Case 0:10-cv-00938—RHK—JSM Document 1
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`Filed 03/24/10 Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`, FOR THE DISTRICT OF MINNESOTA
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`Cosmetic Warriors Limited,
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`Plaintiff,
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`v.
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` §/§/\2\/\./‘~&%J'%/%/%/\/
`
`Glenn Abrahamson d/b/a
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`One Bath and Body,
`Wink Bath and Body, LLC,
`and John Doe Entities 1 through 5,
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`Defendants.
`
`Civil No.
`
`Judge
`
`Magistrate Judge
`
`Ml.;t®"““"
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`COMPLAINT
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`Plaintiff Cosmetic Warriors Limited for its Complaint against Defendants Glenn
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`Abrahamson d/b/a One Bath and Body, Wink Bath and Body, LLC, and John Doe
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`Entities 1 through 5, alleges as follows based on present knowledge, information, and
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`belief:
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`PARTIES
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`1.
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`Plaintiff Cosmetic Warriors Limited (CWL) is a corporation organized
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`and existing under the laws of the United Kingdom, with its principal place of business at
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`29 High Street, Poole, Dorset BHl 5 lAB in the United Kingdom. Plaintiff has extensive
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`operations in the United States, including a retail store within the State of Minnesota and
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`a website at www.lushusa.com.
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`2.
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`Upon information and belief, Defendant Glenn Abrahamson is an
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`individual who resides at 10165 Excelsior Avenue, Hanford, California 93230. Upon
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`Filed 03/24/10 Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
`, FOR THE DISTRICT OF MINNESOTA
`
`Cosmetic Warriors Limited,
`
`Plaintiff,
`
`v.
`
` §/§/\2\/\./‘~&%J'%/%/%/\/
`
`Glenn Abrahamson d/b/a
`
`One Bath and Body,
`Wink Bath and Body, LLC,
`and John Doe Entities 1 through 5,
`
`Defendants.
`
`Civil No.
`
`Judge
`
`Magistrate Judge
`
`Ml.;t®"““"
`
`COMPLAINT
`
`Plaintiff Cosmetic Warriors Limited for its Complaint against Defendants Glenn
`
`Abrahamson d/b/a One Bath and Body, Wink Bath and Body, LLC, and John Doe
`
`Entities 1 through 5, alleges as follows based on present knowledge, information, and
`
`belief:
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`PARTIES
`
`1.
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`Plaintiff Cosmetic Warriors Limited (CWL) is a corporation organized
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`and existing under the laws of the United Kingdom, with its principal place of business at
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`29 High Street, Poole, Dorset BHl 5 lAB in the United Kingdom. Plaintiff has extensive
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`operations in the United States, including a retail store within the State of Minnesota and
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`a website at www.lushusa.com.
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`2.
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`Upon information and belief, Defendant Glenn Abrahamson is an
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`individual who resides at 10165 Excelsior Avenue, Hanford, California 93230. Upon
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`
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`Case 0:10-cv-00938-RHK-JSM Document 1
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`Filed 03/24/10 Page 2 of 17
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`information and belief, Mr. Abrahamson does business as One Bath and Body, which has
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`a business address at 2611 Westgrove Drive Suite #109, Carroilton, Texas 75006.
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`3.
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`Upon information and belief, Defendant Wink Bath and Body, LLC
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`(“Wink”) is a limited liability company organized under the laws of Nevada with a
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`principal place of business at 711 South Carson Street, Carson City, Nevada 89701.
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`4.
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`Upon information and belief, Defendants John Doe Entities 1 through 5
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`(“John Doe Entities”) are unknown legal entities, the names and address or residence or
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`business of which are unknown.
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`NATURE OF ACTION AND JURISDICTION
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`5.
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`This is an action for trademark infiingement, unfair competition, and
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`dilution under the Lanham Act, 15 U.S.C. §§ 1051 et seq., deceptive trade practices under
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`the Minnesota Deceptive Trade Practices Act, Minn. Stat. § 325D.43 et seq., unlawful
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`trade practices under the Minnesota Unlawful Trade Practices Act, Minn. Stat. § 325D.09
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`et seq., and common law trademark infringement and unfair competition.
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`6.
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`This Court has jurisdiction over this action under Section 39 of the
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`Lanham Act, 15 U.S.C. § 1121, and Title 28 ofthe United States Code, §§ 1331 and
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`1338, and supplementaljurisdiction over CWL’s claims under state law under 28 U.S.C.
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`§ l367(a). This Court also has subject matter jurisdiction pursuant to 28 U.S.C. § 1332
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`because the matter in controversy in this action exceeds the sum or value of $75,000,
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`exclusive of interest and costs, and is between a citizen of the United Kingdom and
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`citizens of the states of California, Nevada, and Texas.
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`Case 0:10-cv-00938-RHK-JSM Document 1
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`Filed 03/24/10 Page 3 of 17
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`7.
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`This Court has personal jurisdiction over Defendants because inter alia
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`Defendants do business in thisjudicial district and the conduct of Defendants complained
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`of in this Complaint occurred in this judicial district.
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`8.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391.
`FACTS
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`A.
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`CWL, ITS MARKS, AND ITS PRODUCTS
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`9.
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`CWL is one of the world’s premier suppliers of bath, hair care, and beauty
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`products made from natural, wholesome ingredients. CWL’s products are sold at more
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`than one hundred retail stores operated in the United States, from its retail shops in many
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`foreign countries, as well as via its catalogs and Internet sites. CWL has a reputation of
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`providing competitively priced, high-quality bath, hair care, and beauty products and
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`services. Over the last several years, CWL’s business in the United States has grown
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`substantially and CWL is one of the nation’s best known retail providers of bath, hair
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`care, and beauty products and services.
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`10.
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`CWL has been commercially using the LUSH mark in the United States
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`since at least as early as 1996 and has used its LUSH FRESH HANDMADE
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`COSMETICS and DESIGN mark in the United States since at least 2002. CWL has used
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`these trademarks in connection with cosmetic preparations and affiliated products in the
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`nature of skin creams and moisturizers, perfumes, bath preparations, hair products
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`(including shampoos, conditioners, hair treatments, hair dyes, and styling gels), and retail
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`store services, including consultations and providing recommendations to customers.
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`CWL has given notice of its registered rights in its marks by using the ® symbol in
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`connection with its registered trademarks.
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`Case 0:10-cv-O0938~RHK-JSM Document 1
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`Filed 03/24/10 Page 4 of 17
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`11.
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`CWL owns, among others, the following United States Trademark
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`Registrations:
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`REGISTRATION NO.
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`REGISTRATION DATE
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`2,282,428 "
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`October 5, 1999
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`3,001 303 Z
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`September 27, 2005
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`3,008,685 /’
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`October 25, 2005
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`LUSH FRESH
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`COSMETICS and desi;
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`Copies of these registrations are attached as Exhibits A, B, C, D, and E.
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`12.
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`CWL has expended a substantial amount of money and effort in
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`advertising and promoting its LUSH® mark. CWL is among the most innovative and
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`creative companies selling cosmetics, soaps, hair products, bath products, perfumes, and
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`related products in the World today, and its products are frequently imitated. CWL and
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`its LUSH® mark are well known and consumers have come to know, rely upon, and
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`recognize the LUSH® mark as identifying CWL’s products and retail stores. As a result
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`of CWL’s substantial promotional, advertising, publicity, and public relations activities,
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`the LUSH® mark has acquired substantial goodwill and is an extremely valuable
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`commercial asset. CWL’s LUSH® mark is and has been since at least as early as 2006
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`famous, highly distinctive and recognized by the public as identifying the goods and
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`services of CWL.
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`13.
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`CWL’s LUSH® mark is distinctive and inherently distinctive, serving to
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`identify and indicate the source of CWL’s products to the consuming public, and to
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`distinguish CWL’s products and services from those of others.
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`Case 0:10—cv—OO938-RHK—JSM Document 1
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`Filed 03/24/10 Page 5 of 17
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`14.
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`CWL also has common-law rights in the LUSH® mark in Minnesota and
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`throughout the United States.
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`15. Many of CWL’s Products also have distinctive shapes and/or distinctive
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`packaging. CWL has been selling distinctively shaped Products and has been selling its
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`Products in distinctive packaging in the United States since at least as early as the mid
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`1990s. The unique, arbitrary, distinctive, and non—functional features of CWL’s Products
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`have caused the Products and their packaging to acquire and take on secondary meaning
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`in the minds of customers, resulting in a belief that CWL’s Products have a single source
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`of origin. Depictions of some of CWL’s distinctively shaped Products and distinctive
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`packaging can be found in the attached Exhibit F.
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`16.
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`CWL has expended a substantial amount of money and effort in
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`promoting its distinctively shaped Products and Products in distinctive packaging.
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`CWL’s substantial promotional, publicity, and public relations activities further promote
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`the recognition and goodwill associated with its Products.
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`17.
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`CWL also uses and has used distinctive design marks in the promotion of
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`its Products, including on its website at www.lushusa.com. Copies of pages from CWL’s
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`website depicting these distinctive design marks are attached as Exhibit G. These unique
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`design marks have acquired secondary meaning in the minds of customers as designating
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`CWL as the source of the products sold in connection therewith.
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`B.
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`The Defendants’ Unlawful Conduct
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`I8.
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`Defendants, with constructive and, upon information and belief, actual
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`knowledge of CWL’s LUSH® mark, began using the LUSH mark in interstate commerce
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`to advertise, promote, sell, and offer for sale their own line of bath and body products.
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`Case 0:10-cv-00938-RHK—JSM Document 1
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`Defendants’ promote their bath and body products inter alia via their website at
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`www.onebathandbody.com and via the link from that website to the One Bath and Body
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`Facebook page and Twitter feed. Examples of Defendants’ use of the LUSH mark are
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`attached as Exhibit H.
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`19.
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`Defendants are aware of the vast and valuable goodwill andlreputation
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`represented and symbolized by CWL’s LUSH® mark. Defendants also are aware that
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`CWL’s consumers and potential consumers rely upon CWL’s LUSH® mark as
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`distinguishing CWL’s products and services from the products and services of others.
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`20.
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`Defendanfis use of the LUSH mark is without attribution and without the
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`permission, consent, or authority of CWL, and is likely to cause confusion, mistake, or
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`deception.
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`21.
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`Defendants, with constructive and, upon information and belief, actual
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`knowledge of CWL’s proprietary Product design and Product packaging, began
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`advertising, promoting, offering for sale, and selling Products that have the same
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`distinctive and non—functional shape and packaging as CWL’s Products. Depictions of
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`some of Defendants’ Products having the same or similar distinctive and non—functional
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`shape and the same or similar packaging as CWL’s Products can be found at Exhibit F.
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`22.
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`Defendants are aware of the vast and valuable goodwill and reputation
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`represented and symbolized by CWL’s proprietary Product design and Product
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`packaging. Defendants also are aware that CWL’s consumers and potential consumers
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`rely upon CWL’s proprietary Product design and Product packaging as distinguishing
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`CWL’s products and services from the products and services of others.
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`Case 0:10-cv-00938-RHK-JSM Document 1
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`Filed 03/24/10 Page 7 of 17
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`23.
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`Defendant’s use of CWL’s proprietary Product design and Product
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`packaging is without the permission, consent, or authority of CWL, and is likely to cause
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`confusion, mistake, or deception.
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`24.’
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`Defendants, with constructive and, upon information and belief, actual
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`knowledge of CWL’s design marks, began advertising, promoting, offering for sale, and
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`selling Products using the same design marks as those used by CWL in promoting its
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`Products. A copy of a page from Defendants’ website depicting some of these design
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`marks is attached as Exhibit 1.
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`25.
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`Defendants are aware of the vast and valuable goodwill and reputation
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`represented and symbolized by CWL’s proprietary design marks. Defendants also are
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`aware that CWL’s consumers and potential consumers rely upon CWL’s design marks as
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`distinguishing CWL’s products and services from the products and services of others.
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`26.
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`Defendant’s use of CWL’s proprietary design marks is without the
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`permission, consent, or authority of CWL, and is likely to cause confusion, mistake, or
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`deception.
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`C.
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`Effect of Defendants’ Conduct on CWL and the Consuming Public
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`27.
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`Defendants have infringed upon the rights of CWL by offering for sale,
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`selling, advertising and distributing Products whose shape and packaging is identical or
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`nearly identical to the shape and packaging of CWL’s Products.
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`28.
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`Defendants’ use the LUSH mark, Product designs and Product packaging
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`that is CWL’s proprietary Product design and Product packaging, and CWL’s design
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`marks to promote, advertise, sell, and offer for sale competing or similar types of goods
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`Case 0:10-cv—00938-RHK-JSM Document 1
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`Filed 03/24/10 Page 8 of 17
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`as those offered by CWL in connection with its LUSH® mark, proprietary Product
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`design and Product packaging, and design marks.
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`29.
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`The Products Defendants advertise, promote, offer for sale, and sell using
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`the LUSH mark, CWL’s proprietary Product design and Product packaging, and CWL’s
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`design marks are offered and/or promoted in the same channels of trade as the products
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`and services offered by CWL in connection with its LUSH® mark, proprietary Product
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`design and Product packaging, and design marks. Defendants and CWL advertise,
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`promote, and offer their products and services to consumers in Minnesota and across the
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`United States, including through websites located on the Internet. For example,
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`Defendants’ products offered in connection with the LUSH mark, CWL’s proprietary
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`Product design and Product packaging, and CWL’s design marks are sold inter alia in
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`Target stores in Minnesota and elsewhere, including the Target store at 900 Nicollet
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`Mall, Minneapolis, Minnesota, and CWL’s products offered in connection with its
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`LUSH® mark, proprietary Product design and Product packaging, and design marks are
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`sold inter alia in Macy’s stores in Minnesota and elsewhere, including the Macy’s store
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`located at 700 Nicollet Mall, Minneapolis, Minnesota. CWL’s and Defendants’
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`advertising and promotional materials are directed to the same or similar consumers.
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`30.
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`Defendant’s continued use of the LUSH mark, CWL’s proprietary Product
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`design and Product packaging, and CWL’s design marks on its website, in its advertising
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`and promotional materials, and on its products is likely to diminish the goodwill
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`associated with and dilute the distinctive quality of CWL’s LUSH® mark, CWL’s
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`proprietary Product design and Product packaging, and CWL’s design marks.
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`31.
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`The Products Defendants advertise, promote, offer for sale, and sell using
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`the LUSH mark, CWL’s proprietary Product design and Product packaging, and CWL’s
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`design marks are provided and/or promoted, and are likely to continue being provided
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`and/or promoted, throughout the same geographic markets as the products and services
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`offered by CWL in connection with its LUSH® mark, proprietary Product design and
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`Product packaging, and design marks. Defendants derive and will continue to derive
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`substantial revenue from its Products advertised, promoted, offered for sale, and sold
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`using the LUSH mark, CWL’s proprietary Product design and Product packaging, and
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`CWL’s design marks.
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`32.
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`Defendants’ unauthorized use of the LUSH mark, CWL’s proprietary
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`Product design and Product packaging, and CWL’s design marks is likely to cause
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`confusion or mistake or to deceive consumers into believing that Defendants’
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`unauthorized products and services advertised, promoted, and offered under the LUSH
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`mark, CWL’s proprietary Product design and Product packaging, and CWL’s design
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`marks are sponsored, licensed or authorized by, or affiliated, connected or otherwise
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`associated with CWL or that CWL’s products and services offered under its LUSH®
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`mark, proprietary Product design and Product packaging, and design marks are
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`sponsored, licensed or authorized by, or affiliated, connected or otherwise associated with
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`Defendants.
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`33.
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`Upon information and belief, Defendants’ continued use of the LUSH
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`mark, CWL’s proprietary Product design and Product packaging, and CWL’s design
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`marks is with full knowledge of the prior ownership by CWL of CWL’s LUSH® mark,
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`proprietary Product design and Product packaging, and design marks and CWL’s rights
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`Case 0:10—cv-00938-RHK—JSM Document 1
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`Filed 03/24/10 Page 10 of 17
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`to use and control the use of its LUSH® mark, proprietary Product design and Product
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`packaging, and design marks.
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`34.
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`Defendants have acted and continue to act without regard to CWL’s
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`property rights and goodwill‘. On information and belief, the Defendants have
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`intentionally copied, mimicked, duplicated and made slavish imitations of CWL’s
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`products and packaging knowing that consumers would falsely associate Defendants’
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`goods with CWL and its products, and consumers would be confused as to the source and
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`origin of Defendants’ goods.
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`35.
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`As a result of Defendants’ unauthorized use of the LUSH mark, CWL’s
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`proprietary Product design and Product packaging, and CWL’s design marks, Defendants
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`are being unjustly enriched at CWL’s expense, and CWL is being damaged.
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`36.
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`Defendants’ unauthorized use of the LUSH mark, CWL’s proprietary
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`Product design and Product packaging, and CWL’s design marks in association with its
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`products has significantly injured CWL’s interests. Specifically, Defendants (a) have
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`traded upon and threaten to further trade upon the significant and valuable goodwill in
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`CWL’s LUSH® mark, proprietary Product design and Product packaging, and design
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`marks; (b) are likely to cause public confusion as to the source, sponsorship or affiliation
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`of Defendants’ products or services; (c) have damaged and threatens to further damage
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`CWL’s significant and valuable goodwill in CWL’s LUSH® mark, proprietary Product
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`design and Product packaging, and design marks; (d) have injured and threaten to further
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`injure CWL’s right to use CWL’s LUSH® mark, proprietary Product design and Product
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`packaging, and design marks as the exclusive indicia of origin of CWL’s bath, hair, and
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`beauty products and services in Minnesota and throughout the United States; and (e) have
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`Filed 03/24/10 Page 11 of 17
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`lessened the capacity of CWL’s LUSH® mark, proprietary Product design and Product
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`packaging, and design marks to indicate that CWL’s products are sponsored by CWL.
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`37.
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`Unless these infringing acts by Defendants are restrained by this Court,
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`they will cause irreparable injury to CWL and to the public, for which there is no
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`adequate remedy at law.
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`D.
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`Willful Nature of Defendants’ Conduct
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`38.
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`Defendants’ acts complained of herein have been malicious, fraudulent,
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`deliberate, willful, intentional, and in bad faith, with full knowledge and conscious
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`disregard of CWL’s rights. In View of the egregious nature of Defendants’ actions, this is
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`an exceptional case within the meaning of Section 35(a) of the Lanham Act, 15 U.S.C.
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`§ 1 1 l7(a).
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`COUNT I: FEDERAL TRADEMARK INFRINGEMENT
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`39.
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`CWL repeats the allegations of paragraphs 1-38 of this Complaint as if
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`fully set forth herein.
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`40.
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`The acts of Defendants complained of herein are likely to cause confusion,
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`mistake, or deception as to origin, sponsorship or approval and therefore constitute
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`federal trademark infringement in violation of 15 U.S.C. § 1114(1). By reason of
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`Defendants’ bad faith and willful infringement, CWL is entitled to recover actual
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`damages, treble damages, an accounting for Defendants’ profits, attorneys’ fees, and the
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`costs of this litigation pursuant to 15 U.S.C. § 1117 and injunctive relief pursuant to 15
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`U.S.C. § 1116.
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`Filed 03/24/10 Page 12 of 17
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`COUNT II: FEDERAL UNFAIR COMPETITION
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`41.
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`CWL repeats the allegations of paragraphs 1-40 of this Complaint as if
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`fully set forth herein.
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`42.
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`The acts of Defendants complained of herein constitute unfair competition
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`in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § l125(a). CWL is entitled to
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`recover actual and treble damages, attorneys’ fees, and the costs of this litigation pursuant
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`to 15 U.S.C. § 1117 and injunctive reliefpursuant to 15 U.S.C. § 1116.
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`COUNT III: DILUTION
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`43.
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`CWL repeats the allegations of paragraphs 1-42 of this Complaint as if
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`fully set forth herein.
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`44.
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`The acts of Defendants complained of herein constitute dilution under 15
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`U.S.C. § 1125(c)(1) and the common law. By reason of Defendants’ bad faith and
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`willfulness, CWL is entitled to recover actual and treble damages, attorneys’ fees, and the
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`costs of this litigation pursuant to 15 U.S.C. § 1117 and injunctive relief pursuant to 15
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`U.S.C. § 1116.
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`COUNT IV: COMMON LAW UNFAIR COMPETITION
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`45.
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`CWL repeats the allegations of paragraphs 1-44 of this Complaint as if
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`fully set forth herein.
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`46.
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`By engaging in the foregoing acts, Defendants have knowingly engaged in
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`unlawful passing off and competed unfairly with CWL in violation of the common law of
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`unfair competition in the State of Minnesota.
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`47.
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`CWL is entitled to recover actual and punitive damages for Defendants’
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`unfair competition.
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`Filed 03/24/10 Page 13 of 17
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`COUNT V: COMMON LAW TRADEMARK INFRINGENIENT
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`48.
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`CWL repeats the allegations of paragraphs 1-47 of this Complaint as if
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`fully set forth herein.
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`49.
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`CWL’s proprietary Product design, Product packaging, and design marks
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`are distinctive.
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`50.
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`Defendants’ use of CWL’s proprietary Product design, Product packaging,
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`and design marks is likely to cause confusion, mistake, or deception as to the source of
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`origin of Defendants’ products in that customers and potential customers are likely to
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`believe that Defendants’ products offered in connection with CWL’s proprietary Product
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`design, Product packaging, and design marks are provided by, sponsored by, approved
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`by, licensed by, affiliated or associated with, or in some other way legitimately connected
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`to CWL or its products and services.
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`51.
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`Defendants’ acts constitute trademark infringement under the common
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`52.
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`Defendants’ acts were taken in willful, deliberate, and/or intentional
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`disregard of CWL’s rights.
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`53.
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`CWL has suffered irreparable harm, for which it has no adequate remedy
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`at law, and will continue to suffer irreparable injury unless and until Defendants’
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`infringing acts are enjoined by this Court.
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`COUNT VI: DECEPTIVE TRADE PRACTICES
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`54.
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`CWL repeats the allegations of paragraphs 1-53 of this Complaint as if
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`fully set forth herein.
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`55.
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`The acts of the Defendants complained of herein constitute deceptive trade
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`practice in violation of the Deceptive Trade Practices Act of the State of Minnesota,
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`M.S.A. §§ 325D.44 et seq.
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`56.
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`As a result and proximate cause of Defendants’ deceptive trade practices,
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`CWL has suffered and will continue to suffer irreparable harm if the conduct of
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`Defendants is not enjoined.
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`57.
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`Pursuant to Minn. Stat. § 325D.45, CWL is entitled to recover its costs
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`and attorneys’ fees.
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`COUNT VII: UNLAWFUL TRADE PRACTICES
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`58.
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`CWL repeats the allegations of paragraphs 1-57 of this Complaint as if
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`fully set forth herein.
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`59.
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`The acts of the Defendants complained of herein constitute unlawful trade
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`_ practices in violation of Minn. Stat. § 325D.09 et seq.
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`60.
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`As a direct and proximate result of Defendants’ unlawful trade practices,
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`CWL has suffered and will continue to suffer irreparable harm if the conduct of
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`Defendants is not enjoined.
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`61.
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`The public is being harmed by Defendants’ use of the LUSH mark,
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`CWL’s proprietary Product design and Product packaging, and CWL’s design marks;
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`stopping Defendants’ actions will benefit the public in general and individual consumers.
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`62.
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`Pursuant to Minn. Stat. § 325D.15 and § 8.31, subd. 3a, CWL is entitled to
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`recover its costs, disbursements, and reasonable attorneys’ fees.
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`
`
`Case 0:10-cv—0D938-RHK-JSM Document 1
`
`Filed 03/2411 0 Page 15 of 17
`
`PRAYER FOR RELIEF
`
`WHEREFORE, CWL prays that:
`
`(a)
`
`Defendants, their officers, agents, servants, employees, attorneys, and all
`
`those persons in active concert or participation with any of them, be permanently
`
`enjoined from selling or offering for sale any confusingly similar copies of CWL’s
`
`proprietary Product design and Product packaging and from using any mark confusingly
`
`similar to the LUSH mark, confusingly similar copies of CWL’s proprietary Product
`
`design and Product packaging, and confusingly similar copies of CWL’s proprietary
`
`design marks;
`
`(b)
`
`Defendants, their officers, agents, servants, employees, attorneys, and all
`
`those persons in active concert or participation with any of them, be required to modify
`
`all packaging and promotional material to eliminate references to any mark confusingly
`
`similar to the LUSH mark, depiction of confusingly similar copies of CWL’s proprietary
`
`Product design and Product packaging, and any confusingly similar copies of CWL’s
`
`proprietary design marks;
`
`(0)
`
`Defendants, their officers, agents, servants, employees, attorneys, and all
`
`those persons in active concert or participation with any of them, be required to deliver to
`
`the Court for destruction, or show proof of destruction of, any and all labels, signs, prints,
`
`products, packages, wrappers, receptacles, and advertisements, and any other materials in
`
`Defendants’ possession or control that reference any mark confusingly similar to the
`
`LUSH mark, that depict or incorporate confusingly similar copies of CWL’s proprietary
`
`Product design and Product packaging, and that incorporate or display any confusingly
`
`similar copies of CWL’s proprietary design marks;
`
`
`
`Case 0:10-cv-00938-RHK-JSM Document 1
`
`Filed 03/24/10 Page 16 of 17
`
`(d)
`
`Defendants be ordered to file with this Court and to serve upon CWL
`
`within 30 days after the entry and service on Defendants of an injunction, a report in
`
`writing and under oath setting forth in detail the manner and form in which Defendants
`
`have complied with the injunction;
`
`(e)
`
`CWL recover all damages it sustains as a result of Defendants’
`
`infringement, unfair competition, and deceptive and unlawful trade practices and that said
`
`damages be trebled;
`
`(1)
`
`An accounting be directed to determine Defendants’ profits resulting from
`
`Defendants’ activities complained of herein, and that such profits be paid over to CWL,
`
`increased as the Court finds to be just under the circumstances of this case;
`
`(g)
`
`Defendants and all others acting in concert with them be directed to pay
`
`punitive damages to deter Defendants and all others similarly situated from like unlawful
`
`conduct in the future;
`
`(h)
`
`CWL recover its reasonable attorneys’ fees;
`
`(i)
`
`CWL recover its costs of this action and pre-judgment and post-judgment
`
`interest; and
`
`(j)
`
`CWL recover such other and further relief as the Court may deem just and
`
`appropriate.
`
`
`
`Case 0:10—cv-00938—RHK-JSM Document 1
`
`Filed 03/24/10 Page 17 of 17
`
`JURY DEMAND
`
`Under Fed. R. Civ. P. 38(b), CWL hereby demands a trial by jury on all issues
`
`triable as of right by ajmy.
`
`Dated: March 24, 2010
`
`’
`
`Respectfully submitted,
`
`COSMETIC WARRIORS LIMITED
`
`by its attorneys,
`
`s/ Rachel K. Zimmerman
`John A. Clifford, Reg. No. 134,181
`Rachel K. Zimmerman, Reg. No. 314,171
`MERCHANT & GOULD P.C.
`3200 IDS Center
`
`80 South Eighth Street
`Minneapolis, Minnesota 55402-2215
`Telephone: 612.332.5300
`Facsimile: 612.332.9081
`
`jc1ifford@merchantgou1d.com
`rzimmerman@merchantgou1d.com
`
`
`
`Case 0:10-cv-00938-RHK-JSM Document 1-1
`
`Filed 03/24/10 Page 1 of 29
`
`EXHIBIT A
`
`
`
`Inf. C!s.:r3 and 5
`Prior U;s.~r:1s.: 1]. 4; 6,, is, 44, 45,, 5:), 51 and 52
`Reg. No. 2,182,428
`'1tegisem=.d.oct'. S, 1999
`United States Patent and Trademark Office M
`_____..._._____....____._._._....___.._.__......___.._.____.._..
`
`TRADEMARK Z
`[’R1N_CiPAL REGISTER
`
`LUSH
`
`LUSH ‘LTD. {UNITED KINGDOM Connema-
`TIGN)-~
`M
`29 1/2 HI_GH- STREET _
`POOLE,’ DORSET E}-IE5 ma, U'N!TED. KING»-
`uom
`T
`
`PERFUMES; HUI‘?!-.MEDICATED
`L E03:
`TOILET AND COSMETIC. PRE-lPARA.TiON,S..
`NAMELY. LOTJDNS. Powoens AND CREAMS
`5-"ox USE. QN THE‘ SKIN. DENTEFRICBS, cos-
`METIC DEPILATORY CREAMS. PERSONAL
`DBODEIRANTS. PREPARATIONS 3-‘cm THE
`CARE o1=‘1-2-us 1-mm, .SHAMPC§OS, somzs,
`AND ESSENTEAL OILS FOR PERSONAL USE.
`IN CI_AS$ -3 (U-S. <:Ls.. I. u4..6;5.l3.. 51 AND 52).
`
`-1:»:
`
`-comjuexcra
`
`4-104995;
`
`FIRST use.
`.6-044395..
`V
`sum
`FOR: ME.DICATED HAlR_ ‘CARE.
`CARE, TEETH CARE AND mm. CARE;.'I’RE_Ff-
`ARATXONS, m CLASS 5 (U.S.C1,S. 6, Is, 44. .46.
`51 AND 52).
`IN COMMERCE’
`FIRST usa 4.40-1995;
`6-04995.
`T
`_
`‘OWNER or UNl_'1"ED_ KINGDOM REG. NO;
`2013346, DATED 3-7-1995, axmuss 43-74905.
`
`sax. NO. 75-247;-:03, FILED ~2—2s-:997,
`
`LESLEY LAMGTFIE; EXAMINING ATTORNEY
`
`
`
`Case 0:10-cv—0O938—RHK—JSM Document 1-1
`
`Filed 03/24/10 Page 3 of 29
`
`EXHIBIT B
`
`
`
`Case 0:10-cv-00938-RHK-JSM Document 1-1
`
`Filed 03/24/10 Page 4 of 29
`
`Int. C1335
`
`Prior us, Cls.: 1001161 am11o2
`Unitedjstates Patent and Trademark Office
`
`Reg. No. 2,353,433
`June15,‘2004A
`
`SERVICE MARK
`¥RINC{PAL REGISTER
`
`LUSH
`
`COSMETICS .WA'RR10RS LIMITED (UNITED.
`KINGDOM~ ‘CGMPA N3’)
`_
`_
`,
`_
`’
`HIGH STREET
`A
`29
`POOLE, DORSET EH15 IAB, U'N1"I'ED KINGDOM
`
`1="bn:.J3mNci.1Ncs TOGETHER, FOR THE. BENE»
`FET o1?‘oT1-IE1:-.s., 01-‘;
`-A VARIETY OFGOODS
`.ENABL!NGl CUSTOMERS‘ 1:0,‘ COI\’V_ENIENTLY
`YIEWAND PURCHASE/1‘HosE Goon; INA ma
`TAIL cosmancs AND- TOILETRIES STORE; THE-
`BRINGING TGGETHER, 8011 THE BENEFIT OF
`OTHERS, or-7 A VARIETS-‘LOP GOODS. ENABLING
`CUSTOMERS TO CONVENIENTLY {VIEW AND’
`PURCHASE moss Goons-FROM AfPv1AIL ORDER.
`§IA,TALQG'UE, -011 FROMAN INTERNET WEB 51:3‘
`
`SPECIALIZING IN THE MARKETING or cashmer-
`Ics AN’D’T0,ILE1‘RIE-S, .INCLASS'35 (us.
`too,
`101 mu 11:29.1‘
`
`PRIORIT? CLAIMED‘ UNDER sgc. 44(0) ON
`UNITED KINGDOM APPLICATION NO, 2308098..
`FILED 3.14.2002, REG. NO.
`:v.3os<:9s,. Dxwto 1.24-
`20133. EZXPIRES s-14.20121
`
`OWNER or us: REG. No. 2332.423;
`
`BER. NO. vs.1ss,s54,'1=1I, eD 11.25-21592;
`
`cvwmga sLQAN,, Exmmme ATTORNB1?
`
`
`
`Case 0:10-cv-00938-RHK—JSM Document 1-1
`
`Filed 03/24/10 Page 5 of 29
`
`EXHIBIT C
`
`
`
`
`
`<w..w,,m,w.;mrAv>Lq+:i»rwMl9#'0W4»)w9:\e¢~&¢'K~'&muQ‘1e2z<v'-w.wn.u/AmvwmVma.»‘7<»¢Kb-‘..
`
`
`
`Case 0:10-cv-00938-RHK-JSM Document 1-1
`
`Filed 03/24/10 Page 6 of 29
`
`Int. CL: 16
`
`j
`37, 38 and 50
`Prior U.S., Cls.:.2,,_5; 22, 23,
`Uni-ted States Patent and Trademark Office
`
`‘Reg. Nfl.. 3,901,383
`Registered'Sep.'27; 2005
`
`PRINCIPAL REGISTER
`
`.
`
`COSMETIC" WARRIGR-S." LIMITED (UNTTED
`KmGDoM%c0RPo1z.A*r1QN)2
`291110}; STREE'T.POOLE
`~
`~ ~-
`~
`’
`V,
`~
`DQRSET 3”” ‘AB’ WITEDLLWNGDOM
`roR:'cAm1;oGuas LiS1‘ING A1~:n-musm.-acr.—.
`we COSMETICS‘ AND '£'0ILE’ERY PRODUC’I'S;'
`PRINTED PRODUCT LISTS r-;EA_ruRa~zcs cosmar.
`xc moaucrs, AND Tommy PRODUCTS; PKIN-,
`TED POINT on sauzs DISPLAY m THE NATURE-:
`or srcsws AN5D DISPLAY BOARDS; ARI} PAPER
`AGING
`.
`;,' 52.5.
`:»2329,3,3s-
`.§_NDSf50,; LASSJMUS Cw "2 ’T
`’
`7
`
`FIRST USE s»O-3995;IN COMMERCE 5.0.1295.
`'
`.
`.
`,
`L
`,
`—
`.T ms MARK cowsxsrs OESTANDARD cama-
`ACTERS wx-mow cmavt TO ANY PARTICULAR
`POW: STYLE 5‘ZE~ '°F~=C°‘-GR‘
`
`owmzx 91? 15.5, am No.» 2,232,423.
`
`L
`V
`'
`._
`SER’ NO’ 7g"m*m~’ FILED 4'27
`.
`V1(
`.
`.
`é
`YSA D§?JESUS,EXAMII\‘ING’A'Fl7DRNEY
`
`_3,,0_,‘
`
`
`
`Case 0:10-cv-00938-RHK-JSM Document 1-1
`
`Filed 03/24/10 Page 7 of 29
`
`EXHIBIT D
`
`
`
`Case 0:10—cv-00938-RHK-JSM Document 1-1
`
`Filed 03/24/10 Page 8 of 29
`
`Int. CL: 3
`
`Prim: U.S. CIs.: E; 4; 6,50, 51 and 52
`
`United “States Patent and Trademark, Office
`
`Reg. No..3,008,685
`Régjsteafed ‘Oct. 25, 2005
`
`PRINCIPAL REGISTER
`
`ICOSMETIC WARRIORS LIMITED (UN{TED»
`T VKINGDOM CQRPORATIOP3?
`”
`'29'HIG}i‘STRjEET,I_?QOLE‘
`V
`'
`DORSET rams 12913; UNITED I<ING;DcM
`
`FOR: P'E«R'FUMES; NON-MEUICATED TOILET
`AND COSMETIC PREPARATIONS, NAMELY Lu.-
`TIQNS, Powpaxs AND CREAMS FDR use ox
`THE, SKIN; PREPARATIONS FOR CLEANSING
`A-ND
`as THE sxm; BATH )o1Ls IN sow:
`AND‘ LIQUID FORM; PERSONAL DEODQRANTS;
`mm CARE; BREPARATIONS; Q31; BASED MAS-
`sacqe BARS THAT MELTON CONTACT WITH 11:12
`SKIN; Ts,or.Tm=
`MOISTURIZERS‘
`SKIN
`co1~mI'noNERs JN ='ITE~IE FORM ,oFȤ A PASTE on
`-mace MASKS Bi§{1'HsBARS T1~£AT‘M£ET ON ame-
`TAC-'1' wrm HOT WATER TC) PRODUCE A soapy
`
`on 011:.’ SUSPENSION; $QAP_S;‘ mp ESSEATIAL
`011.5 Lmnpensomn usrs. INCLASS 3611-3‘
`1.
`4, 5, 50,51 AND 52)..
`
`mzsr us.-2 4.1o—199s;xN‘ COMMERCE 64>.;995.M
`
`ms MARK cows:s'rs.o1= STANDARD cum.
`ACTERS WITHOUT CLAIM TO ANY PARTECULAR
`mm, STYLE. S1ZE,OR comx
`
`OWNER or us.‘ REG. Nos. 2;.;a2,42a AND
`2,353,433;
`
`sex. N0..7S«'-1'G8.752-. FILED 4427-2004;.
`
`1\d.[CHAEL—WEBSTER, EXAMINING -ATTO‘RNEY‘
`
`
`
`Case 0:10—cv-00938-RHK-JSM Document 1-1
`
`Filed 03/24/10 Page 9 of 29
`
`EXHIBIT E
`
`
`
`Case 0:10-cv-00938—RHK-JSM Document 1-1
`
`Filed 03/24/10 Page 10 of 29
`
`Int. CL: 3
`
`Prior U.S. Cls.: 1, 4, 6, 50, 51 and 52
`
`United States "Patent" and Trademark Office
`
`Reg. No. 3,102,767
`Registered June 13. 2006
`
`TRADEMARK
`PRINCIPAL REGISTER
`
`FRESH W&fH)MsiiJE CDSM£T1{S
`
`COSMETIC '35/ARRIORS LIMETED {UNITE}?
`KINGDOM COMPANY)
`29 HIGH STREET, POOLE’
`DORSET 3315 ma, UNITED KINGDOM
`
`FOR: PERFUMES; NONMEDICATED TOILET
`AND COSMETIC PREPARATIONS, NAME-ELY L0-
`TIONS. POWDERS AND CREAMS FOR‘ USE ON
`THESKIN; PREPARATEONS FOR CLEANSING
`AND -CARE or THEVSKIN; BATH OILS IN 501.110
`AND LIQUID FORM; PERSONAL nsonomms;
`mam CARE PREPARATIONS; OIL BASED MAS-
`saea BA as THAT MELT ON CONTACT wrm TI-IE
`sxm; SOLID MOISTURIZI-2RS' AND SKIN CONDI-
`noI~:ERs.1N THE FORM 09' A PASIE OR FACE
`MASK; BATH BARS THAT MELT ox CONTACT
`wrm HOT WATER TO rxosucs A SOAPY on
`OILY SUSPENSION; SOAPS; AND ESSENTIAL OILS
`FOR PERSONAL use. IN CLASS 3 (us. CLS. 1, 4, 5,
`so, 51 AND 52).
`
`N0 CLAIM IS MADE TO THE EXCLUSIVE‘
`RIGHT TO USE FRESH HANDMADE COSMETICS,
`APART FROM THE MARK AS "SHOWN.
`
`THE. COLORS GREEN‘, YEL LOVV, WHITE AND
`BLACK IS/‘ARE CLAEMED AS A FEATURE OF THE
`MARK.
`
`THE COLOR GREEN APPEARS IN THE LARGER
`OVAL, THE COLOR YELLOW APPEARS IN THE
`SMALLER OVAL, THE _CQLOR"WH1'1"E APPEARS IN
`ALL WORDING, AND THE COLOR BLAGC AP-
`PEARS IN THE RECTANGULAR, BACKGROUND‘
`DESIGN AND THE BORDERS OF THE LETTERING
`FOR THE, WDRUS.
`
`‘SI-ZR. NO. 7662?,0'78_. FILED I— -3005,
`
`FIRST US
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