Cheddar Bob's v. Macsnmelts - trademark complaint EDNY.pdf

8/18/2019 Cheddar Bob's v. Macsnmelts - trademark complaint EDNY.pdf

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK-------------------------------------------------------------------XCHEDDAR BOB’S INC,

Plaintiffs,-against-

MACSNMELTS MANAGEMENT COMPANY, LLC,MACSNMELTS 1, LLC, MACSNMELTS 2, LLC, andROBERT CROAK

Defendants.-------------------------------------------------------------------X

CIVIL ACTION NO. 2:16-cv-1331

COMPLAINT

Plaintiff Cheddar Bob’s Inc., (hereinafter, “Plaintiff”) by and through its undersigned

counsel, for its complaint against Defendants Macsnmelts Management Company, LLC, an Ohio

Limited Liability Company with an address at 1309 Bryden Road, Columbus, OH 43205,

Macsnmelts 1, LLC, an Ohio Limited Liability Company with an address at 1300 Bryden Road,

Columbus, OH 43205, and Macsnmelts 2, LLC, an Ohio Limited Liability Company with an

address at 1309 Bryden Road, Columbus, OH 43205, and Mr. Robert Croak, an individual with an

address at 148 Main St. Toledo, O H 43605 states and alleges the following:

NATURE OF ACTION

1. This is an action for trademark infringement and false designation of origin under the

Trademark Act of 1946, as amended (The Lanham Act, 15 U.S.C. §1050 et seq .), false designation

of origin under Lanham Act, 15 U.S.C. §1125(A), false designation of origin under Lanham Act

15 U.S.C. §1125(A), unfair business practices under N.Y. GEN. BUS. LAW §349, injury to

business reputation; and unfair competition under N.Y. GEN. BUS. §360-L, and common law

trademark infringement and unfair competition from Defendants’ deliberate and unconscionable

actions in infringing on Plaintiff’s trademarks, including Plaintiff’s MAC & MELTS mark and

Case 2:16-cv-01331-LDW-AYS Document 1 Filed 03/17/16 Page 1 of 22 PageID #: 1


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related marks within Plaintiff’s MAC & MELTS family of marks, by reproducing, infringing upon,

and diluting Plaintiff’s MAC & MELTS trademark, in a manner that infringed upon Plaintiff’s

MAC & MELTS mark and made willful, unauthorized use of said marks in a calculated effort by

Defendants to respectively enrich themselves through unauthorized use of Plaintiff’s intellectual

property.

2. In so doing, Plaintiffs have been grievously injured by Defendants’ infringements, as they

have been undertaken without Plaintiff’s permission, and without his control, and in a manner

that damages the image associated with Plaintiff’s marks, brand, work, and intellectual property.THE PARTIES

3. Plaintiff Cheddar Bob’s Inc., is a New York corporation with a principal place of

business at 684 Stewart Avenue, Garden City, NY 11530. Plaintiff provides restaurant services

under the trademarks MAC & MELTS (word mark) and the MAC & MELTS (stylized plus

design) mark depicted below:

4. Plaintiff’s restaurant services under the MAC & MELTS trademarks combine typical

comfort food, such as macaroni and cheese and grilled cheese, with artisan and gourmet

ingredients to create unique and proprietary variations of classic comfort foods for Plaintiff’s

customers. Plaintiff offers a vast menu of offerings of variations of gourmet and specialty

macaroni and cheese, grilled cheese sandwiches, soups, salads and other offerings in a unique



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environment designed to capitalize on the public’s desire for delicious tasting comfort foods.

Consumers seeking Plaintiff’s restaurant services can review the menu and photos of food on

Plaintiff’s Website, www.macnmelts.com , or visit Plaintiff’s restaurant location at 684 Stewart

Avenue, Garden City, NY, 11530.

5. Upon information and belief, Defendant Macsnmelts Management Company LLC.

(“Macsnmelts ”) is an Ohio Limited Liability Company that transacts and engages in business

and business relationships in the State of New York, and has a principal place of business located

at 1309 Bryden Road, Columbus, OH 43205.

6. Upon information and belief, Defendant Macsnmelts 1, LLC (“ Macsnmelts 1 ”) is an

Ohio Limited Liability Company that transacts and engages in business and business

relationships in the State of New York with a principal place of business located at 1300 Bryden

Road, Columbus, OH 43205.

7. Upon information and belief, Defendant Macsnmelts 2, LLC (“ Macsnmelts 2 ”) is an

Ohio Limited Liability Company that transacts and engages in business and business

relationships in the State of New York with a principal place of business located at 1309 Bryden

Road, Columbus, OH 43205.

8. Upon information and belief, Defendant Robert Croak (“ Croak ”) is an individual

transacts and engages in business and business relationships in the State of New York with an

address at 148 Main St., Toledo, O H 43605.


http://www.macnmelts.com/http://www.macnmelts.com/http://www.macnmelts.com/http://www.macnmelts.com/


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9. Defendants Macsnmelts, Macsnmelts 1, Macsnmelts 2, and Croak are collectively

referred to as “ MMC ” or “ Defendants .”

10. Upon information and belief, MMC owns, operates, and provides restaurant services at

the Westgate Village Plaza, which is located at 3330 W. Central Avenue, Toledo, O H 43606.

11. Upon information and belief, Defendants own, operate, and provide restaurant services

under the designation “MACS N’ MELTS.” Under the “MACS N’ MELTS” designation,

Defendants provide restaurant services for casual fast food, such as macaroni and cheese andgrilled cheese, using artisan and local ingredients. Defendants also own and operate the website

http://www.macsnmelts.com (“ MMC Website ”), which provides MMC’s menu and information

regarding its restaurant locations.

JURISDICTION AND VENUE

12. This Court has original jurisdiction over the subject matter of this action pursuant to

28 U.S.C. §§ 1331 (federal question), 1338(a) (acts of Congress relating to trademarks), and

1338(b) (pendent unfair competition claims) as well as pursuant to 15 U.S.C. §1121 (original

jurisdiction of all actions arising under Lanham Act). This Court has supplemental jurisdiction

over the asserted state tort claims pursuant to 28 U.S.C. § 1367(a).

13. This Court has jurisdiction over Plaintiffs' state-law claims pursuant to 28 U.S.C. § 1332,

because there is diversity of citizenship among the parties and the amount in controversy exceeds

$75,000, and to 28 U.S.C. § 13 67(a), because those claims that are so related to claims in the

action within this Court's original jurisdiction that they form part of the same case or controversy



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under Article III of the United States Constitution.

14. This Court also has specific personal jurisdiction over Defendants pursuant to N.Y.

C.P.L.R. §§302(a)(3) in that Defendants have committed tortious acts without the state causing

injury to Plaintiff and that, upon information and belief, regularly does or solicits business, or

engages in any other persistent course of conduct, or derives substantial revenue from goods

used or consumed or services rendered, in the state or should reasonably expect the act to have

consequences in the state and derives substantial revenue from interstate or international

commerce.

15. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and 1391(c) as the

Defendant is subject to the Court’s personal jurisdiction and, upon information and belief, a

substantial part of the events or omissions giving rise to the claim occurred in the Eastern District

of New York.

FACTS

16. Since at least as early as October 2012, Plaintiff has owned, maintained, and developed

U.S. common law and equivalent trademark rights in the mark “MAC & MELTS” for use in

conjunction with restaurant services, namely, providing of food and beverages for consumption

on and off the premises (the “ MAC & MELTS Mark ”).

17. Plaintiff has used the MAC & MELTS Mark on the Plaintiff’s Website,

http://macnmelts.com, and provided restaurant services at its restaurant located at 684 Stewart

Avenue, Garden City, NY 11530.



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18. In addition to its marketing and promotional activities using the MAC & MELTS mark,

Plaintiff and the MAC & MELTS Mark have received unsolicited media exposure wherein the

MAC & MELTS Mark is associated with Plaintiff. For example, Plaintiff and its MAC &

MELTS offerings have been featured on various Websites and blogs, including TripAdvisor,

Newsday.com, Yelp, YouTube, the Automobile Association of America, and elsewhere.

19. Plaintiff continuously used the MAC & MELTS Mark in interstate commerce since at

least as early as October 2012, in connection with restaurant services.

20. Plaintiff, from October 2012 to the present has made bona fide use of the MAC &

MELTS Mark in the ordinary course of trade.

21. As a result of the widespread use and display of the MAC & MELTS Mark, the public

use the MAC & MELTS Mark to identify and refer to Plaintiff’s restaurant services, the public

and the trade recognize that such designations refer to high quality restaurant services emanating

from a single source, and said MAC & MELTS Mark has built up secondary meaning and

extensive goodwill.

22. In addition, Plaintiff is the owner of United States Trademark Registration No. 4,686,669,

registered on February 17, 2015, for MAC & MELTS (stylized plus design see below) for

“Restaurant services, namely, providing of food and beverages for consumption on and off the

premises” in International Class 43 (hereinafter, the “’ 669 Mark” ). The ’669 Mark is now valid,



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subsisting, uncancelled, and unrevoked.

23. The ’669 Mark has been used in commerce continuously since on or about October 2012

(1) in connection with and to identify Plaintiff’s services enumerated above and (2) to distinguish

said services from similar services offered by other companies, by, and without limitation, prominently displaying MAC & MELTS (design) on said services.

24. The ’669 Mark and the MAC & MELTS Mark are collectively referred to as “ Plaintiff’s

Marks .” True and accurate copies of Plaintiff’s use of the Plaintiff’s Marks with restaurant

services, along with a copy of the registration certificate of ’669 Mark, are attached hereto as

Exhibit A .

25. As a result of Plaintiff’s widespread, continuous and exclusive use of Plaintiff’s Marks to

identify its restaurant services and Plaintiff as its source, Plaintiff owns valid and subsisting

federal statutory and common law rights in Plaintiff’s Marks.

26. Plaintiff offers its goods and services under Plaintiff’s Marks to consumers seeking its

restaurant services.

Defendants’ Infringement of Plaintiff’s Marks



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32. Upon information and belief, on or about October, 2014, Defendants opened a restaurant

in Westgate Village Plaza located at 3330 West Central Avenue Toledo, Ohio 43606 using the

marks MACS N’ MELTS, MACS N’ MELTS GOURMET MACARONI & GRILLED

CHEESE, and the design marks depicted below (collectively, the “ MACS N’ MELTS Marks ”)

without license or permission of Plaintiff to use Plaintiff’s Marks.

33. Defendants’ use of the MACS N’ MELTS Marks, also used on the MMC Website, are

used in tandem with restaurant services.

34. True and accurate copies of Defendants’ use of the MACS N’ MELTS Marks in tandem



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with restaurant services and on the MMC Website are provided in Exhibit B .

35. Upon information and belief, Defendants use the MACS N’ MELTS Marks with the

statutory notice of registration by using the ® symbol in connection with the MACS N’ MELTS

Marks. However, upon information and belief Defendants have not secured any federal

trademark registrations for any of the respective MACS N’ MELTS Marks.

36. Upon information and belief, Defendants’ MACS N’ MELTS Marks are used connection

with restaurant services. As such, Defendants’ goods and services under the MACS N’ MELTSMarks are identical to or substantially similar to and competitive with Plaintiff’s restaurant

services offered with Plaintiff’s Marks.

37. Upon information and belief, Plaintiff’s restaurant services provided under Plaintiff’s

Marks and Defendants’ restaurant services provided under the MACS N’ MELTS Marks are sold

in the same channels of trade and bear a similar cover price.

38. The MACS N’ MELTS Marks used by Defendants are substantially similar to Plaintiff’s

Marks. The MACS N’ MELTS Marks and Plaintiff’s Marks both begin with the word “MAC,”

and end with the term “MELTS.” In addition, both the MACS N’ MELTS Marks and Plaintiff’s

Marks incorporate the term “and” within the marks — Plaintiff’s Marks use an ampersand

symbol, while the MACS N’ MELTS Marks use the letter “N’” with an apostrophe to connote

that the “N” is used as an informal version of the word “and.” As such, both “&” and “N’” sound

the same, have the same meaning, and are equivalent, underscoring that Plaintiff’s Marks and the



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MACS N’ MELTS marks are visually similar, phonetically similar, and they evoke similar or

identical connotations.

39. Upon information and belief, the Defendants are attempting to create a franchise

opportunity under the MACS N’ MELTS Marks by soliciting business in other states to open

restaurant locations under the MACS N’ MELTS Marks.

40. Upon information and belief, when searching for Plaintiff on popular Internet search

engines such as Google or Bing, a search of Plaintiff’s Marks provides results showing both the

MMC Website and Plaintiff’s Website, www.macnmelts.com.

41. On or about November 2015, Plaintiff became aware of Defendants’ use of the MACS N’

MELTS Marks in conjunction with its restaurant services.

42. On or about November 9, 2015, Plaintiff contacted MMC via letter and requested that

MMC immediately cease and desist from any usage of the MACS N’ MELTS Marks, cease any

activities that may indicate or be construed to indicate that MMC’s products or services are the

same as or associated with Plaintiff’s products or services, and that MMC take all necessary

commercially reasonable steps to destroy or dispose of any materials that use or include the

MACS N’ MELTS Marks which are in the control or oversite of MMC, including the MMC

Website. A copy of this letter is attached hereto as Exhibit C .

43. Plaintiff has followed up with MMC by email numerous times since November 9, 2015



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without any substantive response from MMC.

44. On information and belief, as of the date of this Complaint, the MACS N’ MELTS Marks

are still in use by Defendants.

45. MMC’s actions as alleged in connection with its use of the MACS N’ MELTS Marks on

restaurant services is intended to, and is likely to cause confusion, mistake or deception as to the

source of origin of Plaintiff’s restaurant services in that the public, the trade, and others are likely

to believe that MMC’s restaurant services are the same as Plaintiff’s restaurant services, or areauthorized, sponsored, or approved by Plaintiff, or are otherwise affiliated or connected with

Plaintiff and/or Plaintiff’s Marks.

46. MMC’s intentional use of the MACS N’ MELTS Marks with the statutory notice symbol

® noting a federal registration of a trademark, while MMC does not have any federal

registrations for the MACS N MELTS marks, amounts to misuse of the federal notice and a form

of false advertising under Lanham Act §43(a), demonstrates MMC’s intentional infringement

and passing off of the Plaintiff’s Marks, including Plaintiff’s ’669 Mark, and MMC’s “unclean

hands.”

COUNT I

TRADEMARK INFRINGEMENT UNDER LANHAM ACT 15 U.S.C. §1114

47. Plaintiff repeats and realleges all prior allegations.

48. Plaintiff is the exclusive owner of the distinctive Plaintiff’s Marks, including the MAC &

MELTS Mark and the ’669 Mark.



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49. Plaintiff’s Marks are inherently distinctive and have been in use in commerce with

restaurant services since at least as early as October 2012.

50. Plaintiff’s Marks are strong, well-known, and have garnered widespread publicity and

public recognition in New York and elsewhere.

51. Plaintiff’s Marks, including the ’669 Mark, are valid, subsisting, and uncancelled; and are

distinctive and strong due to extensive and exclusive use in commerce by Plaintiff with

Plaintiff’s restaurant services for many years prior to Defendants’ unauthorized use.

52. Based on Plaintiff’s use, publishing, advertising, marketing, and popularity of Plaintiff’s

Marks, the marks have acquired secondary meaning so that the public associates Plaintiff’s

Marks and the MAC & MELTS mark with Plaintiff’s goods and services.

53. Defendants’ unauthorized and willful use in commerce of the MACS N’ MELTS Marks,

including MACS N’ MELTS, with restaurant services that are competitive with and similar to or

identical with the restaurant services offered in commerce by Plaintiff using Plaintiff’s Marks is

likely to cause confusion, mistake or deception with Plaintiff’s Marks and constitutes trademark

infringement in violation of Section 32(1) of the Lanham Act, 15 U.S.C. §1114(1).

54. The MACS N’ MELTS Marks used by Defendants are substantially similar to Plaintiff’s

Marks in appearance, sound, and evoke similar or identical connotations.



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55. Defendants’ intentional misuse of the statutory notice ® of federal registration further

demonstrates that Defendants’ use of the MACS N’ MELTS Marks, which are confusingly

similar or identical to Plaintiff’s Marks, demonstrates that Defendants’ unauthorized and willful

use in commerce of the MACS N’ MELTS Marks is willful.

56. Defendants’ unauthorized and willful use in commerce of the MACS N’ MELTS Marks,

including MACS N’ MELTS, is similar to or identical in appearance to Plaintiff’s Marks as

described herein and is likely to cause confusion, mistake or deception with Plaintiff’s Marks

and constitutes trademark infringement in violation of Section 32(1) of the Lanham Act, 15

U.S.C. §1114(1).

57. Upon information and belief, Defendants’ use of MACS N’ MELTS Marks, including

MACS N’ MELTS, in connection with the services has been made notwithstanding Plaintiff’s

well-known and prior-established rights in Plaintiff’s Marks and with both actual and

constructive notice of federal registration rights of Plaintiff’s Marks under 15 U.S.C. §1072.

58. Upon information and belief, Defendants’ infringing activities have caused and, unless

enjoined by this Court, will continue to cause, irreparable harm and injury to Plaintiff, and to

Plaintiff’s reputation and goodwill in Plaintiff’s Marks. Even after providing actual notice that

Defendants’ use of the MACS N’ MELTS Marks infringe Plaintiff’s Marks, Defendants’

continue to use the MACS N’ MELTS Marks. Plaintiff has no adequate remedy at law.

59. Plaintiff is entitled to, among other relief, injunctive relief and an award of actual



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damages, Defendants’ profits, enhanced damages and profits, reasonable attorneys’ fees and

costs of the action under Sections 34 and 35 of the Lanham Act, 15 U.S.C. §§ 1116, 1117,

together with prejudgment and post-judgment interest.

COUNT II

FALSE DESIGNATION OF ORIGIN UNDER 15 U.S.C. §1125(A)


61. Plaintiff is the exclusive owner of the distinctive Plaintiff’s Marks, including the MAC &

MELTS Mark and the ’669 Mark.

62. Plaintiff’s Marks are distinctive and have been in use in commerce with restaurant

services since at least as early as October 2012.

63. Plaintiff’s Marks are strong, well-known, and have garnered widespread publicity and

public recognition in New York and elsewhere.

64. Based on Plaintiff’s use, publishing, advertising, marketing and popularity of Plaintiff’s

Marks, the marks have acquired secondary meaning so that the public associates Plaintiff’s

Marks and MACS & MELTS with Plaintiff’s goods and services.

65. Plaintiff’s Marks, including the ’669 Mark, are valid, subsisting, and uncancelled; and are

distinctive and strong due to extensive and exclusive use in commerce by Plaintiff with

Plaintiff’s restaurant services for many years prior to Defendants’ unauthorized use.



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66. Upon information and belief, Defendants’ actions as alleged in connection with the use of

the MACS N’ MELTS Marks with Defendants’ restaurant services are intended to cause

consumer confusion, and are likely to cause confusion, mistake or deception as to the source of

origin of Defendants’ restaurant services. Defendants’ use of the MACS N’ MELTS Marks as a

trademark is identical to or substantially similar to Plaintiff’s prior and current use of Plaintiff’s

Marks.

67. Due to the highly similar or identical nature of the MACS N’ MELTS Marks and Plaintiff’s Marks, along with the identical or highly similar nature of the restaurant services

offered under those marks, the trade and others are likely to believe that Defendants’ restaurant

services offered under the MACS N’ MELTS Marks are the same as Plaintiff’s restaurant

services, or are authorized, sponsored, or approved by Plaintiff, or are otherwise affiliated or

connected with Plaintiff and their valuable trademarks, including the Plaintiff’s Marks.

68. Defendants’ unauthorized and willful use in commerce of the MACS N’ MELTS Marks

with restaurant services that are competitive and similar to or identical with the restaurant

services that are offered in commerce by Plaintiff using Plaintiff’s Marks is likely to cause

confusion, mistake or deception with Plaintiff’s Marks and constitutes trademark infringement,

false designation of origin, false representation, and false description in violation of the Lanham

Act, Section 43(a), 15 U.S.C. §1125(a), all to the substantial and irreparable injury of the public

and of Plaintiff’s business reputation and goodwill.



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69. Upon information and belief, Defendants’ infringing activities have caused and, unless

enjoined by this Court, will continue to cause, irreparable harm and injury to Plaintiffs, and to

Plaintiff’s reputation and the goodwill in Plaintiffs’ Marks. Defendants continue to use the

MACS N’ MELTS Marks without the express authorization of Plaintiffs. Plaintiffs have no

adequate remedy at law.


damages, Defendants’ profits, enhanced damages and profits, reasonable attorneys’ fees andcosts of the action under Section 34 and Section 35 of the Lanham Act, 15 U.S.C. §§ 1116,

1117, together with prejudgment and post-judgment interest.


COUNT IIIUNFAIR BUSINESS PRACTICES UNDER N.Y. GEN. BUS. LAW §349


73. Defendants’ use of the MACS N’ MELTS Marks to promote, market, or sell products and

services, including on the MMC Website, constitutes a deceptive act or practice in the conduct of

Defendants’ business, trade, or commerce, and in the furnishing of services to consumers and

therefore a violation of N.Y. Gen. Bus. Law. §349 et seq .



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74. Defendants, through its content and conduct, are causing a likelihood of confusion as to

the source, sponsorship, affiliation, connection, association or approval of Defendants by or with

Plaintiff.

75. Plaintiff has been damaged by Defendants’ acts complained of in an amount to be

determined at trial, and if Defendants’ conduct is allowed to continue, Plaintiff and his goodwill

and reputation will continue to suffer immediate, substantial and irreparable injury that cannot be

adequately calculated and compensated in monetary damages.

76. Defendants’ materially misleading practice of using the MACS N’ MELTS Marks to

identify goods and services provided by Defendants is likely to cause the consuming public at

large to be misled as to the true source, sponsorship, or affiliation of the goods and services

offered by Defendants and is likely to cause confusion or mistake or to deceive.

77. Plaintiff is entitled to monetary damages in an amount to be proven at trial and injunctive

relief prohibiting Defendants from using the MACS N’ MELTS Marks or any other trade name,

trademark, service mark or domain name that is likely to be confused with Plaintiff’s Marks or

otherwise unfairly competing with Plaintiff. Without preliminary and permanent injunctive

relief, Plaintiff has no means by which to control the continuing injury to the reputation and

goodwill associated with Plaintiff’s Marks. No amount of money damages can adequately

compensate Plaintiff if it suffers damage to its reputation and associated goodwill through the

false and unauthorized use by Defendants of its marks containing substantially all of Plaintiff’s

Marks.



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COUNT IV

TRADEMARK INFRINGEMENT UNDER N.Y. GEN. BUS. LAW §360, et seq.


79. Defendants’ use of the MACS N’ MELTS Marks as described herein constitutes

trademark infringement under New York common and/or statutory law N.Y. Gen. Bus. Law.

§§360-k and 360-o.

80. Upon information and belief, Defendants’ acts were done with knowledge of their

violations of law and/or done in bad faith or done under circumstances where treble damages and

attorneys’ fees should be awarded to Plaintiff.


damages, Defendants’ profits, enhanced damages and profits, treble damages, reasonable

attorneys’ fees, and any other remedy provide under N.Y. Gen. Bus. Law §360-m and costs of

the action together with prejudgment and post-judgment interest.


COUNT V

INJURY TO BUSINESS REPUTATION AND UNFAIR COMPETITION UNDER N.Y.GEN. BUS. §360-L


84. By making unauthorized use in commerce of substantially all of Plaintiff’s Marks on

similar or identical goods and services, Defendants’ unauthorized use of the MACS N’ MELTS

Marks to identify Defendants’ services is likely to cause confusion, mistake, or deception as to

the affiliation or connection of Defendants with Plaintiff and as to the sponsorship or approval of

Defendants’ goods or services by Plaintiff.



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85. Defendants’ distributing, marketing, advertising, offering for sale and selling of its goods

and services under the MACS N’ MELTS Marks trademark causes confusion and mistake,

deceives and misleads the purchasing public, trades upon Plaintiff’s high quality reputation, and

improperly appropriates to Defendants the valuable goodwill of Plaintiff.

86. The aforesaid conduct by Defendants constitutes a likelihood of injury to the business

reputation of Plaintiff in violation of N.Y. Gen. Bus. Law. §360-l.

87. Plaintiff has been damaged by Defendants’ acts complained of in an amount to be

determined at trial, and if Defendants’ conduct is allowed to continue and is not enjoined,

Plaintiff and his goodwill and reputation will continue to suffer immediate, substantial, ongoing

and irreparable injury that cannot be adequately calculated and compensated in monetary

damages.


COUNT VI

COMMON LAW TRADEMARK INFRINGMENT AND UNFAIR COMPETITION


90. In addition to the federal registrations owned by Plaintiff for Plaintiff’s Marks, Plaintiff

owns and uses Plaintiff’s Marks and enjoys common law rights in the State of New York and

throughout the United States. Defendants’ activities as stated herein constitute unfair competition

and trademark infringement of Plaintiff’s common law trademark rights in Plaintiff’s Marks

within the State of New York and in violation of New York law.

91. Defendants’ conduct alleged herein is causing immediate and irreparable harm and injury

to Plaintiff, and to its goodwill and reputation, and will continue to both damage Plaintiff and

confuse the public unless enjoined by this Court. Plaintiff has no adequate remedy at law.



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damages, Defendants’ profits, enhanced damages and profits, if applicable, reasonable attorney’s

fees, if applicable, and costs of the action together with prejudgment and post-judgment interest.

DEMAND FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court:

1. Order a permanent and preliminary injunction enjoining Defendants, their agents,

employees, representatives, attorneys, successors, assigns and contractors, and all persons,

firms or entities acting under their direction, authority and/or control, and all persons

acting directly or indirectly in concert or participation with any of them from:

a. Using, in commerce, the trademark MAC & MELTS, MACS N’ MELTS, or any

other designation confusingly or deceptively similar thereto, in connection with the

distribution, display, sale, promotion, copying, license, or other use of any goods or

services;

b. Engaging in unfair competition with regard to Plaintiff’s Marks and Plaintiff’s MAC

& MELTS trademark.

2. Order an award in an amount to be determined at trial of any actual damages and all profits

and damages to Plaintiff pursuant to Defendants’ infringement of Plaintiff’s Marks and

Plaintiff’s MAC & MELTS trademarks.

3. Order an award of attorney’s fees and costs as provided by Section 35 of the Lanham Act,

15 U.S.C. §1117.



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4.Order an aw rd of treble dam11 7 and N Y Gen Bus

5Order an awa d of atto ey's5 U S C §1117 and N Y6Grant such other or rther re

DEMAND FOR JRY TRIALPla nt , requests a tr al by the Federa Ru es of Civi P

Dated: New York NYarch 17, 20 6

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Respect l y W R S M

By: �Wi iam R280 ad sonNew York NTe ephone: 2Facs mi e: 9bi l@wrsamuAttorney for PlaintCheddar Bob's, Inc.


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Cheddar Bob's v. Macsnmelts - trademark complaint EDNY.pdf