Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1189186
`02/07/2022
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91273728
`
`Defendant
`Jacob, Bobby K.
`
`STEPHEN F. NEWTON
`STEPHEN F. NEWTON - ATTORNEY
`13046 CHATFIELD MANOR LN
`TOMBALL, TX 77377-7298
`UNITED STATES
`Primary email: sfnewton@comcast.net
`Secondary email(s): bobbyjacob1@gmail.com
`832-277-8366
`Other Motions/Submissions
`
`Tristan C. Loanzon
`
`tristan@loanzon.com
`
`/Tristan C. Loanzon/
`
`02/07/2022
`
`Motion to Join and Suspend Opp 91273728.pdf(112940 bytes )
`2648 Exhibit A Assignment of FOKANA cover letter 91273728.pdf(193120 bytes
`
`) E
`
`xhibit B S and C Fokana Inc. and Philip with exhibits Part 1 of 2.pd f(4027739
`bytes )
`Exhibit B S and C Fokana Inc. and Philip with exhibits Part 2 of 2.pd f(5398187
`bytes )
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`Proceeding no.
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`Party
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`Correspondence
`address
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`Submission
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`Filer's name
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`Filer's email
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`Signature
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`Date
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`Attachments
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`
`
`In re Matter of Application No. 90092648 for the : Opposition No. 91273728
`mark FOKANA,
`
`:
`
`:
`
`:
` FOKANA, INC.,
`
`
`:
`Mark: FOKANA
` Opposer,
`:
`Serial No.: 90092648
`
`:
`
`: Filed: Aug. 4, 2020
`-v-
`Published: Sept. 14, 2021
`
`:
`
` BOBBY K. JACOB,
`:
`
`:
` Applicant.
`:
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`
`
`MOTION
`
`MOTION TO JOIN AND SUSPEND FOR CIVIL ACTION
`
`Pursuant to 37 CFR § 2.117(a) and 37 CFR § 3.71(d), the assignee of the mark
`
`FEDERATION OF KERALA ASSOCIATIONS IN NORTH AMERICA, INC. (“Federation”)
`
`and the Applicant, through their undersigned counsel, hereby request that the Board (a) allow the
`
`Federation to join this proceeding as the assignee of the mark and (b) suspend the above-
`
`identified opposition filed by Fokana, Inc. (“Opposer”) December 29, 2021 against Application
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`No. 90092648. As grounds for the motion, the Applicant Bobby J. Jacob executed a Trademark
`
`Assignment Agreement giving the Federation all rights, title, and interest in the subject mark,
`
`which was filed with the U.S.P.T.O. via ETAS on February 6, 2022. See Exhibit A.
`
`With this submission, the Federation also moves to suspend the opposition because the
`
`parties are engaged in a civil case filed on January 21, 2022, namely, The Federation of Kerala
`
`Associations in North America et al. v. Fokana, Inc. et al., Index No. 701449/2022 (the “Civil
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`Action”). The Civil Action is currently pending in the New York Supreme Court, Queens
`
`County. A copy of the Complaint is attached as Exhibit B and may be found in this hyperlink.
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`1
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`Applicant Bobby Jacob is presently the Secretary of the Board of Trustees of the
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`Federation and acted on behalf of the Federation in registering the subject mark. The Federation
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`is the plaintiff in the Civil Action. The Federation, represented in the Civil Action by the
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`undersigned counsel, seeks to prohibit Opposer Fokana, Inc. from using the Federation’s name
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`and likeness, and alleges that Opposer Fokana, Inc. is illegally using the common law mark
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`“Federation of Kerala Associations in North America” or its acronym, FOKANA. See Exhibit
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`B, Pars. 1, 51, 54-58, 65-68. In the instant opposition, Fokana, Inc. claims that it is the owner of
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`the mark, in direct contradiction to the Federation’s claim in the Civil Action.
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`The issue of suspension falls within the discretion of the Board. “Unless there are unusual
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`circumstances, the Board will suspend proceedings in the case before it if the final determination
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`of the other proceeding may have a bearing on the issues before the Board.” TBMP § 510.02(a).
`
`In addition, Trademark Rule 2.117(a) 37 CFR 2.117(a) expressly states that:
`
`Whenever it shall come to the attention of the Trademark Trial and Appeal Board
`that a party or parties to a pending case are engaged in a civil action or another
`Board proceeding which may have a bearing on the case, proceedings before the
`Board may be suspended until termination of the civil action or the other Board
`proceeding.
`
`Therefore, a motion may be made to suspend the proceeding pending before the Board until final
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`determination of the civil case. Further, a civil action does not need to be dispositive of the issues
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`raised before the Board in order to suspend proceedings as the Board generally will suspend
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`proceedings if the final decision of the other proceedings may have a bearing on the issues to be
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`decided by the Board. See, e.g., Monster Energy Company v. William J. Martin, CANC
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`(T.T.A.B. Feb. 26, 2018) (suspending proceedings pending a civil action); New Orleans
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`Louisiana Saints LLC v. Who Dat? Inc., 99 U.S.P.Q.2d 1550 (TTAB 2011) (the Board states that
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`
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`2
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`

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`the civil action does not have to be dispositive of the Board proceeding, but only needs to have a
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`bearing on the issues before the Board in order to suspend); Whopper Burger. Inc. v. Burger
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`King Corp., 171 U.S.P.Q. 805 (TTAB 1971) (the Board found that the district court’s decision
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`would have a direct bearing on the questions regarding the parties’ rights and suspended the
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`proceeding before it).
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`An examination of the Civil Action makes clear that it involves the same parties, marks,
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`registrations, subject matter, and issues currently before the Board in the Opposition. The
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`determination of the issues raised in the Civil Action likely will include a holding on the
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`respective parties’ trademark rights and undoubtedly will have a direct bearing on the Opposition
`
`before the Board. Therefore, the Federation and the Applicant respectfully request that the Board
`
`grant the (a) Motion to Join to allow the Federation to participate in the Opposition proceedings
`
`and (b) Motion to Suspend pending the final outcome of the Civil Action.
`
`Dated: February 7, 2022
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`LOANZON LLP
`
`/Tristan C. Loanzon/
`_____________________
`By: Tristan C. Loanzon, Esq.
`1345 Avenue of the Americas Fl. 2
`New York, New York 10105
`(212) 760-1515
`(212) 760-1717 (fax)
`tristan@loanzon.com
`Attorneys for Applicant and the
`FEDERATION OF KERALA
`ASSOCIATIONS IN NORTH AMERICA,
`INC.
`
`
`
`3
`
`

`

`CERTIFICATE OF SERVICE
`
`
`This is to certify that a true and correct copy of the foregoing Motion to Join and to
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`Suspend for Civil Action has been served via electronic mail upon the following:
`
`
`RUTH KHALSA
`THE IDEAS LAW FIRM PLLC
`975 E DAVA DRIVE
`TEMPE, AZ 85283
`UNITED STATES
`Primary email: ruth@trademarkelite.com
`
`
`
`
`
`
`
`
`
`/Tristan C. Loanzon/
`______________________
`Tristan C. Loanzon
`
`
`
`
`
`
`Dated: February 7, 2022
`
`
`
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`4
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`

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`
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`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`TRADEMARK ASSIGNMENT COVER SHEET
`
`Electronic Version v1.1
`Stylesheet Version v1.2
`
`SUBMISSION TYPE:
`
`NEW ASSIGNMENT
`
`NATURE OF CONVEYANCE:
`
`ASSIGNMENT OF THE ENTIRE INTEREST AND THE GOODWILL
`
`SEQUENCE:
`
`2
`
`CONVEYING PARTY DATA
`
`Name
`
`Formerly
`
`Execution Date
`
`Entity Type
`
`Bobby K. Jacob
`
`RECEIVING PARTY DATA
`
`01/25/2022
`
`INDIVIDUAL: UNITED
`STATES
`
`Name:
`
`Federation of Kerala Associations in North America, Inc.
`
`Street Address:
`
`1611 Hillside Avenue
`
`Internal Address:
`
`c/o Vinod Kearke
`
`City:
`
`New Hyde Park
`
`State/Country:
`
`NEW YORK
`
`Postal Code:
`
`Entity Type:
`
`11040
`
`Non-Profit Corporation: NEW YORK
`
`PROPERTY NUMBERS Total: 1
`
`Property Type
`
`Number
`
`Word Mark
`
`Serial Number:
`
`90092648
`
`FOKANA
`
`CORRESPONDENCE DATA
`
`Fax Number:
`
`Phone:
`
`Email:
`
`2127601717
`
`2127601515
`
`tristan@loanzon.com
`
`Correspondence will be sent to the e-mail address first; if that is unsuccessful, it will be sent using a fax number, if provided;
`if that is unsuccessful, it will be sent via US Mail.
`
`Correspondent Name:
`
`Tristan C. Loanzon
`
`Address Line 1:
`
`Address Line 2:
`
`Address Line 4:
`
`1345 Avenue of the Americas Fl 2
`
`Loanzon LLP
`
`New York, NEW YORK 10105
`
`NAME OF SUBMITTER:
`
`Tristan C. Loanzon
`
`Signature:
`
`Date:
`
`/Tristan C. Loanzon/
`
`02/06/2022
`
`

`

`Total Attachments: 3
`source=FOKANATrademark 2648#page1.tif
`source=FOKANATrademark 2648#page2.tif
`source=FOKANATrademark 2648#page3.tif
`
`RECEIPT INFORMATION
`
`ETAS ID:
`Receipt Date:
`Fee Amount:
`
`TM706737
`02/06/2022
`$40
`
`

`

`EXHIBIT B
`EXHIBIT B
`Part 1 of 2
`Part 1 of 2
`
`

`

`FILED: QUEENS COUNTY CLERK 01/21/2022 11:27 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 701449/2022
`
`RECEIVED NYSCEF: 01/21/2022
`
`SUPREME COURT OF THE STATE OF NEW YORK.
`COUNTY OF QUEENS
`
`Federation of Kerala Associations in North America, Inc.,
`Jacob Padavathil, Vinod Kearke, and Abraham K. Philip,
`Plaintif(s),
`
`-against-
`Fokana. Inc., Mammen C. Jacob, Philipose Philip, Sajimon
`Antony, Georgy Varughese, and Sunny Mattamana,
`
`Index No. [type in Index No]
`
`�ummnns
`
`Deendant(s).
`
`Date Index No. Purchased:
`
`To the above named Deendant(s)
`FOKANA, INC.
`193 KINGS HIGHWAY
`CONGERS, NY 10920
`You are hereby summoned to answer the complaint in this action and to serve
`a copy of your answer, or, if the complaint is not served ,.,ith this summons, to serve
`a notice of appearance, on the Plaintiff's attorney within 20 days after the service of
`this summons, exclusive of the day of service (or within 30 days after the service is
`complete if this summons is not personally delivered to you ,0vithin the State of Ne,v
`York); and in case of your ailure to appear or answer, judgment will be taken against
`you by default or the relief demanded in the complaint.
`
`The basis of venue is Queens County, New York
`Which is county of incorporation of Plaintif Federation of Kerala Associations in North America, Inc.
`
`Dated: New York, NY
`January 21, 2022
`
`LOANZON LLP
`
`by T , C Uf$;
`Tristan C. Loanzon
`Attoneys for Plaintiff
`1345 Avenue of the Americas Fl. 2
`New York, NY 10105
`(212) 760-1515
`
`1 of 17
`
`

`

`FILED: QUEENS COUNTY CLERK 01/21/2022 11:27 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 701449/2022
`
`RECEIVED NYSCEF: 01/21/2022
`
`SUPREME COURT OF THE STATE OF NEW YORK.
`COUNTY OF QUEENS
`
`Federation of Kerala Associations in North America, Inc.,
`Jacob Padavathil, Vinod Kearke, and Abraham K. Philip,
`Plaintif(s),
`
`-against-
`Fokana. Inc., Mammen C. Jacob, Philipose Philip, Sajimon
`Antony, Georgy Varughese, and Sunny Mattamana,
`
`Index No. [type in Index No]
`
`�ummnns
`
`Deendant(s).
`
`Date Index No. Purchased:
`
`To the above named Deendant(s)
`Philopose Philip
`193 Kings Hwy, Congers, NY 10920
`You are hereby summoned to answer the complaint in this action and to serve
`a copy of your answer, or, if the complaint is not served ,.,ith this summons, to serve
`a notice of appearance, on the Plaintiff's attorney within 20 days after the service of
`this summons, exclusive of the day of service (or within 30 days after the service is
`complete if this summons is not personally delivered to you ,0vithin the State of Ne,v
`York); and in case of your ailure to appear or answer, judgment will be taken against
`you by default or the relief demanded in the complaint.
`
`The basis of venue is Queens County, New York
`Which is county of incorporation of Plaintif Federation of Kerala Associations in North America, Inc.
`
`Dated: New York, NY
`January 21, 2022
`
`LOANZON LLP
`
`by T , C Uf$;
`Tristan C. Loanzon
`Attoneys for Plaintiff
`1345 Avenue of the Americas Fl. 2
`New York, NY 10105
`(212) 760-1515
`
`1 of 17
`
`

`

`FILED: QUEENS COUNTY CLERK 01/21/2022 11:27 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 701449/2022
`
`RECEIVED NYSCEF: 01/21/2022
`
`Plaintiff,
`
`-against-
`
`VERIFIED COMPLAINT
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF QUEENS
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`701449/2022
`FEDERATION OF KERALA ASSOCIATIONS IN
`
` : Index No. ____________
`NORTH AMERICA, INC., JACOB PADAVATHIL,
`
`:
`
`:
`VINOD KEARKE, and ABRAHAM K. PHILIP,
`
`:
`:
`:
`
`:
`:
`:
`:
`:
`:
`Defendants.
`:
`- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
`Plaintiffs, the FEDERATION OF KERALA ASSOCIATIONS IN NORTH
`
`FOKANA, INC., MAMMEN C. JACOB, PHILIPOSE
`PHILIP, SAJIMON ANTONY, GEORGY
`VARUGHESE, and SUNNY MATTAMANA,
`
`AMERICA, INC. (herein, “the Federation”), Jacob Padavathil, Vinod Kearke, and Abraham K.
`
`Philip, by and through their undersigned attorneys, allege against Defendants FOKANA, INC.,
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`MAMMEN C. JACOB, PHILIPOSE PHILIP, SAJIMON ANTONY, GEORGY
`
`VARUGHESE, and SUNNY MATTAMANA (the “Defendants”), as follows:
`
`1.
`
`This is an action by Federation for declaratory judgment and violation of
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`General Business Law § 135, among other things, seeking an injunction order against Defendants
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`to stop their use of the Federation’s name and resemblance. Defendant FOKANA, INC., a
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`Maryland-registered corporation, is not the same corporation as the Federation and therefore
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`Fokana Inc.’s use of the Federation’s name and likeness violates GBL § 135.
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`2.
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`FOKANA, INC. purports to operate as the Federation after individual
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`Defendants conducted a sham election on July 28, 2020, electing themselves as officers of the
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`Federation. However, the Federation had its own officers then in place and certainly did not
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`consent to an election on July 28, 2020.
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`1
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`2 of 17
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`

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`FILED: QUEENS COUNTY CLERK 01/21/2022 11:27 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 701449/2022
`
`RECEIVED NYSCEF: 01/21/2022
`
`THE PARTIES
`
`The Federation of Kerala Associations in North America, Inc. (hereinafter, the
`
`3.
`
`“Federation”) is a New York corporation that was incorporated in 1985 in Queens County.
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`4.
`
`The Federation is the national umbrella organization for all member
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`organizations and individuals “to coordinate cultural, educational, social, and economic and
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`community affairs of the people of Kerala Origin residing in North America.” See Art. 1 of
`
`Constitution & By-Laws of the Federation, Exhibit 1.
`
`5.
`
`Plaintiff Jacob Padavathil is presently the President of the Federation and a
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`resident of Davie, Florida.
`
`6.
`
`Plaintiff Vinod Kearke is presently the Chairman of the Board of Trustees of
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`the Federation and a resident of Albertson, New York.
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`7.
`
`Plaintiff Abraham K. Philip is presently the Treasurer of the Federation and a
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`resident of Boynton Beach, Florida.
`
`8.
`
`FOKANA, INC. is a Maryland corporation that was incorporated in 2008, and
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`upon information and belief, has an office located at Defendant Philipose Philip’s residence at
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`Congers, New York 10920.
`
`9.
`
`10.
`
`FOKANA, INC. is not a subsidiary or parent entity to the Plaintiff Federation.
`
`FOKANA, INC. actively, and knowingly, engages in carrying out the wrongful
`
`acts alleged herein.
`
`11.
`
`Defendant Mammen C. Jacob is a resident of Weston, Florida, was the
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`Chairman of the Board of Trustee (“BoT”) of the Federation during the period 2018-2020. He
`
`led the BoT's formation of an Election Committee that conducted the sham election.
`
`12.
`
`Defendant Philipose Philip is a resident of Congers, New York, and the
`
`
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`2
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`3 of 17
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`

`

`FILED: QUEENS COUNTY CLERK 01/21/2022 11:27 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 701449/2022
`
`RECEIVED NYSCEF: 01/21/2022
`
`purported Chairman of the BoT and member of the Election Committee of the Federation. He
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`obtained his position through the sham election.
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`13.
`
`Defendant Sajimon Antony is a resident of Livingston, NJ, and a purported
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`General Secretary of the Federation. He obtained his position through the sham election.
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`14.
`
`Defendant Sunny Mattamana is a resident of Riverview, Florida, and purported
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`Treasurer of the Federation. He obtained his position through the sham election.
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`15.
`
`Defendant Georgy Varughese is a resident of Weston, Florida, and the
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`purported President of the National Committee pursuant to the sham election. He obtained his
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`position through the sham election.
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`JURISDICTION AND VENUE
`
`16.
`
`It is illegal in New York to use the name of a benevolent, humane, or
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`charitable corporation with the intent of obtaining a business or personal benefit or advantage
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`without the authorization of that corporation. Section 135 of the GBL provides, in relevant part,
`
`that:
`
`No person, society or corporation shall, with intent to acquire or obtain for
`personal or business purposes a benefit or advantage, assume, adopt or use the
`name of a benevolent, humane or charitable organization incorporated under the
`laws of this state, or a name so nearly resembling it as to be calculated to deceive
`the public with respect to any such corporation.
`
`17.
`
`The Court has jurisdiction to consider an application for a permanent injunction
`
`to restrain such illegal activity in a summary proceeding pursuant to Section 135:
`
`Whenever there shall be an actual or threatened violation of this section, an
`application may be made to a court or justice having jurisdiction to issue an
`injunction, upon notice to the defendant of not less than five days, for an
`injunction to enjoin and restrain said actual or threatened violation; and if it shall
`appear to the satisfaction of the court or justice that the defendant is in fact using
`the name of a benevolent, humane or charitable organization, incorporated as
`aforesaid, or a name so nearly resembling it as to be calculated to deceive the
`public, an injunction may be issued by said court or justice, enjoining and
`
`
`
`3
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`4 of 17
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`

`

`FILED: QUEENS COUNTY CLERK 01/21/2022 11:27 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 701449/2022
`
`RECEIVED NYSCEF: 01/21/2022
`
`restraining such actual or threatened violation, without requiring proof that any
`person has in fact been misled or deceived thereby.
`
`18.
`
`The elements of a Section 135 claim are: (1) Plaintiff must be “a benevolent,
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`humane or charitable organization incorporated under the laws of” the State of New York; (2)
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`Defendant must use either (a) the Plaintiff’s name or (b) a name so nearly resembling the
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`Plaintiff’s name “as to be calculated to deceive the public;” and (3) Defendant must act “with
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`intent to acquire or obtain for personal or business purposes a benefit or advantage.” Id.
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`19.
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`Plaintiff is not required to show that “any person has in fact been misled or
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`deceived thereby” to obtain injunctive relief. Id.
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`20.
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`In addition, this court has jurisdiction over this matter because it concerns the
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`rights of the Federation, which is domiciled in Queens County after its formation in 1985. For
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`that same reason, venue is proper in Queens County.
`
`21.
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`In addition, jurisdiction over Defendants is proper because they have
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`represented themselves as the rightful representatives of the New York-based Federation, and
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`solicited goodwill, funds, and donations from New York residents through mailings and
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`newspaper advertisements.
`
`
`BACKGROUND
`
`22.
`
`The Federation is governed by the Constitution of Federation of Kerala
`
`
`
`Associations in North America, Inc. (FOKANA), dated as of December 9, 2017 (hereinafter, the
`
`“Constitution”), see Exhibit 1.
`
`23.
`
`The Constitution provides that the National Committee shall “manage the
`
`activities of the Federation.” Const. Art. VI, Sec. 1. The President of the National Committee
`
`serves as the chief executive officer of the Federation. Id. at Sec. 7.
`
`
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`4
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`5 of 17
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`

`

`FILED: QUEENS COUNTY CLERK 01/21/2022 11:27 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 701449/2022
`
`RECEIVED NYSCEF: 01/21/2022
`
`24.
`
`The National Committee is “vested with and exercise all the powers of the Board
`
`of Directors when such Board is not in session and report its action to the Board at each session
`
`of the Board.” Art. VIII(A). The national committee is empowered to take action and make rules
`
`and regulations necessary for the general management of the affairs and activities of the
`
`Federation. The meeting of the Board shall be held prior to the meetings of the General Council.
`
`Const. Art. VII(A), Sec. 4; Kuriappuram Affid. ¶ 5.
`
`25.
`
`The Constitution provides that officers of the National Committee have a term of
`
`2 years, “with their terms of office ending on the next day following the last day of the
`
`convention provided the newly elected officers take charge simultaneously.” Id. at Art. VI, Sec.
`
`4.
`
`26.
`
`The “convention” refers to the biennial meeting of the “General Council of
`
`Representatives” in which the Federation, among other things, reviews the activities of the past
`
`two years, receives the audited financial reports, elects officers of the Federation, adopts
`
`amendments to the Constitution, and transacts other business included in the agenda. Id. at Art.
`
`V, Sec. 9.
`
`27.
`
`Early in year 2020, the COVID-19 crisis and the ensuing prohibition on in-person
`
`mass gatherings threatened the cancellation of the convention scheduled for July 2020. As a
`
`consequence, the National Committee decided to postpone the Federation’s General Council and
`
`election of officers and published to members a resolution that among other things postponed the
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`General Council, the convention, and election of officers to July 31, 2021. See June 11, 2020
`
`Resolution, Exhibit 2.
`
`
`
`5
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`6 of 17
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`

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`FILED: QUEENS COUNTY CLERK 01/21/2022 11:27 AM
`NYSCEF DOC. NO. 1
`
`INDEX NO. 701449/2022
`
`RECEIVED NYSCEF: 01/21/2022
`
`28.
`
`The National Committee’s June 11 Resolution was decided “[d]ue to
`
`circumstances beyond the control because of COVID-19, and in compliance with Center for
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`Disease Control and Prevention (CDC) guidelines to assemble and social gathering.” Exhibit 2.
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`29.
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`However, in contravention of the June 11 Resolution, the Federation’s Board of
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`Trustees chaired by Defendant Mammen C. Jacob, by appointing a 3-person Election
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`Committee, pushed to conduct an election of officers and did so on July 28, 2020 via online or
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`virtual voting. The virtual voting was illegally held even though the announcement from the
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`Election Committee stated that such virtual voting would be held on September 9, 2020. See
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`Exhibit 3 (indicating date of illegal election).
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`30.
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`The Chairman of the BoT, Defendant Mammen C. Jacob, was present during the
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`approval of the June 11, 2020 Resolution. His participation in the BoT’s unlawful appointment
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`of an Election Committee and scheduling of election for September 9, 2020 was especially
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`egregious given that he was present when the National Committee deliberated and arrived at the
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`June 11 Resolution.
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`31.
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`According to the website www.fokanaelection.org, new officers of the National
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`Committee were elected in the virtual election during the July 28 sham election. See Exhibit 4
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`(listing the new officers elected on July 28, 2020). Again, that election was originally noticed by
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`the Election Committee on September 9, 2020.
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`32.
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`Illegally elected during the July 28, 2020 election were Defendants Georgy
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`Varughese, Sajimon Antony, Sunny Mattamana and Board of Trustee Members. Those illegally
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`elected BoT members elected Philipose Philip as the chairman of BoT.
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`33.
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`The July 28 sham election, or even the irregularly scheduled September 9, 2020
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`election and General Council, violated not just the June 11 Resolution, but also the Constitution
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`of the Federation.
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`34.
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`First, while the BoT was delegated the authority to arrange and conduct an
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`election through the Election Committee, the BoT or the Election Committee does not have the
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`authority to conduct a virtual election because elections are held only during the convention or
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`General Council, and the Constitution explicitly states that “General Council meetings shall be
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`conducted in person.” Const. Art. V, Sec. 13a.
`
`35.
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`Second, the BoT violated Article V, Sec. 12 of the Constitution by holding the
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`virtual sham election because the National Committee had already set the date of July 31, 2021
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`as election date and extended all officers’ position to July 31, 2021 until the next election can be
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`held. Article V, Sec. 12 provides: “The Board of Trustees or the National Committee shall
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`specify the place, date and time of annual, special and requisitioned meetings of the General
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`Council.” Thus, the National Committee’s June 11 Resolution had already preempted any move
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`by the BoT to set a different date for the General Council meeting, in which elections are held
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`pursuant to the Constitution.
`
`36.
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`Third, in ignoring the June 11 Resolution by the National Committee, the BoT
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`violated Article VII(B), by declaring and conducting virtual election on July 28, 2020.
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`37.
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`In August 2020, three individuals filed a petition against several respondents in
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`the New York Supreme Court seeking a court declaration that the aforementioned illegal election
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`violated N.Y. Not for Profit Corporation Law 618. See Maret v. Jacob, Index No. 712736/2020
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`(Queens Co.). The petitioners in the August 2020 petition were Leela Maret, Alex Thomas, and
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`Joseph Kuriappuram, who alleged that the illegal election deprived them of an opportunity to run
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`as candidates in the July 2021 election as scheduled by the Federation. Respondents filed a
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`removal to move the petition to the U.S. District Court in Maryland. Petitioners opposed and
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`sought remand of the case to Queens Co. Supreme Court. The U.S. District Court agreed with
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`Petitioners and remanded the petition to Queens Co. Supreme Court. The petition is still pending
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`in Queens County.
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`Actions Post Sham Election
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`38.
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`After the illegal July 28, 2020 election, the illegally elected Defendants began
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`holding themselves out as the Federation, using the Federation’s image, likeness, and name to
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`solicit money donations for the Federation, solicit membership fees for the Federation, and
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`spend the Federation’s funds.
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`39.
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`Since the illegal election, the illegally elected Defendants began to merge the
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`operations and corporate identity of the New York-based Federation with the Maryland-based
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`entity called FOKANA, INC.
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`40.
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`In a lawsuit initiated by FOKANA, INC. in Maryland in April 2021 using the
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`name “Federation of Kerala Associations in North America, FOKANA, INC.,” it asked the
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`court to enjoin certain individuals from representing themselves as FOKANA, INC. FOKANA,
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`INC. argued in the Maryland lawsuit that it is the same entity as the Federation. On June 2,
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`2021, the Maryland Circuit Court dismissed the lawsuit because it had no jurisdiction over the
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`claim as none of alleged acts occurred in Maryland. (A copy of the dismissal order and
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`FOKANA, INC.’s petition are enclosed as Exhibit 5.)
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`41.
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`Since the illegal elections in July 2020, FOKANA, INC. has used and
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`obtained funds from the general public using the logo of the Federation in newspapers and
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`various promotional activities. The enclosed Exhibit 6 is a newspapers article from a
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`community newspaper called Emalayalee (https://www.emalayalee.com), dated December 2,
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`2020. The article discusses the activities of FOKANA, INC. led by the illegally elected officers
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`and uses the logo of the Federation, which reflects the Federation’s founding (not FOKANA,
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`INC.) in 1983 (see Exhibit 6). FOKANA, INC. was not established in 1983 but was
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`incorporated in 2008. See Exhibit 7.
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`42.
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`FOKANA, INC. continues to solicit money using the name and logo of the
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`Federation. Exhibit 8 is a newspaper article dated December 2021 in which FOKANA, INC. is
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`soliciting registration dues for a convention to be held in July 2021 as well as sponsorship
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`opportunities – all in the name of the Federation and the Federation’s logo.
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`43.
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`Upon information and belief, the officers of FOKANA, INC. and the
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`Individual Defendants are aware that FOKANA, INC. is not the same as the Federation, and
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`that the aforementioned activities are illegal.
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`COUNT ONE
`(Violation of GBL § 135)
`
`44.
`
`Plaintiff repeats all the allegations set forth in the preceding paragraphs as if
`
`
`
`fully set forth at length full herein.
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`45.
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`Plaintiff Federation is “a benevolent, humane or charitable organization
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`incorporated under the laws of” the State of New York.
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`46.
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`Defendants have used and are using the Federation’s name or a name so nearly
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`resembling the Federation’s name “as to be calculated to deceive the public.”
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`47.
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`Defendants have acted and are acting “with intent to acquire or obtain for
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`personal or business purposes a benefit or advantage” to the detriment of the Federation.
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`48.
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`Plaintiff Federation suffered damages as a result of Defendants’ violation of
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`GBL § 135 in the amount, to be determined at trial, of at least $1,000,000.00.
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`COUNT TWO
`(Unfair Competition)
`
`49.
`
`Plaintiff Federation repeats all the allegations set forth in the preceding
`
`
`
`paragraphs as if fully set forth at length full herein.
`
`50.
`
`The acts of Defendants constitute misappropriation, use of a false designation
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`of origin and unfair competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. §
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`1125(a).
`
`51.
`
`Defendants have acted with the intention of causing confusion, mistake and
`
`deception, and of misappropriation of the goodwill associated with Plaintiff Federation’s
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`trademarks and to profit thereby to the detriment of Plaintiff.
`
`52.
`
`By reason of Defendants’ unfair competition or inducement of others to
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`compete unfairly, or continued unauthorized use of Plaintiff’s marks in a manner which they
`
`know competes unfairly with Plaintiff, Plaintiff is suffering and will continue to suffer
`
`irreparable harm, and unless Defendants are enjoined from continuing these wrongful acts, the
`
`damages to Plaintiff will increase.
`
`53.
`
`In addition to an injunction, the Federation is entitled to profits, damages and
`
`costs, as provided by law, including treble damages and attorneys’ fees, in an amount to be
`
`determined at trial of at least $1,000,000.00.
`
`COUNT THREE
`(New York Common Law Trademark Infringement)
`
`54.
`
`Plaintiff Federation repeats all the allegations set forth in the preceding
`
`
`
`paragraphs as if fully set forth at length full herein.
`
`55.
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`Defendants’ wrongful conduct as alleged herein, constitutes trademark
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`infringement and unfair competition in violation of the common law of the State of New York.
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`56.
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`Plaintiff Federation has been injured in its business, property, and reputation,
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`and such injury is irreparable as a result of Defendants’ unlawful and infringing actions which
`
`were intentional, malicious and willful.
`
`57.
`
`By reason of Defendants’ unfair competition or inducement of others to
`
`compete unfairly, or continued unauthorized use of Plaintiff’s mark in a manner which they
`
`know competes unfairly with Plaintiff, Plaintiff is suffering and will continue to suffer
`
`irreparable harm, and unless Defendants are enjoined from continuing these wrongful acts, the
`
`damages to Plaintiff will increase.
`
`58.
`
`In addition to an injunction, the Federation is entitled to profits, damages and
`
`costs, as provided by law, including treble damages and attorneys’ fees, in an amount to be
`
`determined at trial of at least $1,000,000.00.
`
`COUNT FOUR UNFAIR COMPETITION
`(N.Y. Gen. Bus. Law. § 349)
`
`59.
`
`Plaintiffs repeat and re-allege each and every allegation in the foregoing
`
`
`
`paragraphs as if fully set forth herein.
`
`60.
`
`Defendants unlawfully used the Federation trademark for their own purpose
`
`and adversely to the interests of Plaintiff and its business venture. By unlawfully using
`
`the Federation trademark and causing actual confusion in the market, Defendants interfered with
`
`Plaintiffs’ business, and Defendants’ unlawful actions constitute unlawful, unfair, and fraudulent
`
`business practices in violation of N.Y. Gen. Bus. Law. § 349.
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`61.
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`As a direct result of said deceptive conduct, the Federation has sustained and is
`
`likely to continue to sustain damages.
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`62.
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`The Federation is entitled to exemplary and punitive damages by reason of
`
`Defendants’ willful, reckless, deliberate and intentio