luv n' care et. al. v. heb grocery company et. al

8/2/2019 Luv N' Care et. al. v. HEB Grocery Company et. al.

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

LUV N CARE, LTD. andADMAR INTERNATIONAL, INC.,

Plaintiffs,v.

HEB GROCERY COMPANY, LP and

HEBCO, GP LLP d/b/a HEB

Defendant.

Civil Action No.

JURY TRIAL DEMANDED

COMPLAINT

Plaintiffs Luv n care, Ltd. and Admar International, Inc. (collectively Plaintiffs,) by

their attorneys, hereby complain of Defendants HEB Grocery Company, LP and HEBCO, GP

LLP d/b/a H-E-B (collectively Defendants) as follows:

JURISDICTION AND VENUE

1. This action is for patent infringement arising under the Patent Laws of the United States,35 U.S.C. 101 et seq., trade dress infringement and unfair competition under section 43

of the Lanham Act, 15 U.S.C. 1125 and for unfair competition, trade dress infringement

under the common law of the State of Texas, and violation of the Texas Business and

Commerce Code. This Court has jurisdiction over the federal claims of this action

pursuant to 28 U.S.C. 1331, 28 U.S.C. 1338 and 15 U.S.C. 1121, and has jurisdiction

over the state claims under 28 U.S.C. 1338(b) and further pursuant to its supplemental

jurisdiction under 28 U.S.C. 1367. The state claims asserted herein are so related to the

federal claims as to form part of the same case or controversy.


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2. This action arises from Defendants patent infringement, unfair and deceptive businesspractices, and offer for sale, sale, and distribution of products which are deceptive copies

of Plaintiffs product designs and trade dress.

3. This court has personal jurisdiction over Defendants in that Defendants are licensed to dobusiness in the State of Texas, operate stores selling the accused products in Texas, and

have otherwise engaged in acts constituting doing business in this State, including in this

judicial district, and have intentionally directed their tortious activities toward Texas,

including in this judicial district. Defendants have sold the accused products in Texas,

and have delivered their infringing products into the stream of commerce with the

expectation that they will be purchased by consumers in this State, including in this

judicial district.

4. Venue in this district is proper pursuant to 28 U.S.C. 1391(b) and (c) and 28 U.S.C. 1400(b).

THE PARTIES

5. Plaintiff Luv n care, Ltd. (Luv n care) is a corporation organized and existing underthe laws of the State of Louisiana, having a principal place of business at 3030 Aurora

Avenue, Monroe, Louisiana 71201.

6. Plaintiff Admar International, Inc. (Admar) is a corporation organized and existingunder the laws of the State of Delaware having a principal place of business at 3030

Aurora Avenue, Monroe, Louisiana 71201. Admar is an affiliate of Luv n care.

7. Upon information and belief, Defendant HEB Grocery Company, LP (HEB) is acorporation organized and existing under the laws of the State of Delaware, having a

principal place of business at 646 South Main, San Antonio, Texas 78204.


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8. Upon information and belief, Defendant HEBCO, GP LLP (HEBCO) is a corporationorganized and existing under the laws of the State of Delaware, having a principal place

of business at 646 South Main, San Antonio, Texas 78204.

9. Royal King Infant Products Co., Ltd. (RK) is a Thailand manufacturer of babyproducts.

10. Upon information and belief, Munchkin, Inc. (Munchkin) is a manufacturer of babyproducts organized and existing under the laws of the State of California.

11. Upon information and belief, Defendants obtained some or all of the accused productsfrom RK and/or Munchkin.

FACTS

LUV N CARES PATENT

12. Mr. Nouri E. Hakim is the inventor of very popular, novel, and nonobvious ornamentaldesigns relating to cups and drinking tops for childrens cups.

13. On March 15, 2011, United States Patent No. D634,439 S entitled Drinking Cup Topwas duly and lawfully issued to Nouri E. Hakim by the United States Patent and

Trademark Office hereinafter the 439 patent). A copy of the 439 patent is attached

as Exhibit 1 hereto.

14. Luv n care is the owner of all right, title and interest in the 439 patent.DEFENDANTS ILLEGAL ACTIVITIES

15. Defendants are corporations which operate retail stores in Texas.16. In the past, Defendants have regularly bought and sold products from Plaintiff Luv n

care.


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17. Within the recent past, however, Defendants have turned to RK and Munchkin to securecheap, illegal copies of Plaintiffs products.

18. RK is a Thailand company which engages in regular and repeated copying and piracy ofintellectual property.

19. Munchkin is a United States company that has copied Plaintiffs soft top cup design.20. RK and Munchkin have taken the products, packaging, and/or trademarks of Plaintiffs,

and copied and imitated them without authorization.

21. Defendants have then offered for sale, sold, and distributed, those false, unauthorizedcopies to consumers throughout Texas.

22. The Defendant retailers have deliberately decided to sell product designs and/orpackaging that confusingly imitates the appearance of the products and packaging of Luv

n care.

23. Defendants are using those illegal copies to replace Plaintiffs products previously sold inDefendants retail stores.

24. Defendants bad faith activities have caused deception in the marketplace, and extensivedamage to Plaintiffs, their business and their reputation.

DEFENDANTS INFRINGEMENT

OF LUV N CARES PATENT

25. During the term of the 439 patent, Defendants have manufactured, offered for sale, sold,used, and/or imported products infringing on the patented design of the 439 patent.

26. Defendants infringing products include cups currently being offered for sale and sold.Images of examples of infringing products are attached as Exhibit 2 hereto.

27. Upon information and belief, Defendants have sold additional products manufactured byRK and Munchkin, infringing the 439 patent.


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28. Defendants acts have been without license or authority of Plaintiffs.PLAINTIFFS TRADEMARKS AND TRADE DRESS

29. Plaintiff Luv n care is one of the leading baby product companies in the world today.Luv n care and its brands are well known throughout the United States and foreign

countries as a result of the popular products that it has designed, introduced and

commercialized in interstate and international commerce for use by babies and young

children.

30. Admar is the owner of various United States trademarks under which trademarks Luv ncare sells good throughout the United States under exclusive rights from Admar.

31. Plaintiffs have used their trademarks on a wide variety of childrens and infants productssold in interstate commerce, including, but not limited to, childrens non-spill drinking

cups, baby bottles, infant pacifiers, teethers and so forth. Plaintiffs have generated

hundreds of millions of dollars in revenue from sale of goods under their trademarks.

32. Plaintiffs expended significant time, funds and effort in designing and developingaesthetically appealing and attractive product designs for Plaintiffs goods.

33. Plaintiffs expended significant time, funds and effort in promoting, advertising,marketing, and popularizing Plaintiffs goods.

34. As a result of Plaintiffs design efforts and their promotional, advertising, and marketingactivities, Plaintiffs product designs, trademarks and trade dress have all become widely

known throughout the United States and associated with Plaintiffs.

35. Plaintiffs products are among the most popular and well known products in theirindustry.


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36. The appearance of Plaintiffs original design of their non-spill childrens drinking cups,including its Gripper Cup and Flip-it cup (collectively Non-Spill Cups) are

distinctive symbols which serve as trademarks or trade dress of Plaintiffs products in

interstate commerce.

37. The design and appearance of Plaintiffs Non-Spill Cups has acquired secondarymeaning, and are recognized as identifying Plaintiffs high quality products and services.

38. Plaintiffs intellectual property, including their trademarks, trade dress, and associatedgoodwill directed to their Non-Spill Cups, are valuable assets of Plaintiffs.

39.

The appearance of Plaintiffs original design in their Gripper Cup products (Gripper

Cup) is a distinctive symbol which serves as a trademark or trade dress of Plaintiffs

products in interstate commerce.

40. The design and appearance of Plaintiffs Gripper Cup has acquired secondary meaningand is recognized as identifying Plaintiffs high-quality products and services.

41. Plaintiffs intellectual property, including their trademarks, trade dress and theirassociated goodwill directed towards their Gripper Cups, are valuable assets of Plaintiffs.

42. The appearance of Plaintiffs original design of their Flip-it Cup products (Flip-itCup) is a distinctive symbol which serves as a trademark or trade dress of Plaintiffs

products in interstate commerce.

43. The design and appearance of Plaintiffs Flip-it Cup has acquired secondary meaning andis recognized as identifying Plaintiffs high-quality products and services.

44. Plaintiffs intellectual property, including their trademarks, trade dress, and theirassociated goodwill towards their Flip-it Cups, are valuable assets of Plaintiffs.


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45. Defendants have offered for sale, sold and distributed false, unauthorized copies ofPlaintiffs Gripper Cups and Flip-It cups to consumers throughout the United States.

46. The images of Defendants unauthorized products shown in Exhibit 2 to this Complaintare examples of its knock-offs of Plaintiffs products from RK and Munchkin sold in

Defendants stores.

47. These examples are not exhaustive.48. Defendants bad faith activities have caused and will continue to cause a likelihood of

deception and confusion in the marketplace among consumers, and extensive damage to

Plaintiffs and their business, goodwill and reputation.

DEFENDANTS INFRINGEMENT OF

PLAINTIFFS GRIPPER CUP PRODUCT DESIGN

49. Attached as Exhibit 3 hereto is an image of Plaintiffs Gripper Cup product next to animage of Defendants first generation copy thereof.

50. The image on the right-hand side of Exhibit 3 depicts Plaintiffs original non-spillchildrens drinking cup, known as its Gripper Cup.

51. On the left side of Exhibit 3 is an image of a deceptive and confusing first generationknock-off from RK that Defendants have offered for sale and sold, and are, upon

information and belief, continuing to offer for sale and sell, in interstate commerce.

52. Attached as Exhibit 4 hereto is an image of Plaintiffs Gripper Cup product next to animage of Defendants second generation copy thereof.

53. The image on the right-hand side of Exhibit 4 depicts Plaintiffs original non-spillchildrens drinking cup, known as its Gripper Cup.


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54. On the left side of Exhibit 4 is an image of a deceptive second generation knock-off fromRK that Defendants have offered for sale and sold, and are, upon information and belief,

continuing to offer for sale and sell, in interstate commerce.

55. Attached as Exhibit 5 hereto is an image of Plaintiffs Gripper Cup cap next to an imageof Defendants copy thereof.

56. The image on the right-hand side of Exhibit 5 depicts Plaintiffs Gripper Cup cap.57. On the left side of Exhibit 5 is an image of a deceptive and confusing knock-off from RK

that Defendants have offered for sale and sold, and are continuing to offer for sale and

sell, in interstate commerce.

58. Attached as Exhibit 6 hereto is an image of Plaintiffs Gripper Cup next to an image ofanother example of Defendants copy thereof.

59. The image on the right-hand side of Exhibit 6 depicts Plaintiffs original non-spillchildrens drinking cup known as its Gripper Cup.

60. On the left side of Exhibit 6 is an image of a deceptive Munchkin knock-off thatDefendants have offered for sale and sold, and are, upon information and belief,

continuing to offer for sale and sell, in interstate commerce.

61. The overall appearance of Plaintiffs Gripper Cup product is protectable, distinctive andnon-functional trade dress. Plaintiffs trade dress includes the combination and

arrangement of the following elements in its cap and cup, when the cap and cup are

considered individually, as well as the combination and arrangement of the following

elements of the cap and cup when the cap and cup are attached together.

62. With respect to the Gripper Cup cap, Plaintiffs trade dress includes the followingelements: an oval-shaped, clear, silicone spout, resting on a circular, clear, silicone, disc-


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like insert that is convex, raised above and resting on the cap, providing a ridged or

rounded layered-like appearance, the cap being a custom-colored, bell-shaped cap with

relief impressions along the sides, with an image of the trade dress being shown more

fully in Exhibit 5.

63. With respect to Plaintiffs trade dress in their Gripper Cup, the cup is a clear or custom-colored translucent cup having an hour-glass shape in front and back; the top portion of

the cup possesses a hood-like design that starts at the top and extends in a fluid, curved

form downward, ending near the bottom of the cup, the middle portion of the cup has a

series of inset wave and ripple-like grooves that extend in a concave fashion toward the

interior of the cup; the bottom and top of the cup have a bulbous-like shape, with the top

being more round than the bottom of the cup, with an image of the trade dress being

shown more fully in Exhibit 3.

64. As shown in Exhibit 3, RK has copied the appearance of Plaintiffs Gripper Cup product.65. RK has also copied the appearance of Plaintiffs packaging for its Gripper Cup.66. Defendant is selling the RK copy in its retail stores.67. As show in Exhibit 6, Munchkin has copied the appearance of Plaintiffs Gripper Cup

product.

68. Munchkin has also copied the appearance of Plaintiffs packaging for its Gripper Cup.69. Defendant is selling the Munchkin copy in its retail stores.

DEFENDANTS INFRINGEMENT OF

PLAINTIFFS FLIP-IT PRODUCT DESIGN

70. Attached as Exhibit 7 hereto is an image of Plaintiffs Flip-it Cup product.


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71. Attached as Exhibit 8 hereto is an image of a deceptive and confusing knock-off thatDefendants have offered for sale and sold, and are continuing to offer for sale and sell in

interstate commerce.

72. The overall appearance of Plaintiffs Flip-it Cup is protectable, distinctive, non-functionaltrade dress. Plaintiffs trade dress includes the combination and arrangement of the

following elements of their cap, when the cap is considered individually, as well as the

combination and arrangement of the following elements when the cap and cup are

attached together.

73.

With respect to the Flip-it Cup product, Plaintiffs trade dress includes the combination

and arrangement of a flip-top football helmet shaped cap, and a ring shaped base, when

the cap is considered individually, and when attached to a cup, with an image of the trade

dress being shown more fully in Exhibit 7.

74. As shown in Exhibit 8, RK has copied the appearance of Plaintiffs Flip-it Cup product.75. RK has also copied the appearance of Plaintiffs packaging for its Flip-it Cup.76. Defendant is selling the RK copy in its retail stores.

FALSE DESIGNATION AND CONFUSION

77. Defendants are profiting from the sales of these unauthorized knock-offs.78. The trade and consuming public are likely to be misled into believing that the

unauthorized knock-offs of the tops and/or tops and cups of Plaintiffs Gripper Cups and

Flip-it Cups (hereinafter, collectively the Products) originate with or are otherwise

authorized, sponsored and/or licensed by, or associated with Plaintiffs.

79. Defendants are using the Products designs to trade off of Plaintiffs reputation andgoodwill and to create deception in the marketplace.


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80. As shown in the Exhibits, RK and Munchkins products, sold in Defendants retail stores,have repeatedly been designed to resemble those of Plaintiffs, to cause confusion,

mistake, and deception in the marketplace.

81. Defendants activities mislead the trade and purchasing public into believing that goodsmarketed and sold by Defendants originate with or are otherwise authorized by,

sponsored by, licensed by, or associated with Plaintiffs.

82. Upon information and belief, Defendants in connection with goods, have used incommerce words, terms, names, symbols or devices, or combinations thereof, and/or

false designations or origin, false and misleading descriptions of fact and misleading

representations of fact, which are likely to cause confusion, to cause mistake, and to

deceive as to the affiliation, connection, and association of Defendants with the Plaintiffs

and as to the origin, sponsorship, and approval of Defendants goods, services and

commercial activities.

83. Plaintiffs marks, including their product designs, their packaging, and the marks thereon,are widely recognized by consumers of children and infant care products and by the

general consuming public of the United States as a designation of source of Plaintiffs

goods.

84. Plaintiffs trademarks and trade dress concerning the Products are not functional.WILLFUL INFRINGEMENT

85. Defendants activities have been willful and deliberate.86. Defendants are familiar with Plaintiffs original products and the 439 patent, and have

deliberately chosen to offer for sale and sell infringing products from RK in Thailand and

from Munchkin.


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87. Defendants have replaced the original Luv n care products that were previously sold inits stores with the RK and Munchkin copies.

88. Defendants were expressly placed on notice and verbally warned by Plaintiff Luv n careto avoid copied products from the RK intellectual property pirate, but chose to disregard

these warnings and to engage in their illegal activities nonetheless.

89. In addition, Defendants were notified in writing.90. Copies of Plaintiff Luv n cares notice letters are attached hereto as Exhibit 9.91. Defendants actions have caused and are causing irreparable damage to Plaintiffs, their

business and their reputation.

92. Plaintiffs have been extensively damaged by Defendants bad faith activities and willcontinue to be so damaged unless Defendants are restrained and enjoined by this Court.

COUNT I

PATENT INFRINGEMENT

(35 U.S.C. 101 et seq.)

93. Plaintiffs repeat and re-allege the allegations contained in each of the proceedingparagraphs of this Complaint, as though fully set forth herein.

94. This claim arises under the Patent Laws of the United States, 35 U.S.C. 101 et seq.95. This Court has jurisdiction over this claim pursuant to 28 U.S.C. 1331.96. Defendants unlawful acts constitute infringement of the 439 patent under 35 U.S.C.

271.

97. Defendants have profited from their infringing activities.98. As a result of Defendants conduct, Plaintiffs have been substantially harmed, have

suffered actual damages, have suffered lost profits, and have been forced to retain

counsel and pay costs of court to bring this action.


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COUNT II

LANHAM ACT TRADE DRESS INFRINGEMENT

AND UNFAIR COMPETITION

(15 U.S.C. 1125(a))

99. Plaintiffs repeat and re-allege the allegations contained in each of the precedingparagraphs of this Complaint, as though fully set forth herein.

100. This claim arises under the Lanham Act, 15 U.S.C. 1051 et seq.101. The Court has jurisdiction over this claim pursuant to 28 U.S.C. 1331.102. On the basis of the foregoing paragraphs, Defendants are intentionally using product

trademarks and trade dress confusingly similar to Plaintiffs trademarks and trade dress

directed to the Products in a manner that has caused and is likely to cause confusion, or to

cause mistake, or to deceive as to the affiliation, connection or association of Defendants

goods with Plaintiffs.

103. Defendants activities, in selling and offering for sale merchandise which confusinglyimitates and copies Plaintiffs product designs, constitutes unfair competition, false

designation of origin, and false description and representations in violation of Section

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

104. Plaintiffs have no adequate remedy at law. As a result of the aforesaid acts ofDefendants, Plaintiffs are suffering irreparable harm, and will continue to do so, unless

Defendants are restrained and enjoined by this Court from continuing to commit the

aforesaid acts.

105. Defendants acts of infringement were and are willful and deliberate. They haveknowingly replaced Plaintiffs original products with unauthorized copies from the RK

manufacturer in Thailand.

106. Defendants have profited from their infringing activities.


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107. Plaintiffs have suffered, and continue to suffer, substantial damages as a result ofDefendants bad faith activities, in an amount to be determined by the Court.

COUNT III

TORTIOUS INTERFERENCE WITHEXISTING CONTRACTUAL RELATIONS


109. This claim arises under the common law of the State of Texas.110. Upon information and belief, Defendants are aware of Plaintiffs suits against RK, the

Thailand manufacturer, which suits are related to the products that are the subject of this

lawsuit.

111. Upon information and belief, Defendants are also aware of the existing, valid andenforceable settlement agreement between RK and Plaintiffs in Plaintiffs suit in the

Eastern District of Texas against RK (Civil Action Number 2:08-cv-163) and RKs

obligation under that agreement to cease and desist from manufacture and sales of

products likely to cause confusion with Plaintiffs products which are the subject of this

lawsuit.

112. A copy of that settlement agreement is attached as Exhibit 10 hereto.113. Defendants have deliberately and knowingly chosen to sell products that violated

Plaintiffs rights under the settlement agreement with the intent to harm Plaintiffs,

thereby contributing to RKs breach of its settlement agreement, despite Defendants

knowledge of Plaintiffs rights under the RK settlement agreement.

114. Defendants acts of interference have been willful, intentional, and malicious, and havebeen the proximate cause of damage to Plaintiffs.


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115. Defendants tortious activities, in selling and offering for sale products which areconfusingly similar to Plaintiffs products, which infringe Plaintiffs intellectual property,

and which are barred under Plaintiffs settlement agreement with RK, constitute tortious

interference with existing contractual relations, in violation of the common law of the

state of Texas.

116. Plaintiffs have suffered injury and actual damage due to Defendants illegal actions.COUNT IV

UNFAIR COMPETITION UNDER TEXAS LAW


118. This claim arises under the common law of the State of Texas.119. This Court has jurisdiction over this claim pursuant to 28 U.S.C. 1367.120. Plaintiffs have created and promoted their child and baby products, including their

trademarks, packaging and trade dress, though extensive time, labor, skill, and money.

121. Defendants have misappropriated the results of that labor and skill and those expendituresof Plaintiffs.

122. Defendants have used trade dress that is identical to or confusingly similar to Plaintiffsfor identical or highly similar goods, in competition with Plaintiffs, thereby gaining a

special and unfair advantage in that competition, because Defendants bore little or no

burden of expense of development and promotion of the trade dress and packaging

incurred by Plaintiffs.

123. By knowingly using confusingly similar product trade dress for identical or highly similargoods, to compete against Plaintiffs goods, Defendants have misappropriated a

commercial advantage belonging to Plaintiffs.


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124. Defendants have also engaged in bad faith misappropriation of the labors of Plaintiffswhich is likely to cause confusion and to deceive the purchasers as to the origins of the

goods.

125. As set forth above, Defendants have also engaged in tortious acts that have contributed toRKs breach of the RK settlement agreement with Plaintiffs.

126. Defendants actions have caused significant commercial damage to Plaintiffs.127. Defendants business conduct is illegal and actionable under the common law of unfair

competition of the State of Texas.

128.

Plaintiffs have been injured by Defendants illegal actions and are entitled to the

remedies provided under Texas law.

COUNT V

TRADE DRESS INFRINGEMENT UNDER TEXAS LAW


130. This claim arises under the common law of the State of Texas.131. This Court has jurisdiction over this claim pursuant to 28 U.S.C. 1367.132. Defendants conduct and actions set forth above constitutes trade dress infringement in

violation of the common law of the State of Texas.

133. As a result of such infringement, Plaintiffs have suffered damages in the form of lostsales and lost profits and has suffered injury to its goodwill and business reputation.

134. Further, as a result of such infringement, Defendants have made unjust profits and ill-gotten gains from the sale of its goods by trading on the reputation and goodwill

associated with Plaintiffs trade dress.


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135. In addition, Plaintiffs will be irreparably harmed and damaged by the continuation ofsuch unauthorized use.

136. Plaintiffs have no adequate remedy at law for the continuation of such infringement.DAMAGES

137. Plaintiffs have been extensively damaged by Defendants illegal actions in an amount tobe determined by this Court, including lost sales, lost profits, and price erosion, and seeks

an award by the Court of the same and/or disgorgement of Defendants gains, revenues,

profits, and advantages attributable to or derived from those illegal actions.

138. Plaintiffs request that this Court assess enhanced and punitive damages againstDefendants in the fullest amount permissible by law, in view of the egregious, malicious

and extensive nature of Defendants bad faith activities complained of herein, and in view

of the repeated number of violations, the willful nature of the violations, and the

significant damage to Plaintiffs, as set forth above.

JURY TRIAL DEMAND

139. Pursuant to Rule 38 of the Federal Rules of Civil Procedure and all applicable law,Plaintiffs request a trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request a judgment of this Court:

(A) That Defendants be adjudged to have engaged in patent infringement of Plaintiffsrights under the 439 patent, under 35 U.S.C. 101 et seq.

(B) That Defendants be adjudged to have engaged in federal unfair competition andtrade dress infringement under Section 43 of the Lanham Act, 15 U.S.C. 1125,


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tortious interference, unfair competition, and trade dress infringement, under

federal law and/or the law of the State of Texas;

(C) That the 439 patent was duly and legally issued by the United States Patent andTrademark Office, and is valid and enforceable;

(D) That each Defendant, its officers, agents, servants, employees, representatives,distributors and all persons in concert or participation with Defendant be enjoined

pursuant to 35 U.S.C. 283 from engaging in any activities which infringe

Plaintiffs rights in the 439 patent under 35 U.S.C. 271;

(E)

That each Defendant, its officers, agents, servants, employees, representatives,

distributors, and all persons in concert or in participation with Defendants be

enjoined pursuant to 35 U.S.C. 283 from making, using, importing, exporting,

offering for sale and selling any products which directly infringe or contributorily

infringe or actively induce infringement of the 439 patent under 25 U.S.C. 271;

(F) That each Defendant, its officers, agents, servants, employees, representatives,distributors and all persons in concert or participation with Defendants be

enjoined from engaging in any activities, including but not limited to making,

using, importing, offering for sale and selling any products or packaging which

directly or contributorily infringe or actively induce infringement of Plaintiffs

rights in their products or advertising materials, including Plaintiffs rights in their

trademarks and trade dress and Plaintiffs rights pursuant to its settlement

agreement with RK;

(G) That each Defendant, its officers, agents, servants, employees, representatives,distributors, and all persons in concert or participation with Defendants be


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enjoined from offering for sale, selling, or marketing merchandise that tends to in

any way deceive, mislead or confuse the public into believing that the

merchandise sold by Defendants in any way originates with, is sanctioned by, or

is affiliated with Plaintiffs;

(H) That each Defendant, its officers, agents, servants employees, representatives,distributors and all persons in concert or participation with Defendants be

enjoined from otherwise competing unfairly with Plaintiffs;

(I) That each Defendant, its officers, agents, servants, employees, representatives,distributors, and all persons in concert or participation with Defendants be

enjoined from engaging in further acts of misrepresentation regarding Plaintiffs

and Plaintiffs products;

(J) That each Defendant, its officers, agents, servants, employees, representatives,distributors, and all persons in concert or participation with Defendants be

enjoined from engaging in further deceptive and unfair business practices with

respect to Plaintiffs;

(K) That each Defendant, its officers, agents, servants, employees, representatives,distributors, and all persons in concert or participation with Defendants be

enjoined from engaging in further acts infringing Plaintiffs rights under Texas

law;

(L) That each Defendant, its officers, agents, servants, employees, representatives,distributors, and all persons in concert or participation with Defendants be

enjoined from engaging in any and all further acts infringing Plaintiffs rights

under federal and state law;


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(M) That Defendants be directed to file with this Court and serve on Plaintiffs withinthirty (30) days after service of the injunction, a report in writing, under oath,

setting forth in detail the manner and form in which the Defendants has complied

with the injunction;

(N) That Defendants be required to account for and pay over to Plaintiffs all damagessustained by Plaintiffs, as well as any and all of Defendants gains, revenues,

profits, and advantages attributable to or derived from the acts complained of in

this Complaint, including an assessment of interest on the damages so computed,

and that the damages be trebled, pursuant to Section 35 of the Lanham Act, 15

U.S.C. 117, as well as 35 U.S.C. 284 and 289, and all further applicable law;

(O) That such award of damages be enhanced to the maximum available for eachinfringement, in view of Defendants willful infringement of Plaintiffs rights;

(P) That Defendants be required to deliver for the impoundment during the pendencyof this action, and for destruction thereafter, all copies of the infringing products

in its possession or under its control;

(Q) That Plaintiffs be awarded punitive damages because of the egregious, maliciousand tortious conduct of Defendants complained of herein;

(R) That Plaintiffs recover the costs of this action, including their expenses andreasonable attorneys fees pursuant to 15 U.S.C. 1117, 35 U.S.C. 285 and all

further applicable law, because of the deliberate and willful nature of the

infringing activities of Defendants sought to be enjoined hereby, which make this

an exceptional case warranting such award;

(S) That Plaintiffs be awarded pre-judgment and post-judgment interest;


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(T) That Plaintiffs obtain all further relief permitted under the laws of the UnitedStates and the State of Texas;

(U) That Plaintiffs obtain all such other and further relief as the Court may deem justand equitable.

Dated April 9, 2012 /s/Morris E. Cohen____________

Morris E. Cohen (Member of the Bar, E.D.

Texas)Lee A. Goldberg (forpro hac vice)

GOLDBERG COHEN LLP

1350 Avenue of the Americas, 4th

FloorNew York, New York 10019

(646) 380-2087 (phone)

(646) 514-2123 (fax)[email protected]

[email protected]

Of Counsel:

Joe D. Guerriero

Luv n care Ltd.

3030 Aurora AvenueMonroe, Louisiana 71201

318-338-3603 (phone)318-388-5892 (fax)

[email protected]

Attorneys for Plaintiffs

luv n' care et. al. v. heb grocery company et. al

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