Complaint Bravo Kennel

8/6/2019 Complaint Bravo Kennel

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0Adam R. BialekScott M. SmedresmanWILSON, ELSER, MOSKOWITZ,EDELMAN & DICKER LLP150 E. 42nd StreetNew York, NY 10017Telephone: 212-490-3000Attorneys for PlaintiffBRAVO KENNEL, LLCUNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK

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us. DISit


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FACTUAL BACKGROUND10. Bravo Kennel has been in the business of breeding and selling dogs since at least as

early as March of2007.11. Dogs bred by Bravo Kennel are ofthe highest quality, and are frequently used as

show dogs in national competitions.12. As a result of their quality and reputation, dogs bred by Bravo Kennel are sought after

as show dogs and for use in breeding other dogs.13. Since at least as early as March of 2007, and uninterrupted through the present time,

Bravo Kennel has used the trademarks BRA YO'S and BRAVO KENNEL (the "Marks") ininterstate commerce throughout the United States, including in this District, as identifiers of itsgoods and services.

14. Bravo Kennel is the owner of a federal trademark registration for the mark BRAVOKENNEL, registered under Reg. No. 3849179 in connection with dog breeding services, amongother goods and services. This registration is valid and subsisting.

15. Bravo Kennel has widely advertised its goods and services under the Marks, and hasspent considerable sums in developing their business and creating a customer base. BravoKennel has accrued significant, valuable and protectable goodwill in its Marks. Bravo Kennel'sMarks are identifiers of source for Bravo Kennel's goods and services, and are recognized by thepublic as designating Bravo Kennel's goods and services.

16. Upon information and belief, Peponakis is in the business ofbreeding and sellingdogs.

17. Upon information and belief, Peponakis advertises its services and the dogs it has forsale over the internet.

18. Peponakis and Bravo Kennel are competitors in the breeding industry.34382096v.l

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19. In or around September or 2006, during the course ofBravo Kennel's business, a dognamed Munstro was born to Bravo Kennel.

20. Although in fine health, Munstro had a birth defect in the form of a clubbed tailwhich made him unsuitable for show or sire purposes. In order to maintain the quality of itsbreeding and reputation, Bravo Kennel chose not to use Munstro as a sire for future litters orotherwise hold out Munstro as being the product ofBravo Kennel.

21. In or around November of2006, Peponakis and Beau Hadden, a principal in BravoKennel, had a discussion regarding how Peponakis has recently lost a beloved pet dog.

22. As a result, on or about November of 2006, during an in-person meeting at BravoKennel's place ofbusiness in New York, Mr. Hadden offered to give Munstro to Peponakis foruse as a companion pet, but only if Peponakis agreed not to breed Munstro or otherwisedesignate Munstro as originating from Bravo Kennel.

23. Peponakis agreed to the conditions of this transfer and accepted Munstro. BravoKennel transferred Munstro to Peponakis at Bravo Kennel's place of business in New York,where Peponakis picked-up Munstro.

24. Despite the terms of this agreement, Peponakis has used Munstro as a breeding dog,and has held out Munstro as originating from Bravo Kennel, by referring to the dog as "Bravo'sMunstro."

25. Upon information and belief, in the course of advertising and selling these dogs,Peponakis has used the mark BRAVO KENNEL and/or BRAYO'S.

26. Further, upon information and belief, Peponakis has used the Marks in connectionwith the sale ofdogs sired by Munstro or otherwise including Munstro in their lineage.

27. Peponakis has not been granted any right to use the Marks.

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54. Peponakis' wrongful acts and/or willful infringements have caused, and will continueto cause, irreparable harm to Bravo Kennel unless permanently enjoined.

55. Peponakis is profiting and will continue to profit from its unlawful actions.Peponakis' actions are causing and will continue to cause Bravo Kennel monetary damage inamounts presently unknown but to be determined at trial.

56. Peponakis' conduct constitutes unfair competition and trademark infringement inviolation ofNew York State law.

FIFTH CLAIM FOR RELIEFState Dilution, Injury to Business Goodwill

57. Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained inParagraphs I though 56 hereof as if fully set forth herein at length.

58. Bravo Kennel's Marks are distinctive within the meaning ofNew York GeneralBusiness Law, Section 360-1.

59. Peponakis' conduct has caused and continues to cause a likelihood of injury to thegoodwill and business reputation ofBravo Kennel and created a likelihood of dilution of thedistinctive quality ofBravo Kennel's Marks.

60. Peponakis' wrongful acts and/or willful infringements have caused, and will continueto cause, irreparable harm to Bravo Kennel unless permanently enjoined.


62. Peponakis' conduct constitutes dilution and injury to business reputation in violationofNew York State law.

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SIXTH CLAIM FOR RELIEFFederal False AdvertisingLanham Act 43, 15 U.S.C. 112563. Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained in

Paragraphs 1 though 62 hereof as if fully set forth herein at length.64. The origin, ancestry and breeder of a dog are material to a consumer's decision

whether to purchase a certain dog.65. Referring to a dog as "Bravo's Munstro" or descending from "Bravo's Munstro" is a

statement of fact.66. Peponakis' advertisements for dogs descended from "Bravo's Munstro" misrepresent

the nature, character or qualities of Peponakis' and Bravo Kennel's goods and services.67. Peponakis' wrongful acts and/or willful false advertisements have caused, and will

continue to cause, irreparable harm to Bravo Kennel unless permanently enjoined.68. Peponakis is profiting and will continue to profit from its unlawful actions.

Peponakis' actions are causing and will continue to cause Bravo Kennel monetary damage inamounts presently unknown but to be determined at trial.

69. Peponakis' conduct constitutes false advertising in violation of Section 4 3 of theLanham Act, 15 U.S.C. 1125.

SEVENTH CLAIM FOR RELIEFTrade Libel70. Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained in

Paragraphs 1 though 69 hereof as if fully set forth herein at length.71. Upon information and belief, Peponakis has falsely held out its dogs as being

"Bravo's Munstro" or being a descendent from "Bravo's Munstro" for the purpose of interferingwith Bravo Kennel's business and business relationships.

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72. Upon information and belief, Peponakis's false statements have caused others not todo business with Bravo Kennel.

73. Peponakis' wrongful acts and/or willful actions have caused, and will continue tocause, irreparable harm to Bravo Kennel unless permanently enjoined.


75. Peponakis' conduct constitutes trade libel in violation of the laws of the State ofNewYork.

PRAYER FOR RELIEFWHEREFORE, the Bravo Kennel respectfully requests that it be awarded judgment:

A. In favor of Plaintiff and against Defendants on all ofPlaintiffs claims;B. Permanently enjoining and restraining Defendants, their agents, servants, partners,

employees, attorneys and all others in active concert or participation with them, from offering orrendering breeding services through the use of the Marks, or otherwise holding out ordesignating Munstro or any of its descendants under the Marks, or any confusingly similarvariant thereof, in any way;

C. Ordering Defendants, pursuant to 15 U.S.C. 1116, to serve on Bravo Kennelwithin thirty (30) days after service on Defendants ofpreliminary or permanent injunctive orders,a report in writing, under oath, setting forth in detail the manner and form in which Defendantshave complied with the injunction;

D. Requiring Defendants to account for, and pay over to Plaintiff, Defendants'profits and all damages sustained by Plaintiff;

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E. Increasing the amount ofdamages and/or profits awarded to Plaintiff asappropriate pursuant to 15 U.S.C. 1117(a);

F. Awarding Plaintiff its reasonable attorney fees, costs, expenses, and interestpursuant to 15 U.S.C. 1117(a) and other applicable law;

G. A warding Plaintiff such punitive damages for Defendants' willful and intentionalacts of unfair competition and infringement ofPlaintiff's rights that the Court shall deem just andproper; and,

H. Granting such other and further relief as the Court may deem just and proper.

A.

Dated:

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DEMAND FOR JURY TRIALBravo Kennel demands a trial by jury of all issues so triable.

New York, New YorkJuly 12, 2011Yours, etc.

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

By: Adam R. BialekScott M. SmedresmanWILSON, ELSER, MOSKOWITZ,EDELMAN & DICKER LLP150 E. 42nd StreetNew York, NY 10017Attorneys for PlaintiffBRAVO KENNEL, LLCOur File No. 12807.00002

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Complaint Bravo Kennel

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Transcript of Complaint Bravo Kennel