
`
`25.
`
`To date, Cocona has not received a response from Kartex to its letter.
`
`4833-9631-4965.2
`
`4
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 5 of 9
`
`26.
`
`On the same day it sent the letter, Cocona filed an opposition before the
`
`Trademark Trial and Appeal Board (the “TTAB”) to Kartex’s pending trademark registration
`
`application (the “Opposition”).
`
`27.
`
`On October 18, 2016, Kartex answered the Opposition and filed a counterclaim
`
`seeking cancellation of the Word Mark and the Design Mark.
`
`28.
`
`Since the time Cocona first discovered Kartex’s use of “37.8⁰ C” to sell athletic
`
`wear on the Internet, Kartex has increased the number of products available for sale on Amazon
`
`under the “37.8⁰ C” brand.
`
`FIRST CLAIM FOR RELIEF
`(Trademark Infringement Under Lanham Act 15 U.S.C. § 1114)
`
`29.
`
`Plaintiff incorporates by reference the allegations contained in paragraphs 1
`
`through 28 as if fully set forth herein.
`
`30.
`
`Cocona is the owner of the Word Mark, which is a valid, registered U.S.
`
`trademark.
`
`31.
`
`Kartex’s use of “37.8⁰ C” to promote the sale of high-performance clothing items
`
`and undergarments infringes the Word Mark as it is likely to cause confusion, mistake, or
`
`deception with regard to the Word Mark. Among others, potential consumers of goods and
`
`services marketed under the Word Mark would be led to mistakenly believe that Kartex’s goods
`
`are affiliated with, sponsored by, or connected with Cocona.
`
`32.
`
`Kartex’s use of “37.8⁰ C” to promote its products is without Cocona’s consent or
`
`permission.
`
`4833-9631-4965.2
`
`5
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 6 of 9
`
`33.
`
`Kartex’s refusal to cease using “37.8⁰ C” constitutes willful, intentional, knowing,
`
`and bad faith trademark infringement of Cocona’s registered trademark in violation of 15 U.S.C.
`
`§ 1114(1).
`
`34.
`
`Kartex’s conduct has caused and, unless enjoined, will continue to cause
`
`irreparable harm, monetary damage, loss, and injury to Cocona.
`
`35.
`
`Cocona is without an adequate remedy at law.
`
`SECOND CLAIM FOR RELIEF
`(False Designation of Origin Under Lanham Act 15 U.S.C. § 1125(a))
`
`36.
`
`Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 35
`
`of the Complaint as if fully set forth herein.
`
`37.
`
`Kartex’s use of “37.8⁰ C” to promote the sale of high-performance clothing items
`
`and undergarments is likely to cause confusion, mistake or deception as to the origin,
`
`sponsorship, or approval of its goods.
`
`38.
`
`Kartex’s conduct has caused and, unless enjoined, will continue to cause
`
`irreparable harm, monetary damage, loss, and injury to Cocona.
`
`39.
`
`Cocona is without an adequate remedy at law.
`
`THIRD CLAIM FOR RELIEF
`(Unfair Competition Under Lanham Act 15 U.S.C. § 1125(a))
`
`40.
`
`Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 39
`
`of the Complaint as if fully set forth herein.
`
`41.
`
`Kartex’s use of “37.8⁰ C” to promote the sale of high-performance clothing items
`
`and undergarments in direct competition with products sold by the licensees of Cocona’s
`
`proprietary technology constitutes unfair competition pursuant to 15 U.S.C. § 1125(a).
`
`4833-9631-4965.2
`
`6
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 7 of 9
`
`42.
`
`Kartex’s use of “37.8⁰ C” is likely to cause confusion, mistake or deception
`
`among consumers.
`
`43.
`
`Kartex’s conduct has caused and, unless enjoined, will continue to cause
`
`irreparable harm, monetary damage, loss, and injury to Cocona.
`
`44.
`
`Cocona is without an adequate remedy at law.
`
`FOURTH CLAIM FOR RELIEF
`(Declaratory Judgment)
`
`45.
`
`Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 44
`
`of the Complaint as if fully set forth herein.
`
`46.
`
`The Word Mark and Design Mark are valid trademarks as they are distinctive.
`
`47.
`
`The Word Mark and Design Mark are valid trademarks as they have acquired
`
`secondary meaning associated with Cocona and its proprietary technology.
`
`48.
`
`Kartex has alleged that the Word Mark and the Design Mark are not valid and that
`
`they should be canceled.
`
`49.
`
`Cocona reasonably apprehends that Kartex will continue to attempt to cancel the
`
`Word Mark or the Design Mark.
`
`50.
`
`There exists an actual controversy between Cocona and Kartex regarding whether
`
`the Word Mark and/or the Design Mark are valid, and a judicial declaration of validity of the
`
`Word Mark and the Design Mark is necessary and appropriate at this time.
`
`FIFTH CLAIM FOR RELIEF
`(Injunctive Relief)
`
`51.
`
`Plaintiff hereby incorporates the allegations set forth in paragraphs 1 through 50
`
`of the Complaint as if fully set forth herein.
`
`4833-9631-4965.2
`
`7
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 8 of 9
`
`52.
`
`Kartex has engaged in conduct, and continues to engage in conduct, in violation
`
`of Cocona’s trademark rights that has created and will continue to create confusion in the market.
`
`53.
`
`As a result of Kartex’s actions, Cocona has sustained and will continue to sustain
`
`irreparable injury.
`
`54.
`
`Cocona is left without an adequate remedy at law because, among other things,
`
`the damage to existing and prospective consumer relationships cannot be determined as a matter
`
`of law.
`
`55.
`
`Injunctive relief is the only way to remedy Kartex’s injurious actions.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff Cocona, Inc. prays that judgment be entered in its favor and
`
`against Defendant Kartex Corporation on each and every claim asserted herein, and that it be
`
`awarded the following relief:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`Monetary damages, including special damages, in an amount to be calculated at trial;
`
`All applicable statutory penalties;
`
`A declaration that the Word Mark and the Design Mark are valid and enforceable;
`
`Pre-judgment interest;
`
`Post-judgment interest;
`
`Litigation costs and expenses, including reasonable attorneys’ fees; and
`
`Any such further preliminary or permanent relief, including equitable relief, as this
`
`Court deems just and proper under the circumstances.
`
`4833-9631-4965.2
`
`8
`
`

`

`Case 1:17-cv-02933 Document 1 Filed 12/06/17 USDC Colorado Page 9 of 9
`
`JURY DEMAND
`
`Cocona demands a jury trial on all issues so triable.
`
`Respectfully submitted this 6th day of December, 2017.
`
`KUTAK ROCK LLP
`
`s/ Chad T. Nitta
`Chad T. Nitta
`Blair E. Kanis
`1801 California St., Suite 3000
`Denver, CO 80202
`Tel: 303-297-2400
`Fax: 303-292-7799
`chad.nitta@kutakrock.com
`blair.kanis@kutakrock.com
`
`ATTORNEYS FOR PLAINTIFF
`
`4833-9631-4965.2
`
`9
`
`

`

`Case 1:17-cv-02933 Document 1-1 Filed 12/06/17 USDC Colorado Page 1 of 2
`
`JS 44 (Rev. 06/17)
`
`District of Colorado Form
`
`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 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 NEXT PAGE OF THIS FORM.)
`
`I. (a) PLAINTIFFS
`
`COCONA, INC.
`
`DEFENDANTS
`
`KARTEX CORPORATION
`
`(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF: Boulder, CO
`(EXCEPT IN U.S. PLAINTIFF CASES)
`
`
`
`COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT:
`(IN U.S. PLAINTIFF CASES ONLY)
`
`(c) ATTORNEYS (Firm Name, Address, And Telephone Number)
`Chad T. Nitta and Blair E. Kanis
`KUTAK ROCK LLP, 1801 California St., Suite 3000, Denver, CO 80202
`Tel: 303-297-2400
`chad.nitta@kutakrock.com; blair.kanis@kutakrock.com
`
`NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION TRACT OF LAND INVOLVED
`
`ATTORNEYS (If Known)
`
`II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
`
`III. CITIZENSHIP OF PRINCIPAL PARTIES
`(For Diversity Cases Only)
`
`(Place an “X” in One Box for Plaintiff
`and One Box for Defendant)
`
`
`
`
`
`1 U.S. GOVERNMENT
`PLAINTIFF
`
` 3 FEDERAL QUESTION
`(U.S. Government Not a Party)
`
`Citizen of This State
`
`PTF
` 1
`
`DEF
` 1
`
`Incorporated or Principal Place
`of Business in This State
`
`2 U.S. GOVERNMENT
`DEFENDANT
`
` 4 DIVERSITY
`(Indicate Citizenship of Parties in Item III)
`
`Citizen of Another State
`
`Citizen or Subject of a
`Foreign Country
`
` 2
`
` 3
`
` 2
`
`Incorporated and Principal Place
`of Business in Another State
`
` 3
`
`Foreign Nation
`
`PTF
` 4
`
`DEF
` 4
`
` 5
`
` 6
`
` 5
`
` 6
`
`IV. NATURE OF SUIT (Place an “X” in One Box Only)
`
`CONTRACT
`
`TORTS
`
`FORFEITURE/PENALTY
`
`BANKRUPTCY
`
`OTHER STATUTES
`
` 625 Drug Related Seizure of
`Property 21 USC 881
` 690 Other
`
` 422 Appeal 28 USC 158
` 423 Withdrawal
`28 USC 157
`
`PROPERTY RIGHTS
`
` 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 Stockholder’s Suits
` 190 Other Contract
` 195 Contract Product
`Liability
` 196 Franchise
`
`PERSONAL INJURY
` 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
` 362 Personal Injury -
`Medical Malpractice
`
`PERSONAL INJURY
` 365 Personal Injury -
`Product Liability
` 367 Health Care/
`Pharmaceutical
`Personal Injury
`Product Liability
` 368 Asbestos Personal
`Injury Product
`Liability
`
`PERSONAL PROPERTY
` 370 Other Fraud
` 371 Truth in Lending
` 380 Other Personal
`Property Damage
` 385 Property Damage-
`Product Liability
`
`REAL PROPERTY
`
`CIVIL RIGHTS
`
` 210 Land Condemnation
` 220 Foreclosure
` 230 Rent Lease & Ejectment
` 240 Torts to Land
` 245 Tort Product Liability
` 290 All Other Real Property
`
` 440 Other Civil Rights
` 441 Voting
` 442 Employment
` 443 Housing/
`Accommodations
` 445 Amer. w/ Disabilities-
`Employment
` 446 Amer. w/Disabilities-
`Other
` 448 Education
`
`PRISONER PETITIONS
`Habeas Corpus:
` 463 Alien Detainee
` 510 Motions to Vacate
`Sentence
` 530 General
` 535 Death Penalty
`Other:
` 540 Mandamus & Other
` 550 Civil Rights
` 555 Prisoner Condition
` 560 Civil Detainee-
`Conditions of
`Confinement
`
`V. ORIGIN (Place an “X” in One Box Only)
`
` 820 Copyrights
` 830 Patent
` 835 Patent - Abbreviated
`New Drug Application
` 840 Trademark
`
`LABOR
`
`SOCIAL SECURITY
`
` 710 Fair Labor Standards Act
` 720 Labor/Mgmt. Relations
` 740 Railway Labor Act
` 751 Family and Medical Leave
`Act
` 790 Other Labor Litigation
` 791 Employee Retirement
`Income Security Act
`
`IMMIGRATION
`
` 462 Naturalization Application
` 465 Other Immigration Actions
`
` 861 HIA (1395ff)
` 862 Black Lung (923)
` 863 DIWC/DIWW (405 (g))
` 864 SSID Title XVI
` 865 RSI (405(g))
`
`TAX SUITS
`
` 870 Taxes (U.S. Plaintiff or
`Defendant)
` 871 IRS – Third Party
`26 USC 7609
`
` 375 False Claims Act
` 376 Qui Tam (31 USC
`3729(a))
` 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
` 850 Securities/
`Commodities/
`Exchange
` 890 Other Statutory
`Actions
` 891 Agricultural Acts
` 893 Environmental
`Matters
` 895 Freedom of
`Information Act
` 896 Arbitration
` 899 Administrative
`Procedure Act /
`Review or Appeal of
`Agency Decision
` 950 Constitutionality of
`State Statutes
`
` 1 Original Proceeding
`
` 2 Removed from State
`Court
`
` 3 Remanded from
`Appellate Court
`
` 4 Reinstated or
`Reopened
`
` 5 Transferred from
`another district (specify)
`
` 6 Multidistrict
`Litigation - Transfer
`
` 8 Multidistrict
`Litigation – Direct File
`
`VI. CAUSE OF ACTION
`
`Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity
` 15 U.S.C. § 1114
`
` AP Docket
`Brief description of cause:
` Trademark infringement and unfair competition under the Lanham Act
`
`VII. REQUESTED IN
`
` COMPLAINT:
`
` CHECK IF THIS IS A CLASS ACTION
`
`DEMAND $
`
`
`
`UNDER RULE 23, F.R.Cv.P.
`
`CHECK YES only if demanded in complaint:
`
`JURY DEMAND:
`
` YES
`
` NO
`
`VIII. RELATED CASE(S)
`IF ANY
`(See instructions):
`
`DATE: December 6, 2017
`
`FOR OFFICE USE ONLY
`
`JUDGE ____________________________________________________ DOCKET NUMBER ___________________________________
`
`SIGNATURE OF ATTORNEY OF RECORD: s/ Chad T. Nitta
`
`RECEIPT #___________
`
`AMOUNT ___________
`
`APPLYING IFP ___________
`
`JUDGE ______________
`
`MAG. JUDGE _______________
`
`4832-3409-9032.1
`
`

`

`Case 1:17-cv-02933 Document 1-1 Filed 12/06/17 USDC Colorado Page 2 of 2
`
`JS 44 Reverse (Rev. 06/17)
`
`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.
`
`III.
`
`IV.
`
`V.
`
`Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.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; NOTE: federal question actions take
`precedence over diversity cases.)
`
`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.
`
`Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature
`of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions.
`
`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 – 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.
`
`

`

`Case 1:17-cv-02933 Document 1-2 Filed 12/06/17 USDC Colorado Page 1 of 2
`
`AO 440 (Rev. 06/12) Summons in a Civil Action
`
`UNITED STATES DISTRICT COURT
`
`for the
`
` District of Colorado
`__________ District of __________
`
`Civil Action No.
`
`17-CV-2933
`
`) ) ) ) ) ) ) ) ) ) ) )
`
`COCONA, INC.
`
`Plaintiff(s)
`v.
`
`KARTEX CORPORATION
`
`Defendant(s)
`
`SUMMONS IN A CIVIL ACTION
`
`To: (Defendant’s name and address)
`
`KARTEX CORPORATION
`110 W. 40th Street
`Ste. 1501
`New York, NY 10018
`
`A lawsuit has been filed against you.
`
`Within 21 days after service of this summons on you (not counting the day you received 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 plaintiff’s attorney,
`whose name and address are:
`Chad T. Nitta (chad.nitta@kutakrock.com)
`Blair E. Kanis (blair.kanis@kutakrock.com)
`KUTAK ROCK LLP
`1801 California St., Suite 3000
`Denver, CO 80202
`Tel: 303-297-2400
`
`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.
`
`Date:
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`

`

`Case 1:17-cv-02933 Document 1-2 Filed 12/06/17 USDC Colorado Page 2 of 2
`
`AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
`
`Civil Action No.
`
`17-CV-2933
`
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
`
`PROOF OF SERVICE
`
`This summons for (name of individual and title, if any)
`
`was received by me on (date)
`
`.
`
`" I personally served the summons on the individual at (place)
`
`on (date)
`
`; or
`
`" I left the summons at the individual’s residence or usual place of abode with (name)
`
`on (date)
`
`, and mailed a copy to the individual’s last known address; or
`
`, a person of suitable age and discretion who resides there,
`
`" I served the summons on (name of individual)
`
` designated by law to accept service of process on behalf of (name of organization)
`
`on (date)
`
`; or
`
`" I returned the summons unexecuted because
`
`" Other (specify):
`
`, who is
`
`; or
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`0.00
`
`I declare under penalty of perjury that this information is true.
`
`.
`
`.
`
`Date:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`Additional information regarding attempted service, etc:
`
`

`

`
`
`
`
`
`Certificate of Service
`
`I certify that on December 6, 2017 I had the attached document submitted via USPS and email to the
`
`following postal and email addresses:
`
`
`
`Kevin K. Tung
`
`Kevin Kerveng Tung, P.C.
`
`136-20 38th Avenue Suite 3D
`
`Flushing, NY 11354
`
`
`
`and
`
`ktung@kktlawfirm.com
`
`
`
`By: /Shane Percival/
`
`
`Shane Percival
`NEUGEBOREN O’DOWD PC
`1227 Spruce Street
`Suite 200
`Boulder, CO 80302
`Tel. (720) 536-4906
`Attorneys for Applicant
`
`
`
`
`
`4
`
`