8/10/2019 Kliot v. Mike's Hard Lemonade complaint.pdf
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JS44C/SDNY
REV.
4/2014
PLAINTIFFS
RONALD
KLIOT
JUDGE
CASE
CIVIL
COVER
The JS-44 civil
cover sheet
and (he information contained I
pleadings orotherpapersas
required
by
law,
except as pre
Judicial
Conference of the
tinted
Stales InSeptember 197
Initiating tne civildocket sheet.
i required
DEFENDANTS
MARK ANTHONY INTERNATIONAL SRL
ATTORNEYS (FIRM
NAME.
ADDRESS. AND TELEPHONE
NUMBER
ChristianJ. Jensen. Esq. c/0 OlenderFeldman LLP
42 2
Morris
Avenue
Summit, New
Jersey
07901
ATTORNEYS
(IF
KNOWN)
DavW
H.Bernstein. Esq., c/0 Debevoise PlimptonLLP
919
3r d
Avenue
New York,
New
York 10022
CAUSE
OF ACTION
CITE
THE U.S.
CIVIL
STATUTE UNDER WHICH
YOU
ARE FILING
AND
WRITE A
BRIEF
STATEMENT OF CAUSE}
DO NOTCrTE
JURISDICTIONAL
STATUTESUNLESS
DIVERSITY
Dedaratory judgment underTrademark Uws
of
the
U.S.. 15USC Sec.1051. et seq.,
15
USC
Sec.1225.
et
seq., and
28
USC Sec.2201.220:
Has this action, case,
or proceeding,
or one
essentially the
same
been
previously
filed
In SDNY at any time? Nd2jVesQjudge Previously
Assigned
Ifyes. was this case Vol, Invol. Dismissed, No Q Yes lfves'S^e Cast No-
No 0 Yes n
NATURE OF
SUIT
ISTHISAWINTERNATIONAL AP.STTRATIONCASE?
nAaANMlNONBQXWW
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ACTIONS
UNDER STATUTES
eo imwcT PERSONAL INJURY
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SLANDER
[ ]330 FEDERAL
EMPLOYERS
LIABILITY
[] WO MARINE
[ JMS MARINEPRODUCT
LIABILITY
[ 1360
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VEHICLE
[ J3SS
MOTOR VEHICLE
PRODUCT LIABILITY
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INJURY
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PERSONAL INJURY-
MEO MALPRACTICE
[1110
I ]129
111*
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INSURANCE
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MJUERACT
NEGOTIABLE
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RECOVERY OF
OVERPAYMENTS
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RECOVERYO F
DEFAULTED
STUDENT
LOANS
1EXCLVETERANS)
RECOVERY OF
OVERPAYMENT
OF
VETERANS
BENEFITS
STOCKHOLDERS
SUITS
OTHER
CONTRACT
CONTRACT
PRODUCT
LIABILITY
FRANCHISE
nRftftWBtlW KMKrniRtMHALTY
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I 1370 OTHER FRAUD
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USC 1SS
(
)423
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ALL OTHER
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t 1S60 OTHERPERSONAL
PROPERTY DAMAGE
| ]36 PROPERTY DAMAGE
PRODUCT
LIABILITY
PRISONERPETITIONS
I )63
ALIEN DETAINEE
[
510 MOTIONS TO
VACATE SENTENCE
28USC22S5
| 1630 HABEAS CORPUS
[] 535DEATHPENALTY
t 1540MANDAMUS S OTHER
ACTIONSUNDHt STATUTES
CM RIGHTS
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CW
RIGHTS
(Non-Priianar)
[ 1441 VOTING
UNEMPLOYMENT
[ 14*3 HOUSING/
ACCOMMODATIONS
t | 445 AMERICANS WITH
DISABILITIES-
EMPLOYMENT
[ 1446 AMERICANSWITH
DISABILITIES-OTHER
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IMMIGRATION
[ 14S2 NATURALIZATION
APPLICATION
[
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CONDITIONS OF CONFINEMENT
Checktfdemanded In
complaint
PROPERTY
RIGHTS
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fPWCe/WxWOWEBCWONlW ORIGIN
SHCW D2
Ramovedtrom
Oj h a L_
Yr. > __)
RECEIPT* C ^ y^ Attorney BarCode
4515961
Magistrate Judge is to be designated by the Clerkof the
Magistrate Judge
Ruby J. Krajick. Clerk of Court
by.
Deputy Clerk, DATED,
UNITED
STATES DISTRICTCOURT (NEWYORKSOUTHERN)
is so Designated.
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GE.W
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF
NEW YORK
14 CV 8592
RONALD
KLIOT,
Civi l Act ion No.:
>
f
Plaintiff, tn o
,-,
en __
-against-
COMPLAINTS i r
~n
o
P
MARK ANTHONY INTERNATIONAL SRL, g o
Defendant .
x
COMPLAINT FOR DECLARATORY JUDGMENT
Plaintiff Ronald Kliot ( Kliot or Plaintiff) by way
of
this Complaint for Declaratory
Judgment against defendant MarkAnthonyInternational SRL( Defendant ).
NATURE
O F
ACT ION
1. Plaintiff seeks a declaratory judgment of non-infringement of trademark rights
against Defendant, and a declaratory judgment that any alleged trademark or trade dress rights
assertedbyDefendant withrespect to Plaintiffs registered trademark is invalidand unenforceable.
T H E P AR TIE S
2. Plaintiffis an individual residing in Cedarhurst, New York and is the owner
of
the
registeredtrademark HARD, RegistrationNo. 3,613,372(the Mark ).
3. Defendant asserts that it is a corporation organized and existing under the laws of
Barbados with its principal place of business at Rendezvous Main Road, Worthing BB15006,
Christ Church, Barbados,
West
Indies.
JURISD ICT ION
AND
VENUE
4. This is an action for a declaratory judgment arising under the Trademark Laws
of
the United States, 15 USC 1051, et seq. (the Trademark Act ), 15 U.S.C. 1125, et seq. (the
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LanhamAct ), and 28 U.S.C. 2201, 2202 (the Declaratory Judgment Act ). Thus, this Court
has original jurisdiction over the subject matter
of
this action.
r r
5. Defendant is also subject to personal jurisdiction in this Court because Defendant
regularly conducts business and uses its trademarks at issue in this litigation in the State
of
New
York and within this District . In addition, false assertions of alleged infringement of trademarks
were directed to the Plaintiff in the State
of
New York. Thus, this Cour t has both general and
specific personal jurisdiction over Defendant.
6. Venue of this action is proper in this District under 28 U.S.C. 1391(b)(l) and (2)
because Defendant is subject to personal jurisdiction of this Court and qualif ies as a resident of
this District. In addition, a substantial par t
of
the events giving rise to Plaintiffs claims has
occurred,
and
will continue to occur, within this District.
FAC TUAL BACKGROUND
7. The Mark was registered with the United States Patent and Trademark Office
( USPTO ) on April 28, 2009. The Mark was registered for non-alcoholic energy beverages in
a variety of flavors, namely cola, citrus, tonic, club soda and energy flavored.
8. The Mark has been continuously used in commerce, including through Plaintiffs
businesses HARD Beverages
of
America, LLC and HARD Beverages International, Inc. in
connection with the goods for which Plaintiffobtained registration.
9. The Mark has not been used in connection with the sale
of
alcoholic beverages.
10. Defendant
asserts
that it
has
used
the
marks
MIKE S HARD,
MIKE S
HARD
LEMONADE,
MIKE S
HARD CRANBERRY LEMONADE, MIKE S HARD TEA, and
MIKE'S HARD PUNCH, in connection with various alcoholic beverages. Various
of
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F IR ST COUNT
Non-Infringement)
22. Plaintiff repeats and realleges its allegations set forth in paragraphs 1-21 hereof as
if
set forth fully herein.
23. As a justiciable controversy exists by way
of
threat
of
immediate litigation, as well
as the action taken by Defendant in the USPTO, Plaintiff seeks relief from this Court.
24. Plaintiff is entitled to a declaratory judgment that it is not infringing, and that
Plaintiffs Mark does not infringe, and has not infringed, any valid trademark owed by Defendant.
SECOND
COUNT
Unenforceabi l i ty o f Mark ,
25. Plaintiffrepeats and realleges its allegations set forth in paragraphs 1-24 hereofas
if set forth fully herein.
26. As a justiciable controversy exists by way
of
threat of immediate litigation, as well
as the action taken by Defendant in the USPTO, Plaintiffseeks
relief
from this Court.
27. Plainti ff is entitled to a declaratory judgment that any and all
of
Defendant's marks
using the phrase Hard with respect to the sale on non-alcoholic beverages are unenforceable,
and lack the legal requirements to be protectable under law, and infringe upon Plaintiffs Mark.
THIRD
COUNT
Validity o f Mark
28. Plaintiffrepeats and realleges its allegations set forth in paragraphs 1-27 hereof as
if set forth fully herein.
29. As a justiciable controversy exists by way
of
threat
of
immediate litigation, as well
as the action taken
by
Defendant in the USPTO, Plaintiffseeks relief from this Court.
30. For all
of
the reasons found by the USPTO in granting Plaintiff registration
of
Plaintiffs Mark, Plaintiffs Mark is a valid and protectable trademark subject to continued
registration
with
the
USPTO.
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WHEREFORE,
PlaintiffDemands that Judgment be entered as follows:
A. Declaring Plaintiffs Mark is not confusing similar to, and does not infringe upon,
t
Defendant 's Marks and may be used, and registration shall continue with the USPTO, without
interference from Defendant;
B. Declaring Defendant's Marks invalid for use in connection with the sale or
promotion
of
non-alcoholic beverages;
C. Awarding Plaintiff its attorneys' fees, costs, and expenses incurred in connection
with this action; and
D. Awarding such other and further relie fas this Court deems
just
and proper and as
permitted
by
law.
Dated: October 2~I 2014
Respectfully submitted,
OLENDERFELDMAN LLP
BVS
Chris tian
J. l ensen
- CJ1331
422 Mo:
Summj
9 8 9
908-810-6631 (fax)
Attorneys for
Plaintiff
ersey
07901