Wild Ginger Complaint (via Court)

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faithless servant doctrine, misappropriation of trade secrets and confidential and proprietary

information, tortious interference with prospective business relations and for an injunction

arising out of Defendants conspiracy, misappropriation and infringement of Plaintiffs trade

dress (including its menu and dcor for its popular restaurants), trade secret recipes, copyright-

protected menu and other proprietary information, all of which Defendants are using to deceive

the public into believing Defendants restaurant is affiliated with or connected to Plaintiffs

popular, pan-Asian vegan restaurants. Indeed, the individual defendants, who are former

employees of Plaintiffs, unlawfully conspired while employed at Plaintiffs restaurants to steal

Plaintiffs trade secret recipes, and other confidential and propriety information, and to copy

Plaintiffs distinctive dcor and plating style for its food, as well as duplicate Plaintiffs

copyrighted menu, all in order to unfairly compete with Plaintiffs by opening a knock-off

restaurant that Defendants are misleading the public into believing that is connected to or

affiliated with Plaintiffs popular restaurants. In light of Defendants willful and unlawful

conduct, Defendants copycat restaurant should be immediately shut down, and all of

Defendants ill-obtained profits should be disgorged and awarded to Plaintiffs.

JURISDICTION AND VENUE

2. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331 and 1338 because Plaintiffs claims arise under the trade dress laws of the United

States, 15 U.S.C. 1051 et seq., and under the Copyright Act of 1976, as amended, 17 U.S.C.

101, et seq. This Court also has supplemental jurisdiction pursuant to 28 U.S.C. 1338(b)

and 1367 over Plaintiffs claims that arise under the laws of the State of New York. This Court

has personal jurisdiction over the parties to this action because (i) Plaintiffs claims arise in this

judicial district, and (ii) Plaintiffs and Defendants do business in this judicial district.

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3. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) and (c),

and 28 U.S.C. 1400(a) because Plaintiffs claims arise in this judicial district, each party

conducts substantial business in this judicial district, witnesses and evidence are located within

this judicial district, and the acts complained of herein have taken place in this judicial district.

THE PARTIES

4. Plaintiff Wild Ginger Vegetarian Kitchen NY Inc. is a corporation organized

under the laws of the State of New York with its principal place of business located at 380

Broome Street, New York, New York, 10013.

5. Plaintiff Wildginger Pan-Asian Vegan Restaurant, Inc. is a corporation

organized under the laws of the State of New York with its principal executive office located at

530 D Grand Street, Apt. 5C, New York, New York, 10002 and its principal place of business

located at 112 Smith Street, Brooklyn, New York, 11201.

6. Wild Ginger Vegetarian Kitchen NY Inc. and Wildginger Pan-Asian Vegan

Restaurant, Inc. are related entities with the same ownership and are collectively referred to

herein as Plaintiffs.

7. Plaintiffs are the owners and operators of the long-established and popular

LuAnnes Wild Ginger restaurants a/k/a Wild Ginger Pan-Asian Vegan Caf and LuAnnes Wild

Ginger All-Asian Vegan offering pan-Asian vegan food and beverage items at Plaintiffs two

locations at 380 Broome Street, New York, New York (the Manhattan Location) and 112

Smith St, Brooklyn, New York (the Brooklyn Location) (both restaurants are collectively

referred to herein as Wild Ginger).

8. Defendant Jujube Tree, Inc. (Jujube Tree, Inc.) is a corporation organized

under the laws of the State of New York with its principal place of business located at 35-02

30th Avenue, Astoria, New York, 11103. Upon Information and belief, Jujube Tree, Inc. is the

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owner and operator of the pan-Asian vegan restaurant Jujube Tree (Jujube) in Astoria,

Queens.

9. Upon information and belief defendant Zhong Gui Ren (Ren) is an individual

residing in the City and State of New York, whose exact address is unknown to Plaintiffs at this

time. Until recently, Ren was employed by Plaintiffs at Wild Ginger where he served as the

Acting Manager and Kitchen Supervisor for over six years. Rens duties at Wild Ginger

included running the kitchen and supervising all orders, inventories, stocking, billing and

dealing with Wild Gingers vendors and suppliers. Upon information and belief, Ren is the

individual who orchestrated the conspiracy to unfairly compete with Plaintiffs by opening

Jujube.

10. Upon information and belief defendant Wu Qu Song (Song) is an individual

residing in the City and State of New York, whose exact address is unknown to Plaintiffs at this

time. Song was formerly employed by Plaintiffs until September of 2014 as a Main Chef at

the Wild Ginger Brooklyn Location.

11. Upon information and belief defendant Zhou (Zhou) is an individual residing

in the City and State of New York, whose exact address and full name are unknown to

Plaintiffs at this time. Zhou was formerly employed by Plaintiffs as the Salad Chef at Wild

Ginger until in or about October 2014. Until recently, Zhous wife, Jiang Pan Deng, was also

employed by Plaintiffs at the Brooklyn Location where she worked as a packer of takeout

dishes. Upon information and belief, defendant Ren lived with defendant Zhou while

employed by Plaintiffs and during which period they were conspiring to unfairly compete with

Plaintiffs.

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12. Defendants Ren, Song and Zhou are collectively referred to herein as the

Individual Defendants, and collectively, with defendant Jujube Tree Inc. are referred to as

Defendants.

13. The Individual Defendants are key former employees of Plaintiffs who, upon

information and belief, conspired with one another, and with other unidentified individuals

named as John and Jane Does herein, to unfairly compete with Plaintiffs by replicating

Plaintiffs Wild Ginger restaurant, including Wild Gingers distinctive dcor, menu, plating and

presentations, as well as proprietary recipes at Defendants competing restaurant Jujube.

FACTUAL ALLEGATIONS

A. PLAINTIFFS TRADE SECRETS AND CONFIDENTIAL AND PROPRIETARY RECIPES

14. Plaintiffs own and operate the very popular, long established, Wild Ginger

restaurants at the Manhattan Location which Plaintiffs opened in 2005 and at the Brooklyn

Location which Plaintiffs opened in 2008.

15. Wild Ginger offers pan-Asian vegan food and beverage items, many of which

are proprietary recipes that were created and designed by one of Plaintiffs owners Xiang Ting

Fang (Tim). Tim also created and developed approximately two dozen secret sauces that are

used in the dishes at Wild Ginger. In order to keep the sauce recipes a secret, Tim goes to Wild

Ginger every day where he personally prepares the sauces and he has not shared the recipes

therefor with anyone.

B. PLAINTIFFS TRADE DRESS IN ITS MENU AND INTERIOR DCOR 16. Plaintiffs Wild Ginger offers dine-in, takeout and delivery services. For this

purpose, Plaintiffs have designed a distinctive take-out menu which features select and unique

appetizers, entrees, noodle dishes, rice dishes, salads, side dishes, iced-drinks, herbal teas,

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desserts and lunch specials (the Wild Ginger Menu), which menu items contain distinctive

names and descriptions. Copies of the Wild Ginger Menu for the Manhattan Location and

Brooklyn Location are attached hereto as Exhibit A. Other than the contact information for the

restaurant, the two Wild Ginger Menus are identical.

17. The Wild Ginger Menu includes a two-inch wide front flap with the restaurants

name and phrase All-Asian Vegan on front left, and the International Kosher Counsel logo

and Wild Gingers telephone number on the front right of the flap. On the reverse side of the

flap are color photographs of five menu items offered at Wild Ginger. See Exhibit A.

18. In developing and designing the Wild Ginger Menu, the photographs of Wild

Gingers menu items and the descriptions were carefully selected and uniquely crafted by

Plaintiffs. Indeed, the photographs on the menu flap are of actual dishes that were prepared and

photographed by Plaintiffs at Wild Ginger. See Exhibit A.

19. In addition to its distinctive Wild Ginger Menu, Plaintiffs have developed a

unique presentation and plating style for the food items that are offered for dine-in and takeout

services (the Plating).

20. Plaintiffs have also developed a distinctive dining room atmosphere for its dine-

in customers at Wild Ginger (the Dcor). This includes a dining room featuring lime green

painted walls, red brick walls, and tongue and groove dark wood paneling.

21. Plaintiffs have expended substantial time, money, effort and other resources

advertising, promoting, and marketing its goods and services and developing its distinctive

Wild Ginger Menu, Plating, Decor (collectively the Wild Ginger Trade Dress) and dine-in

experience for its customers.

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22. Through Plaintiffs substantial efforts, the Wild Ginger Menu, Plating, interior

Dcor, and the dine-in and takeout presentation have acquired substantial consumer recognition

such that they function as source identifying Wild Ginger Trade Dress and undoubtedly

distinguish Wild Ginger from other restaurants offering similar goods and services.

23. In addition, Wild Ginger has obtained a great reputation and has been praised by

the consuming public as well as in publications such as New York Magazine for its Wild Ginger

Menu and its dining room ambiance.

C. PLAINTIFFS COPYRIGHT

24. In addition, to its protectable Wild Ginger Trade Dress, Plaintiff Wild Ginger

Vegetarian Kitchen NY Inc. owns copyright rights in and to the original Wild Ginger Menu it

created for its restaurants.

25. The copyrighted work at issue is registered with the U.S. Copyright Office under

Copyright Registration Number TX 8-008-952, dated April 15, 2015. A copy of the copyright

registration is attached hereto as Exhibit B.

D. DEFENDANTS CONSPIRACY AND INFRINGEMENT

26. Upon information and belief, in the early fall of 2014, the Individual

Defendants, who at the time were all employees of Plaintiffs at Wild Ginger, engaged in an

unlawful conspiracy to unfairly compete with Plaintiffs and misappropriate the goodwill of

Wild Ginger by opening a competing restaurant, Jujube, and replicating Wild Gingers Trade

Dress, and trade secret and proprietary recipes at Defendants copycat restaurant.

27. Upon information and belief, Defendant Jujube Tree Inc., which owns the

Jujube restaurant, was incorporated on or about October 27, 2014, and all of the Individual

Defendants ceased their employment with Plaintiffs shortly before or shortly after that date,

other than Ren who just recently separated from Plaintiffs.

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28. Upon information and belief, Defendant Jujube Tree Inc. and the Individual

Defendants own and/or are operating the restaurant Jujube which is blatantly infringing on

Wild Gingers Wild Ginger Trade Dress, copyrights and have misappropriated Plaintiffs trade

secrets and proprietary information.

29. Indeed, the Individual Defendants are utilizing Plaintiffs Wild Ginger Trade

Dress, copyright protected menu as well as trade secrets and proprietary and confidential

information that the Individual Defendants gained access to during their employment by

Plaintiffs at Wild Ginger.

30. Defendants have pirated the Wild Ginger Menu, duplicated all aspects of Wild

Gingers Plating and presentation of its food items, replicated the distinctive Wild Ginger

Dcor, misappropriated Wild Gingers proprietary recipes including its trade secret sauces, and

made efforts to recruit Wild Gingers staff and suppliers, all for the unlawful purpose of

profiting off of Wild Gingers popularity and goodwill.

31. Specifically, Defendants have copied substantial and key portions of Plaintiffs

Wild Ginger Menu for the Jujube menu. Indeed, Defendants are using and distributing to the

public a takeout and dine-in menu that is so shockingly indistinguishable from Plaintiffs Wild

Ginger Menu that there is no question that Defendants deliberately copied the Wild Ginger

Menu word for word, and even replicated the photographs of Wild Gingers food items

contained on the Wild Ginger Menu. Attached hereto as Exhibits A and C, respectively, are

copies of Plaintiffs Wild Ginger Menu and Defendants Jujube menu.

32. Defendants menu folds exactly the same way as Plaintiffs Wild Ginger Menu,

including having a two-inch wide front flap that includes Defendants restaurants name and

the phrase Asian Vegan Cuisine under the name on the front left, the identically positioned

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International Kosher Counsel emblem on the front right of the flap, and color photographs of

five menu items on the reverse side of the flap:

Plaintiffs Wild Ginger Menu (Front of Flap)

Defendants Jujube Menu (Front of Flap)

See Exhibits A and C.

33. Also, at least two of the five photographs on the flap of Defendants menu are

photographs of food items that were prepared by Plaintiffs at Wild Ginger and those exact same

two photographs appear on Plaintiffs menu.

Plaintiffs Wild Ginger Menu (Back of Flap)

Defendants Jujube Menu (Back of Flap)

See Exhibits A and C.

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34. Moreover, numerous original and unique elements in Plaintiffs Wild Ginger

Menu, including the names and descriptions of the menu items; names of section headings; and

the overall formatting, spacing and layout have been identically replicated in Defendants

takeout and dine-in menu.

35. By way of example, although the order of the items slightly differ, Defendants

Jujube menu includes the same exact number of Starters as the Wild Ginger Menu and even

goes so far as to have the same exact names and descriptions of the menu items, and even use

the same italic font for the description:

Wild Ginger Menu Starters

Defendants Jujube Menu Starters

A1. Spring Rolls A1. Spring Rolls A2. Summer Rolls Vietnamese style raw rolls w/ shredded vegetables, bean curd & basil leaves; w/ moo-shu sauce

A2. Summer Rolls Vietnamese style raw rolls w/ shredded vegetables, bean curd & basil leaves, w/ moo-shu sauce

A3. Yam & Taro Tempura Deep-fried root vegetables w/ tempura sauce

A9. Yam & Taro Tempura deep-fried root vegetables w/ tempura sauce

A4. Steamed Spinach Shumai Open-wrapped, minced vegetable

A5. Steamed Spinach Shumai open wrapped, minced vegetable

A5. Agedashi-Tofu Japanese-style deep-fried bean curd w/ tempura sauce

A10. Age-Tofu Japanese-style deep-fried bean curd w/ tempura sauce

A6. Stuffed Wontons Deep-fried wontons w/ soy cheese, watercress, & spinach

A15. Stuffed Wontons Deep-fried wontons w/ soy cheese & spinach

A7. Crispy Soy Protein Breaded, deep-fried soy protein nuggets w/ plum sauce

A17. Crispy Soy Protein Breaded, deep-fried soy protein nuggets w/ plum sauce

A8. Grilled Eggplant w/ miso sauce A13. Grilled Eggplant w/ miso sauce A9. Tofu Skin Wraps Shredded vegetables & tofu rolled in tofu skin and deep fried; w/ tangy sauce

A18. Tofu Skin Wraps Shredded vegetables & tofu rolled in tofu skin and deep fried; w/ tangy sauce

A10. Pan-fried Vegetable Dumplings A11. Pan-Fried Vegetable Dumpling A11. Seitan Skewers Tender seitan, onions & bell peppers, grilled in satay sauce

A14. Seitan Skewers Tender seitan, onions & bell peppers, grilled in satay sauce

A12. Scallion Pancakes w/ homemade mango salsa

A8. Scallion Pancakes w/ homemade mango salsa

A13. Oshitashi Cold, boiled spinach rolls soy-citrus sauce.

A3. Oshitashi Cold, boiled spinach rolls soy-citrus sauce.

A14. King-Oyster Mushrooms Batter A19. King-Oyster Mushrooms Batter

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dipped king-oyster mushrooms, spicy sauteed w/ salt pepper, scallions & diced bell-peppers

dipped king-oyster mushrooms, spicy sauteed w/ salt pepper, scallions & diced bell-peppers

A15. Steamed Vegetable Dumplings A6. Steamed Vegetable Dumplings A16. Curry Samosas Home-made vegetable pastries w/ mint chutney dip

A16. Curry Samosas Home-made vegetables pastries w/ mint chutney dip

A17. Satay Tempeh Indonesian soy cake, grilled in satay sauce

A12. BBQ Satay Tempeh Indonesian soy cake, grilled in satay sauce

A18. Cooled Silken Tofu Mushroom sauce, dry seaweed & sesame garnish

A4. Cooled Silken Tofu Mushroom sauce, beets, alfalfa & sesame garnish

N7. Edamame Soy beans in the pod A7. Edamame Soy beans in the pod

See Exhibit A and Exhibit C. Note that the order of the items on Defendants menu has been

reorganized in the above chart to demonstrate Defendants blatant replication of Plaintiffs

Wild Ginger Menu.

36. The very fact that both Plaintiffs Wild Ginger Menu and Defendants menu

contain a period at the end of the description of Oshitashi when no other item descriptions on

either menu contain a period, is evidence that Defendants copied and pasted the item names

and descriptions from the Wild Ginger Menu, as this could not possibly be a mere coincidence.

Similarly, there is an unnecessary semicolon in the descriptions for Tofu Skin Wraps on both

Plaintiffs menu and Defendants menu. See Exhibit A and Exhibit C.

37. Just as Defendants copied the Starters section of Plaintiffs Wild Ginger

Menu, Defendants menu contains the same replication of Plaintiffs Soup & Salads,

Mains, Noodles, Rice & Rice Bowls, Lunch Specials, Side, Dessert, Homemade

Iced-drinks, Organic Hot Teas & Coffee, Juice, and Water & Soda sections, again

copying all the section titles, food item names descriptions, and even coping alpha-numeric

item numbers. Indeed, the Juice section was replicated verbatim, even down to the price

charged for each item. Also, Wild Gingers unique homemade iced drinks, including the

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Virgin Mojito, Passion Fruit Lemonade and Thai Iced-Coffee all appear on Defendants

menu. See Exhibits A and C.

38. Defendants descriptions of the menu items contents as described on

Defendants menu, also demonstrates that Defendants are using Plaintiffs trade secrets and

confidential and proprietary Wild Ginger recipes at Jujube. Moreover, many of the dishes that

Defendants have replicated and are serving at Jujube include Plaintiffs trade secret sauces that

Plaintiffs have gone to great efforts to keep confidential.

39. Upon information and belief, the Individual Defendants surreptitiously gained

access to Plaintiffs trade secret recipes for its sauces while employed by Plaintiffs and have

misappropriated the trade secret by using them at Jujube.

40. In addition to intentionally replicating the Wild Ginger Menu in its entirety,

Defendants are also blatantly plating and presenting the food served at Jujube in an identical

manner to the Wild Ginger Plating, even down to the detail of Defendants use of identical

dishware to that used by Plaintiffs at Wild Ginger. Photographs posted by customers of Wild

Ginger and Jujube to the website Yelp.com demonstrate that the food items are being plated in

an identical manner:

Plaintiffs Wild Ginger Plating Defendants Jujube Plating Avocado Salad

Avocado Salad

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Tofu Skin Wraps

Tofu Skin Wraps

Peanut Butter bomb

Peanut Butter bomb

Ice cream

Ice cream

Printouts of customer reviews of Wild Ginger on Yelp.com and customer reviews of Jujube on

Yelp.com are attached hereto as Exhibits D and E, respectively.

41. Furthermore, Defendants are providing their food services at Jujube in a

virtually identical setting to that of Wild Ginger in that the interior dcor of Jujubes dining

room mimics the look and feel of the distinctive Wild Ginger Dcor. For example, not only are

the interior walls of Jujubes dining room painted in the same lime green color and include the

same red brick walls as Wild Gingers dining room walls, but Jujubes interior even features

the same tongue and groove dark wood paneling that is found in the interior of Wild Ginger.

E. ACTUAL CUSTOMER CONFUSION

42. Defendants use of an identical menu, identical presentation and plating style,

and replication of distinctive elements of Plaintiffs Wild Ginger Dcor is in direct violation of

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Wild Gingers valuable Trade Dress and copyright rights, as it is already creating consumer

confusion (and will continue to do so) as to the source of Jujubes goods and services.

43. For example, Plaintiffs have already received inquiries from customers and

potential customers who believed that Defendants Jujube is affiliated with Plaintiffs Wild

Ginger.

44. Additionally, consumers have posted comments to Yelp.com, among other

websites, which demonstrate their confusion. For example, one consumer reviewing Jujube on

Yelp.com stated I was ridiculously excited to see that Jujube Tree, of LuAnn's Wild Ginger

fame, opened in Astoria. Another commentator reviewing Jujube stated if youve ever gone

to Wild Ginger in Brooklyn, you'll know what to expect from Jujube Tree, and I suspect the

two restaurants might have the same owner, as many of the menu items, as well as choice of

dishware and tea cups, were near identical. A commenter on the website weheartastoria.com

stated about Jujube that the menu and pictures look extremely similar to Wild Ginger in

Williamsburg. It has to be the same owner right? Examples of such consumer confusion from

various internet sources are attached as Exhibit F.

45. Thus, consumers already are, and will continue to invariably believe that

Defendants restaurant Jujube is authorized, affiliated, connected or sponsored by or with

Plaintiffs Wild Ginger.

46. Defendants aforementioned activities amount to blatant and willful unfair

competition, trade dress infringement and copyright infringement and violation of other state

and common laws.

F. BREACHES OF FIDUCIARY DUTIES

47. Defendant Ren as Acting Manager and Kitchen Supervisor at Wild Ginger,

defendant Song as a Main Chef at Wild Ginger, and defendant Zhou as the Salad Chef at Wild

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Ginger, were all in management positions at Wild Ginger that are comparable to a senior level

executive at a corporation.

48. The Individual Defendants had access to Plaintiffs confidential and proprietary

information regarding recipes, operations, books and records, budgets, staff, compensation,

vendors, suppliers and clients. Thus, the Individual Defendants were in positions of trust and

confidence that makes them fiduciaries to Plaintiffs.

49. The Individual Defendants breached their fiduciary duties to Plaintiffs by

misappropriating and using at Jujube Plaintiffs trade secrets and confidential and proprietary

information they gained access to while employed at Wild Ginger in management positions.

50. The Individual Defendants also breached their fiduciary duties to Plaintiffs by

infringing on Plaintiffs Wild Ginger Trade Dress and copyright protected menu.

G. PLAINTIFFS NOTICE TO DEFENDANTS

51. Immediately after discovering Defendants infringing conduct and

misappropriation of Plaintiffs trade secrets and proprietary and confidential information,

Plaintiffs counsel wrote to Defendants by letter dated March 24, 2015 and demanded

Defendants cease and desist their conduct. A copy of the Match 24, 2015 letter is attached

hereto as Exhibit G.

52. By letter dated April 3, 2015, Defendants counsel responded by admitting that

the menus at Defendants and Plaintiffs restaurants are substantially similar visually and that

he has advised [Defendants] to re-design by its entirety said menu . . . . A copy of the April

3, 3015 letter is attached hereto as Exhibit H.

53. Plaintiffs counsel responded thereto by letter dated April 9, 2015 stating that a

menu change alone would not be sufficient because Plaintiffs just discovered that the

individuals operating Jujube, the Individual Defendants herein, were current and former key

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employees of Plaintiffs at Wild Ginger who, while employed by Plaintiffs, conspired to

unlawfully compete with Wild Ginger and misappropriate Wild Gingers goodwill, by opening

up a knock-off restaurant. A copy of the April 9, 2015 letter is attached hereto as Exhibit I.

54. In the April 9 letter, Plaintiffs counsel also listed Plaintiffs proprietary dishes

and recipes that were created by Plaintiffs for Wild Ginger, but were being replicated and

served by Defendants at Jujube, and demanded they be removed from Jujubes menu. See

Exhibit I at pp. 2-3. In addition, Plaintiffs counsel demanded that all of Plaintiffs proprietary,

trade secret sauces used in the dishes listed in the letter must be discontinued.

55. Defendants have failed to comply with the Plaintiffs demands and are

continuing to infringe on Plaintiffs rights and misappropriate Plaintiffs trade secrets and

proprietary information.

COUNT I

FALSE DESIGNATION OF ORIGIN, UNFAIR COMPETITION AND TRADE DRESS INFRINGEMENT

UNDER THE LANHAM ACT

56. Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.

57. Defendants providing restaurant services using a menu, plating, and dcor that is

identical to Plaintiffs protectable distinctive and nonfunctional Wild Ginger Trade Dress

(Menu, Plating and Dcor) and copyright protected menu, as described above, is likely to

cause, and has already caused confusion or mistake and/or to deceive in violation of Section

43(a) of the Lanham Act (15 U.S.C. 1125(a)).

58. Defendants have misappropriated a valuable property right and the goodwill of

Plaintiffs and have attempted to falsely create confusion and the impression in the mind of

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consumers that Jujube is associated with, affiliated with or sponsored or endorsed by Plaintiffs

and/or Wild Ginger, which it is not.

59. Defendants activities misrepresent the nature, characteristics, or qualities of

Defendants restaurant services and food products.

60. Defendants activities, as alleged herein, constitute unfair competition, false

designation of origin, trade dress infringement, and false description and representation in

violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).

61. Defendants have committed such acts of false designation of origin and false

description and representation deliberately, willfully and with full knowledge of Plaintiffs

prior use of, and rights in, its Wild Ginger Trade Dress and copyrighted Menu.

62. As a result of Defendants acts of unfair competition, Plaintiffs have suffered

and will continue to suffer serious and irreparable harm for which there is no adequate remedy

at law.

COUNT II

COPYRIGHT INFRINGEMENT, 17 U.S.C. 106, 501



64. By reason of Defendants acts of copyright infringement described above and

the continuation of such acts, Plaintiffs have sustained and will continue to sustain substantial

injury, loss and damage to its ownership rights in the copyrighted Wild Ginger Menu. 65. Plaintiffs are entitled to a permanent injunction that restrains Defendants, their

officers, directors, agents, employees, representatives and all persons acting in concert with

them from engaging in further such acts of copyright infringement, including without

18 5216287.5

limitation, from distributing, promoting or otherwise using a menu which infringes on the Wild

Ginger Menu.

66. Plaintiffs are entitled to recover from Defendants actual damages resulting from

Defendants acts of copyright infringement. Plaintiffs are currently unable to determine the full

extent of the monetary damages they have suffered by reason of Defendants acts of copyright

infringement.

67. Plaintiffs are entitled to recover Defendants gains, profits and advantages

obtained as a result of their acts of copyright infringement. Presently, Plaintiffs are unable to

determine the full extent of those gains, profits and advantages.

68. Unless enjoined by this Court, Defendants wrongful acts will continue and

Plaintiffs will continue to suffer irreparable harm for which they have no adequate remedy at

law.

COUNT III

COMMON LAW TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION



70. Plaintiffs own all rights, title, and interest in its Wild Ginger Trade Dress and

copyrighted Menu, as described above, including all common law rights therein.

71. Defendants aforesaid acts constitute infringement of Plaintiffs rights in its

Wild Ginger Trade Dress and copyrighted Menu and tend to falsely describe or represent that

Defendants restaurant services and food products at Jujube are provided by, or sponsored by,

or approved by, or licensed by, or affiliated with or in some other way legitimately connected

to Plaintiffs and/or Wild Ginger and are of the same character, nature and quality as the

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restaurant services and food products provided by Plaintiffs, thereby damaging Plaintiffs and

Plaintiffs reputation.

72. Defendants consumer-oriented conduct was directed at the public, materially

misleading to the public, has affected the public interest of New York and has resulted in injury

to consumers in New York.

73. Defendants acts complained of hereinabove constitute acts of trade dress

infringement and unfair competition against Plaintiffs under the common law of the State of

New York, which acts have been committed knowingly and willfully and have injured

Plaintiffs in its trade and business.

74. By reason of the aforesaid acts, Defendants have caused damage to Plaintiffs

and to the goodwill associated with Plaintiffs Wild Ginger Trade Dress and copyrighted Menu,

as well as injury to the public.



law.

COUNT IV

CIVIL CONSPIRACY



77. While employed by Plaintiffs, and with the intent of unfairly competing with

Plaintiffs, Defendants and their John Doe co-conspirators conspired and agreed to infringe on

Plaintiffs Wild Ginger Trade Dress and copyrighted Menu, misappropriate Plaintiffs trade

secrets and confidential and proprietary information, and to engage in other improper conduct

to Plaintiffs detriment.

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78. Defendants and their co-conspirators agreed to participate in this conspiracy and

took steps in furtherance of the conspiracy as described herein, including creating and

distributing a menu for Jujube Tree which is nearly identical to the copyrighted Wild Ginger

Menu, infringing on Plaintiffs Wild Ginger Plating and Dcor, and serving food items at

Jujube that were created using Plaintiffs trade secret and proprietary recipes.

79. Defendants and their co-conspirators conduct was malicious, willful and

wanton.

80. As a direct and proximate result of Defendants and their co-conspirators

participation in the conspiracy, Plaintiffs have suffered injury to its businesses.

COUNT V

DECEPTIVE ACTS AND PRACTICES IN VIOLATION OF SECTION 349 OF NEW YORK GENERAL BUSINESS LAW



82. Plaintiffs are the exclusive owner of its trade dress and copyright protected

menu.

83. Defendants use of a menu, plating and dcor that is identical to that of Plaintiffs

is deceptive and materially misleading to the public in that such use tends to falsely describe or

represent that Defendants restaurant services and food products at Jujube are provided by, or

sponsored by, or approved by, or licensed by, or affiliated with or in some other way

legitimately connected to Plaintiffs and/or Wild Ginger and are of the same character, nature

and quality as the restaurant services and food products provided by Plaintiffs, thereby

damaging Plaintiffs and Plaintiffs reputation.

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84. Defendants consumer-oriented conduct was directed at the public, materially

misleading to the public, has affected the public interest of New York and has resulted in injury

to consumers in New York.

85. Defendants acts complained of hereinabove constitute acts of unfair

competition against Plaintiffs under the common law of the State of New York, which acts

have been committed knowingly and willfully and have injured Plaintiffs in its trade and

business.

86. By reason of the aforesaid acts, Defendants have caused damage to Plaintiffs

and to the goodwill associated with Plaintiffs trade dress and menu, as well as injury to the

public.



law.

COUNT VI

DILUTION IN VIOLATION OF SECTION 360-L OF NEW YORK GENERAL BUSINESS LAW



89. Defendants have already caused confusion about the business association

between Plaintiffs and Defendants and their restaurants.

90. This confusion has led customers and potential customers, as well as vendors

and suppliers to believe that Defendants and/or Jujube have a business relationship with

Plaintiffs.

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91. Due to that erroneous belief, Plaintiffs have suffered and will continue to suffer

injury to their business and their business reputation.

92. Defendants actions, as stated above, have caused a likelihood of injury to

Plaintiffs business reputation in violation of New York General Business Law 360-l.

93. By advertising their infringing menu, plating and decor and selling its restaurant

services and food products, Defendants also have caused dilution of the distinctive quality of

Plaintiffs Wild Ginger Trade Dress in violation of New York General Business Law 360-1.



law.

COUNT VII

USE OF TRADE DRESS WITH INTENT TO DECEIVE IN VIOLATION OF SECTION 133 OF NEW YORK GENERAL

BUSINESS LAW



96. Defendants are misleading the public into believing that a connection exists

between the Defendants and Plaintiffs and their restaurants by assuming, adopting and using

Plaintiffs Wild Ginger Trade Dress and copyrighted Menu with intent to deceive or mislead

the public, for advertising purposes and for the purposes of trade in violation of New York

General Business Law 133.

97. By reason of the foregoing, Plaintiffs have been injured and has suffered

damages in an amount not yet ascertained and is entitled to the remedies provided for in New

York General Business Law 133.

23 5216287.5



law.

COUNT VIII

UNJUST ENRICHMENT



100. Upon information and belief Defendants have been and will continue to be

unjustly enriched as a result of their unauthorized use of Plaintiffs Wild Ginger Trade Dress

and copyrighted Menu, thereby depriving Plaintiffs of revenues they rightfully should receive

by virtue of the use of their trade dress and menu.

101. By the acts described herein, Defendants have retained revenues to which they

are not equitably or legally entitled and are thereby unjustly enriched at Plaintiffs expense, in

violation of the common law of the State of New York.

102. Upon information and belief, Defendants conduct is malicious, intentional, and

willful.

103. As a direct and proximate result of Defendants wrongful acts, Plaintiffs have

suffered irreparable harm for which they have no adequate remedy at law.



law.

24 5216287.5

COUNT IX

BREACH OF FIDUCIARY DUTY



106. As Acting Manager and Kitchen Supervisor, Main Chef and Salad Chef at Wild

Ginger, the Individual Defendants owed Plaintiffs a fiduciary duty to act in Plaintiffs best

interests and to exercise requisite loyalty and care in discharging such duty.

107. Through their aforementioned wrongful conduct, including acts of conspiracy,

self-dealing, misappropriation and infringement, the Individual Defendants have willfully and

maliciously, and with actual intent to harm Plaintiffs, violated their fiduciary obligations and

duties of loyalty and care to Plaintiffs.

108. The Individual Defendants wrongful acts in this regard constitute transgressions

of an ongoing nature, for which Plaintiffs have no adequate remedy at law, and unless the

Individual Defendants are restrained and enjoined from further wrongful acts, Plaintiffs will

suffer irreparable injury.

109. As a result of the forgoing, Plaintiffs have been injured and are entitled to

damages in an amount to be set forth at trial, including the disgorgement of the salaries the

Individual Defendants received from Wild Ginger, and restitution of all employment related

taxes, costs and expenses in connection with the Individual Defendants employment at Wild

Ginger during the period they were conspiring to unlawfully compete with Plaintiffs.

25 5216287.5

COUNT X

BREACH OF FAITHLESS SERVENT DOCTRINE



111. The Individual Defendants were all employed by Plaintiffs, and during that time,

the Individual Defendants were entrusted to act in the best interest of Plaintiffs in, among other

things, operating Wild Ginger, preparing the food items, overseeing and supervising vendors

and inventory, employees, and customers.

112. As such, the Individual Defendants owed Plaintiffs duties of loyalty and fidelity,

were prohibited from acting in a manner inconsistent with their agency or trust and were bound

to exercise the utmost good faith and loyalty in performance of their duties to Plaintiffs.

113. As detailed above, in the fall of 2014, if not earlier, the Individual Defendants,

while all employed by Plaintiffs at Wild Ginger, embarked on an elaborate and intentional

scheme to deceive the public, infringe upon Plaintiffs Wild Ginger Trade Dress and

copyrighted Menu, misappropriate Plaintiffs trade secrets and proprietary information and

otherwise engage in unfair competition by forming and operating the competing Jujube

restaurant.

114. Defendants have misappropriated and converted Plaintiffs corporate assets for

Defendants own benefit, including customers and goodwill, by deceiving Plaintiffs customers

and suppliers.

115. The Individual Defendants have acted in a manner wholly inconsistent with their

employment with Plaintiffs and failed to exercise the utmost good faith in the performance of

26 5216287.5

their duties. By engaging in this improper conduct, the Individual Defendants acted in a

manner directly adverse to and wholly inconsistent with their agency obligations to Plaintiffs.

116. Because the Individual Defendants have acted as faithless servants and violated

their duties to Plaintiffs, the Individual Defendants must disgorge, and Plaintiffs are entitled to

recover, among other things, all sums paid as compensation, including salary, from at least

September 2014 until present.

COUNT XI

MISAPPROPRIATION OF TRADE SECRETS AND CONFIDENTIAL AND PROPRIETARY INFORMATION



118. Plaintiffs trade secrets and confidential and proprietary information, which are

entitled to protection, include Plaintiffs recipes for its food items and secret sauces served at

Wild Ginger, as well as information regarding Plaintiffs operations, staff compensation,

suppliers and clients

119. Plaintiffs trade secrets and confidential and proprietary information are known

only to Plaintiffs and are sufficiently secret.

120. Plaintiffs trade secrets and confidential and proprietary information have

economic value.

121. During their employment by Plaintiffs at Wild Ginger, the Individual

Defendants were afforded access to Plaintiffs confidential and proprietary information

concerning, among other things, their recipes, operations, staff compensation, suppliers and

clients.

27 5216287.5

122. Upon information and belief, the Individual Defendants intentionally

misappropriated Plaintiffs confidential and proprietary information by disclosing it to the

others, including Defendant Jujube Tree Inc.

123. Defendants have misappropriated and are using Plaintiffs trade secrets and

confidential and proprietary information for their own benefit at Jujube in order to unlawfully

compete with Plaintiffs.

124. As a result of the misappropriation of Plaintiffs trade secrets and confidential

and proprietary information, Plaintiffs have been injured and are entitled to damages.

125. Unless Defendants are enjoined from using Plaintiffs confidential and

proprietary information, Defendants will continue to profit from their dishonest and unlawful

exploitation of Plaintiffs confidential and proprietary information, and Plaintiffs will be

irreparably harmed.

COUNT XII

TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS



127. As set forth herein, Defendants engaged in unlawful, tortious, unreasonable, and

unjustifiable acts intended to interfere with prospective business relationships between

Plaintiffs and third parties including Plaintiffs current and future customers.

128. As set forth herein, Defendants intentionally and without justification or excuse,

interfered with Plaintiffs potential relationships with current and future customers by

misappropriating Plaintiffs confidential information and infringing on Plaintiffs Wild Ginger

28 5216287.5

Trade Dress and copyrighted Menu in a deliberate attempt to solicit and divert customers and

potential customers away from Plaintiffs, all for the purpose of causing harm to Plaintiffs.

129. Defendants foregoing acts of tortious interference with prospective economic

advantage have caused, and continue to cause, injury and damages to Plaintiffs.

COUNT XIII

INJUNCTION



131. Plaintiffs will be irreparably harmed if Defendants are not enjoined from

infringing upon Plaintiffs Wild Ginger Trade Dress and copyrighted Menu, misappropriating

Plaintiffs trade secrets and confidential and proprietary information, and from continuing to

steal and otherwise harm Plaintiffs business interests.

132. Plaintiffs do not have an adequate remedy at law for Defendants infringement,

misappropriation and their other ongoing misconduct.

133. Plaintiffs are substantially likely to succeed on the merits of its claims against

Defendants.

134. Entry of an injunction will serve the public interest.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs demands judgment in its favor and against Defendants as

follows:

1. That Defendants Jujube Restaurant be immediately closed.

2. That Defendants, and their members, officers, agents, servants, distributors,

affiliates, employees, attorneys and representatives and all those in privity or acting in concert

29 5216287.5

with Defendants, and each of them, be permanently enjoined and restrained from, directly or

indirectly:

(a) Using the identical trade dress as Wild Ginger or any other trade dress

confusingly similar thereto, in connection with Defendants restaurant;

(b) Using in any other way the Wild Ginger Menu or any other menu so

similar to Plaintiffs Wild Ginger Menu as to be likely to cause confusion,

mistake or deception;

(c) Falsely designating the origin, sponsorship, or affiliation of the

Defendants services in any manner;

(d) Otherwise competing unfairly with Plaintiffs in any manner;

(e) Using any trade dress or menu which create a likelihood of injury to the business reputation of Plaintiffs and the goodwill associated therewith;

(f) Using any trade practices whatsoever including those complained of herein,

which tend to unfairly compete with or injure Plaintiffs business and goodwill pertaining thereto; and

(g) Continuing to perform in any manner whatsoever any of the acts

complained of in this Complaint.

3. That Defendants be required to pay to Plaintiffs compensatory damages for the

injuries sustained by Plaintiffs in consequence of the unlawful acts alleged herein and that such

damages be trebled pursuant to 15 U.S.C. 1117 because of the willful and unlawful acts as

alleged herein.

4. That Defendants be required to pay Plaintiffs punitive damages in an amount to

be determined at trial

Documents

Wild Ginger Complaint (via Court)