Pelican Brewing Company Complaint

7/26/2019 Pelican Brewing Company Complaint

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Page 1 - COMPLAINTSCHWABE, WILLIAMSON & WYATT, P.C.

Attorneys at LawPacwest Center

1211 SW 5th Ave., Suite 1900Portland, OR 97204

Telephone: 503.222.9981Fax: 503.796.2900

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Michael A. Cohen, OSB #965776

Email: [email protected]

Nicholas (Nika) F. Aldrich, Jr., OSB #160306Email: [email protected]

Alexandra J. Bodnar, OSB #133058

Email: [email protected], WILLIAMSON & WYATT, P.C.

1211 SW 5th Ave., Suite 1900

Portland, OR 97204Telephone: 503.222.9981

Facsimile: 503.796.2900

Attorneys for Plaintiff Pelican Brewing Company

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

PELICAN BREWING COMPANY, an

Oregon corporation,

Plaintiff,

v.

PELICANS WAITING ROOM, LLC

d/b/a PELICANS WAITING ROOM, anOregon limited liability company; NO

COMPLY FOOD GROUP, LLC, an

Oregon limited liability company; and

KYLE ROURKE, an individual,

Defendants.

No. _____________

COMPLAINT

(Federal Trademark Infringement, FederalUnfair Competition, and Common Law

Trademark Infringement and Unfair

Competition)

DEMAND FOR JURY TRIAL

For its Complaint, Plaintiff Pelican Brewing Company (Plaintiff) states and alleges as

follows:

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NATURE OF THE CASE

1. This is a trademark infringement and unfair competition case arising from the

deliberate use by Defendants Pelicans Waiting Room LLC d/b/a Pelicans Waiting Room and

its managing members No Comply Food Group LLC and Kyle Rourke (collectively

Defendants) of a name and logo for a new restaurant and bar that is confusingly similar to

Plaintiffs PELICAN-formative trademarks and logos, including without limitation, Plaintiffs

federally-registered PELICAN PUB & BREWERY, PELICAN BREWERY COMPANY,

PELICAN PUB & BREWERY & Design, INDIA PELICAN, IMPERIAL PELICAN, and

MACPELICANS trademarks. As further detailed herein, Plaintiff, Pelican Brewing Company,

uses its PELICAN-formative marks in Oregon in association with bar and restaurant services and

the manufacture and sale of beer, coffee, and unique foods throughout the Pacific Northwest.

2. Defendants are infringing upon Plaintiffs PELICAN-formative marks by opening

a bar and restaurant in Portland, Oregon that serves beer, coffee, and foods under the confusingly

similar name Pelicans Waiting Room and a similar logo, as well as food and beverages

branded Pelican including an alcoholic beverage called Pelicans Punch.

3. By way of this lawsuit, Plaintiff seeks: (i) an injunction enjoining Defendants

from further use of any trademark consisting of or including the term PELICAN, or any other

trademark or logo confusingly similar to Plaintiffs trademarks and logos, in connection with the

marketing, promotion, sale, and provision of bar and restaurant services and/or related food and

beverage products; and (ii) an award of damages as a result of Defendants infringement and

unfair competition to date.

THE PARTIES

4. Plaintiff Pelican Brewing Company is a corporation duly organized and existing

under the laws of the State of Oregon, with its principal place of business at 9005 Nestucca

Ridge Road, Pacific City, Oregon 97135. Plaintiff is in the business of, among other things, the

marketing, promotion, sale, and/or provision of bar and restaurants services; beer, ale and lager;

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coffee; and other food products, including salad dressing, chowder, and various meat, fish,

poultry, and vegetable-based products.

5. Upon information and belief, Defendant Pelicans Waiting Room, LLC d/b/a

Pelicans Waiting Room (Pelicans Waiting Room) is a limited liability company duly

organized and existing under the laws of the State of Oregon, with an address at 2327 NW

Kearney Street, Portland, Oregon 97203.

6. Upon information and belief, Defendant No Comply Food Group, LLC is a

limited liability company duly organized and existing under the laws of the State of Oregon, with

an address at 7328 N. Central Street, Portland, Oregon 97203. Upon information and belief,

Defendant No Comply Food Group, LLC is the managing member of Defendant Pelicans

Waiting Room.

7. Upon information and belief, Defendant Kyle Rourke is an individual residing in

or around Portland, Oregon, and is a member of Defendant No Comply Food Group, LLC,

8. Upon information and belief, Defendants are in the business of, among other

things, the marketing, promotion, sale, and provision of bar and restaurant services in Portland,

Oregon.

JURISDICTION AND VENUE

9. This Court has original subject-matter jurisdiction over this action pursuant to 28

U.S.C. 1331 and 1338, and 15 U.S.C. 1121 because the action arises, in part, under 15

U.S.C. 1114 and 1125.

10. This Court has jurisdiction over Plaintiffs related common law claims pursuant to

28 U.S.C. 1338, because these claims are joined with substantial and related claims under

federal trademark law, and pursuant to the doctrine of supplemental jurisdiction, 28 U.S.C.

1367.

11. This Court has personal jurisdiction over Defendants because, on information and

belief, Defendants Pelicans Waiting Room and No Comply Food Group, LLC are limited

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liability companies duly organized and validly existing under the laws of the State of Oregon,

and Defendants principal places of business are located in Portland, Oregon, and Defendant

Kyle Rourke registered the domain name www.pelicanswaitingroom.com, as discussed below,

using a Portland, Oregon address, and on information and believe Defendant Kyle Rourke

resides in Portland, Oregon.

12. Venue is proper in this judicial district under 28 U.S.C. 1391(b)(2) because a

substantial part of the events or omissions giving rise to Plaintiffs claims occurred in this

judicial district.

13. Venue is also proper in this judicial district under 28 U.S.C. 1391(b)(1),

because, upon information and belief, all defendants reside in this judicial district.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

Plaintiffs Ownership and Use of the PELICAN Marks

14. Founded in 1995, Plaintiff is in the business of providing bar and restaurant

services, and selling its signature beers, coffees, and unique food products throughout the United

States. Plaintiff operates its Pelican Pub & Brewery restaurant in Pacific City, Oregon and its

Tap Room in Tillamook, Oregon, and is opening the Pelican Brewing Pub in Cannon Beach,

Oregon in late Spring 2016. Plaintiff also has plans to open a PELICAN-branded bar and

restaurant in Portland, Oregon.

15. Plaintiffs customers include individuals from across the United States and around

the world who visit Plaintiffs iconic bar and restaurant to sample its award-winning beers and

enjoy its unique beer cuisine and seafood. Plaintiffs beer is also distributed and sold throughout

Oregon, Washington, and Idaho, and Plaintiff has won numerous national and international

awards for its signature brews.

16. In addition to marketing, advertising, and/or selling its goods and services

throughout the United States, Plaintiff also markets and promotes its bar and restaurant and tap

room through its website, http://pelicanbrewing.com, and generates a significant portion of its

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business through word-of-mouth, its Facebook page, located at

http://www.facebook.com/PelicanBrewery, and tourist guidebooks and industry publications.

17. Since at least as early as 1995 and continuing through the present date, Plaintiff

has provided its bar and restaurant services and sold its beer, ale, and lager under its PELICAN

PUB & BREWERY and PELICAN PUB & BREWERY & Design marks, and since that time

has begun using numerous other PELICAN-formative marks to promote and offer its bar and

restaurant services, beers, and food products.

18. Plaintiff owns numerous federal trademark registrations for its marks, including

without limitation, the following:

Mark Class U.S. App. No.

U.S. Reg. No.

Application Date

Registration Date

PELICAN PUB &BREWERY

32, 43 85/213,110

4,098,067

January 7, 2011

February 14, 2012

PELICAN PUB &

BREWERY

29, 30 85/323,378

4,298,773

May 17, 2011

March 5, 2013

PELICAN PUB &BREWERY

30 85/806,996

4,376,242

December 19, 2012

July 30, 2013PELICAN BREWING

COMPANY

32 85/662,215

4,333,936

June 26, 2012

May 14, 2013

MACPELICANS 32 85/323,396

4,104,710

May 17, 2011

February 28, 2012

INDIA PELICAN 32 85/323,409

4,104,711

May 17, 2011

February 28, 2012

IMPERIAL PELICAN 32 86/010,763

4,494,513

July 15, 2013

March 11, 2014

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32, 43 85/214,115

4,104,207

January 10, 2011

February 28, 2012

29, 30 85/323,364

4,298,772

May 17, 2011

March 5, 2013

30 85/807,029

4,379,714

December 19, 2012

August 6, 2013

32 85/863,585

4,384,065

February 28, 2013

August 13, 2013

A true and correct copy of the certificates of registration for Plaintiffs federally-registered

PELICAN-formative trademarks are attached hereto as Exhibit A.

19. Plaintiff has also developed common law rights in its federally-registered marks

(the PELICAN Registered Marks) based on its use of the marks in commerce.

20. Plaintiff has also used logos in the promotion of its bar and restaurant services and

in the sale of its craft beers and other goods. Plaintiffs logos are circular, with the head of a

pelican facing left, and with the pelicans beak extending beyond the inner circles perimeter.

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21. Plaintiff also uses a neon sign to promote its bar and restaurant services that

embodies Plaintiffs circular pelican logo. Plaintiffs neon pelican sign features a colorful,

cartoonish line drawing of a pelicans head facing left, positioned inside a bold, contrastingly-

colored circle.

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22. Plaintiff has also used the term PELICAN in connection with the sale of

alcoholic beverages, including beers named Pelican Noir, Golden Pelican, Imperial Pelican

Ale, Macpelicans Ale, and Macpelicans Wee Heavy Ale, and it refers to these and its

other craft beers as the Pelican Brews. Plaintiff has won several awards for its beers sold

under its PELICAN-formative Marks. Plaintiff also frequently sells food items bearing the word

PELICAN, including The Pelican Caesar, and Pelican in a Blanket, in furtherance of its

consistent branding of its establishments and its products with the term PELICAN.

23. Plaintiff has developed common law rights in the non-registered marks shown in

paragraphs 20 and 21 and discussed in paragraph 22 (the PELICAN Unregistered Marks, and,

collectively with the PELICAN Registered Marks, the PELICAN Marks) based on its actual

use of the marks.

24. Over the last twenty years, Plaintiff has spent substantial sums promoting its bar

and restaurant services and related goods offered under the PELICAN Marks, and, as a result, a

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significant portion of Plaintiffs relevant consumer demographic, and especially consumers in the

Pacific Northwest, have come to associate the PELICAN Marks with Plaintiff.

25. As a result of Plaintiffs continuous and substantially exclusive use of its

PELICAN Marks, and its sales, advertising, and promotional efforts under the PELICAN Marks,

the PELICAN Marks have become closely associated with Plaintiff and are recognized favorably

by Plaintiffs relevant consumer demographic, and especially among consumers in the Pacific

Northwest, as an indicator of source for Plaintiffs bar and restaurant services, craft beers, and

related goods. Accordingly, Plaintiff owns valuable goodwill in connection with its PELICAN

Marks.

Defendants Infringing Use of the PELICAN Marks

26. On information and belief, Defendants began temporarily operating a pop-up or

traveling restaurant under the name Pelicans Waiting Room (the Infringing Mark) in

Portland, Oregon during the Summer of 2015.

27. On information and belief, Defendant Pelicans Waiting Room applied for a

Liquor License with the Oregon Liquor Control Commission on or about February 9, 2016, using

the Infringing Mark.

28. Upon information and belief, Defendants are in the process of opening a bar and

restaurant called Pelicans Waiting Room at 2327 NW Kearney Street, Portland, Oregon

97210. On information and belief, Defendants held a soft opening for their bar and restaurant

featuring the Infringing Mark on or about March 19, 2016. On information and belief,

Defendants plan to hold a grand opening for their bar and restaurant featuring the Infringing

Mark on or about March 22, 2016.

29. On information and belief, Defendants have also begun using a circular logo,

with the head of a pelican facing left, and with the pelicans beak extending beyond the circles

perimeter in connection with their bar and restaurant services, as shown below:

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30. On information and belief, Defendants are using (or plan to use) a neon sign to

promote their bar and restaurant services that embodies (or will embody) the Infringing Logo.

On information and belief, Defendants neon pelican sign features (or will feature) a colorful,

cartoonish line drawing of a pelicans head facing left, positioned inside a bold, contrastingly-

colored circle. Defendants neon pelican sign and logo are collectively referred to as the

Infringing Logo.

31. On information and belief, Defendants bar and restaurant features (or will

feature) alcoholic beverages sold using PELICAN-formative marks confusingly similar to

Plaintiffs PELICAN Marks. Those alcoholic beverages are sold alongside seafood, as well as

other food and beverage items commonly offered in a bar and restaurant, all offered and sold

under the Infringing Mark and/or the Infringing Logo.

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32. On or about February 4, 2016, Defendant Kyle Rourke registered the domain

name www.pelicanswaitingroom.comin his capacity as an individual, and not as an

organization. Upon information and belief, Rourke acquired the domain name to promote the

Pelicans Waiting Room bar and restaurant using PELICAN-formative marks confusingly

similar to Plaintiffs PELICAN Marks. The website associated with the

www.pelicanswaitingroom.comdomain name states that it is for Pelicans Waiting Room

located at 2327 Northwest Kearney Street, Northwest District, OR 97210, which is the address of

Defendants bar and restaurant in Portland, Oregon.

33. Defendant No Comply Food Group, LLC is advertising the Pelicans Waiting

Room bar and restaurant using PELICAN-formative marks confusingly similar to Plaintiffs

PELICAN Marks. For example, on the Instagram webpage for nocomplypdx, an entry reads

nocomplypdxPutting the finishing touches on the menu for our Pelicans #popup. Were getting

excited! Email [email protected] for reservations.

#pdxchefs #portlandnw #pdxnow#localfood #portlandisawesome #cheflife

#thisisgoingtobefun #friedchicken #oysters#bubbly #champagneofbeers #nocomply. The

Instagram webpage for noncomplypdx also displays a photograph of a menu for Pelicans

Waiting Room with No Comply water-marked on the page. It also has menu items for an

alcoholic beverage called Pelicans Punch and a menu item for Pelicans Shooter. A copy of

the nocomplypdx Instagram webpage is attached as Exhibit B.

34. On or about March 11, 2016, Plaintiff was contacted by the director of the Oregon

Brewers Guild, who indicated that people in the beer and restaurant industries may be

experiencing and/or may be likely to experience confusion between Plaintiffs PELICAN Marks

and Defendants use of the Infringing Mark.

35. Beginning on or about March 11, 2016, trademark counsel for Plaintiff, Stuart J.

Ford, began contacting Defendants, and later Defendants counsel, via phone to inform them of

Plaintiffs rights in its PELICAN Marks and of Defendants infringement of Plaintiffs rights as a

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result of their use of the Infringing Mark. Despite Plaintiffs requests that Defendants cease and

desist from all further use of the Infringing Mark, Defendants have persisted in their use of the

Infringing Mark, including at the soft opening of their bar and restaurant on March 19, 2016,

notwithstanding their knowledge of Plaintiffs rights in its PELICAN Marks and Plaintiffs

claims that the Infringing Mark infringes the PELICAN Marks.

36. Plaintiff has senior rights in its PELICAN Marks based on its first use of the

marks in commerce in Oregon and in interstate commerce. Having commenced use of its

PELICAN PUB & BREWERY and PELICAN PUB & BREWERY & Design marks for bar and

restaurant services in Oregon in May 1996, and in U.S. commerce in September 1998, Plaintiffs

use of its PELICAN-formative marks for its bar and restaurant services predates Defendants use

of the Infringing Mark and Infringing Logo by more than 19 years.

37. The PELICAN Marks and the Infringing Mark are identical and/or nearly

identical in sight, sound, meaning and commercial impression in that the dominant portion of

both marks is the identical and arbitrary term PELICAN. The other visual and phonetic

differences between the PELICAN Marks and the Infringing Mark are not sufficient to avoid a

likelihood of confusion among consumers. Further, given that the dominant portion of the

PELICAN Marks and the Infringing Mark is the identical and arbitrary term PELICAN,

consumers encountering the parties respective marks in the marketplace are likely to deem the

marks as creating an identical commercial impression.

38. The Infringing Logo is also highly similar in appearance and commercial

impression to the design portion of the PELICAN Marks, as the marks all feature a circular logo

with the head of a pelican facing left, and with the pelicans beak extending beyond the circles

perimeter. As a result, the design portion of the PELICAN Marks and the Infringing Logo look

highly-similar and create the identical commercial impression of a pelican.

39. Plaintiffs and Defendants bar and restaurant services offered under their

respective marks and logos are identical. Further, the coffee, beer, ale and lager, seafood, and

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other items sold under Plaintiffs PELICAN Marks, on information and belief, are identical

and/or closely related to the food and beverage products offered by Defendants at their bar and

restaurant. Accordingly, Plaintiffs goods and services and Defendants goods and services are

identical and/or closely related.

40. Plaintiff and Defendants market, promote, and/or sell their respective goods

and/or services to the same classes of consumers and in overlapping marketing and trade

channels. For example, both Plaintiff and Defendants advertise, market, and promote their bar

and restaurant services directly to prospective customers through their respective social media

pages, https://www.instagram.com/nocomplypdx/(Defendants Instagram page) and

https://www.facebook.com/PelicanBrewery(Plaintiffs Facebook page). Likewise, Plaintiffs

establishments and Defendants bar and restaurant have been featured in similar, Portland-based

industry publications. See Exhibits C & D.

41. Defendants are not authorized licensees of Plaintiff, and Plaintiff has never

authorized or otherwise given Defendants permission to use any form of Plaintiffs PELICAN

Marks.

FIRST CLAIM FOR RELIEF

(Federal Trademark Infringement, 15 U.S.C. 1114(1))

42. Plaintiff incorporates by reference paragraphs 1 through 41 set forth above.

43. The U.S. Patent and Trademark Office has granted Plaintiff federal trademark

registrations for the PELICAN Registered Marks. See Exhibit A. Plaintiff owns the exclusive

trademark rights and privileges in and to the PELICAN Marks. Plaintiff uses the PELICAN

Marks as a designation of source and quality for its goods and services.

44. Defendants have used and are using the Infringing Mark and Infringing Logo in

connection with goods and services in a manner that is likely to confuse, deceive, and cause

mistake among consumers, and therefore infringes Plaintiffs rights in the PELICAN Marks in

violation of 15 U.S.C. 1114.

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45. Plaintiff has no adequate remedy at law for Defendants infringement of the

PELICAN Marks, in that: (i) the PELICAN Marks are unique and valuable property, injury to

which cannot adequately be compensated by monetary damages; (ii) the infringement injures and

threatens to continue to injure Plaintiffs reputation and goodwill; and (iii) the injury resulting to

Plaintiff from Defendants wrongful conduct, and the conduct itself, are continuing, and Plaintiff

would be required to bring a multiplicity of suits to achieve full redress for the injuries caused

thereby.

46. Unless restrained, Defendants infringement of the PELICAN Marks will

continue to cause irreparable injury to Plaintiff, both during the pendency of this action and

thereafter. Plaintiff is therefore entitled to an order from this Court under 15 U.S.C. 1116

preliminarily and permanently enjoining Defendants and their agents, employees, and others

acting in concert with them, from directly or indirectly infringing the PELICAN Marks in any

manner, including by using any mark, design, or logo that is confusingly similar to the

PELICAN Marks in connection with the sale, offer for sale, advertising, and/or promotion of bar

and restaurant services, and related goods.

47. As a direct and proximate result of Defendants conduct, Plaintiff is also entitled

to recover three (3) times its actual damages and the profits wrongfully obtained by Defendants

attributable to the infringement of the PELICAN Marks in an amount to be proven at trial,

pursuant to 15 U.S.C. 1117.

48. Defendants actions in adopting and using the Infringing Mark and Infringing

Logo in connection with bar and restaurant services which are identical to the bar and restaurant

services offered by Plaintiff under its PELICAN Marks give rise to an inference of intentional,

willful, and malicious intent on the part of Defendants to trade on the goodwill associated with

Plaintiffs PELICAN Marks and to cause confusion, to cause mistake, and to deceive the public

about the source or affiliation of Defendants services, especially in light of the fact that Plaintiff

has previously warned Defendants of its infringing conduct. Accordingly, this is an exceptional

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case under 15 U.S.C. 1117 justifying an award of Plaintiffs reasonable attorneys fees and

costs.

SECOND CLAIM FOR RELIEF

(Federal Unfair Competition, 15 U.S.C. 1125(a))


50. Defendants use of the Infringing Mark and Infringing Logo in commerce in

connection with the marketing, promotion, sale, and provision of its bar and restaurant services is

likely to cause confusion, mistake, and deception as to the affiliation, connection, or association

of Defendants with Plaintiff, or vice versa, or as to the origin, sponsorship, or approval of

Defendants bar and restaurant services by Plaintiff, or vice versa. Defendants actions therefore

constitute infringement of Plaintiffs PELICAN Marks in violation of Section 43(a) of the

Lanham Act, 15 U.S.C. 1125(a). Defendants actions misrepresent the nature, characteristics,

qualities, and/or origin of Defendants services and commercial activities in violation of 15

U.S.C. 1125(a).

51. Plaintiff has no adequate remedy at law for the foregoing wrongful conduct of

Defendants, in that: (i) Defendants actions injure and threaten to continue to injure Plaintiffs

unique and valuable property, injury to which cannot adequately be compensated by monetary

damages; (ii) the wrongful acts of Defendants injure and threaten to continue to injure Plaintiff's

reputation and goodwill; and (iii) the injury resulting to Plaintiff from Defendants wrongful

conduct, and the conduct itself, are continuing, and Plaintiff would be required to bring a

multiplicity of suits to achieve full compensation for the injuries caused thereby.

52. Unless restrained, the foregoing wrongful acts of Defendants will continue to

cause irreparable injury to Plaintiff, both during the pendency of this action and thereafter.

Plaintiff is therefore entitled to an order from this Court under 15 U.S.C. 1116 preliminarily

and permanently enjoining Defendant and their agents, employees, and others acting in concert

with them, from directly or indirectly: (i) selling, offering for sale, advertising, promoting or

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providing any product or service that tends to relate or connect such product or service in any

way to Plaintiff or to any goods or services offered, provided, sold, manufactured, sponsored,

approved by or connected with Plaintiff; or (ii) making any false description or representation of

origin concerning any goods or services offered for sale by Defendants.

53. As a direct and proximate result of Defendants conduct, Plaintiff is also entitled

to recover three (3) times its actual damages and the profits wrongfully obtained by Defendants

attributable to the infringement in an amount to be proven at trial, pursuant to 15 U.S.C. 1117.


Logo in connection with bar and restaurant services that are identical or nearly identical to the

bar and restaurant services offered by Plaintiff under its PELICAN Marks give rise to an

inference of intentional, willful and malicious intent on the part of Defendants to trade on the

goodwill associated with Plaintiffs PELICAN Marks and to cause confusion, to cause mistake,

and to deceive the public about the source or affiliation of Defendants services, especially in

light of the fact that Plaintiff has previously warned Defendants of its infringing conduct.

Accordingly, this is an exceptional case under 15 U.S.C. 1117 justifying an award of Plaintiffs

reasonable attorneys fees and costs.

THIRD CLAIM FOR RELIEF

(Common Law Trademark Infringement and Unfair Competition)


56. Defendants are using the Infringing Mark and Infringing Logo in a manner that is

likely to cause confusion, to cause mistake, and to deceive consumers, industry experts, and the

public at large as to the affiliation, connection, or association of Defendants with Plaintiff, or

vice versa, or as to the origin, sponsorship, or approval of Defendants bar and restaurant

services by Plaintiff, or vice versa.

57. Defendants acts constitute common law trademark infringement and unfair

competition and have created and will continue to create a likelihood of confusion, thereby

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causing irreparable harm to Plaintiff, including without limitation, injury to its reputation and

business identity, resulting in lost revenue and profits and diminished goodwill and reputation.

Plaintiff has no adequate remedy at law for this injury.


Logo in connection with bar and restaurant services which are identical to the bar and restaurant

services offered by Plaintiff under its PELICAN Marks give rise to an inference of intentional,

willful and malicious intent on the part of Defendants to trade on the goodwill associated with

Plaintiffs PELICAN Marks and to cause confusion, to cause mistake, and to deceive the public

about the source or affiliation of Defendants services, especially in light of the fact that Plaintiff

has previously warned Defendants of its infringing conduct. Accordingly, this is an exceptional

case under 15 U.S.C. 1117 justifying an award of Plaintiffs reasonable attorneys fees and

costs.

59. As a result of Defendants acts, Plaintiff has been damaged in an amount not yet

determined or ascertainable. At a minimum, Plaintiff is entitled to injunctive relief, to an

accounting of Defendants profits, actual damages, punitive damages, and its costs.

JURY DEMAND

60. Pursuant to Fed. R. Civ. P. 38(b), Plaintiff hereby demands a trial by jury of all

issues so triable that are raised herein or which hereinafter may be raised in this action.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants as follows:

1. That Defendants, their officers, directors, agents, servants, affiliates, employees,

successors, assigns, parent and subsidiary companies, and representatives, and all those acting in

privity or in concert or participation with Defendants, be preliminarily and permanently enjoined

and restrained from directly or indirectly:

a. Affixing, applying, annexing, or using in connection with the advertising,

promotion, sale, or offering of bar or restaurant services, and/or related goods, the Infringing

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Mark, the Infringing Logo, any mark consisting of or including the term PELICAN, any mark

consisting of or including the image of a pelican, any mark confusingly similar to Plaintiffs

PELICAN Marks, or any other marks that might tend to falsely describe or represent such goods

or services as being those of Plaintiff;

b. Performing any actions or using any trademarks, service marks, or other

words, names, titles, designs, or logos that are likely to cause confusion, to cause mistake, to

deceive, or to otherwise mislead the trade or public into believing that Defendants bar and

restaurant services are sponsored by, affiliated with, or in any way connected to Plaintiff and/or

vice versa;

c. Using any trademarks, service marks, or other words, names, titles,

designs, or logos or engaging in any other conduct that creates a likelihood of injury to the

business reputation of Plaintiff or a likelihood of misappropriating Plaintiffs distinctive

trademarks and the goodwill associated therewith;

d. Further infringing Plaintiffs PELICAN Marks, and/or damaging

Plaintiffs goodwill; and

e. Engaging in any business practices, including those complained of herein,

which unfairly compete with or injure Plaintiff, its business, or the goodwill appertaining thereto.

2. An award of compensatory damages, including consequential, and incidental

damages, in favor of Plaintiff and against Defendants in an amount to be proven at trial.

3. An award of enhanced damages or lost profits, whichever is proven to be greater,

in favor of Plaintiff and against Defendants, pursuant to 15 U.S.C. 1117, Oregon State common

law, and as otherwise provided by law.

4. An accounting and award to Plaintiff and against Defendants of all Defendants

profits, gains, or unjust enrichment in an amount to be proven at trial.

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Telephone: 503.222.9981Fax: 503.796.2900

5. An accounting of all of Defendants receipts and disbursements, profit and loss

statements, and other financial materials, statements, and books relating to Defendants

marketing, distribution, sale, and provision of its bar and restaurant services.

6. An award of Plaintiffs litigation expenses, including reasonable attorneys fees

and costs, pursuant to 15 U.S.C. 1117.

7. An award of pre- and post-judgment interest at the maximum rate allowed by law.

8. That Defendants be directed to file with the Court and serve upon Plaintiff within

thirty (30) days after the issuance of any injunction a written report, under oath, setting forth in

detail the manner and form in which Defendants have complied with the injunction

9. That the Court grants Plaintiff such other relief as it deems just and proper.

DATED: March 22, 2016

Respectfully submitted,

SCHWABE, WILLIAMSON & WYATT, P.C.

By: /s/ Michael A. Cohen __________________

Michael A. Cohen, OSB #965776

Email: [email protected] (Nika) F. Aldrich, Jr., OSB

#160306Email: [email protected]

Alexandra J. Bodnar, OSB #133058

Email: [email protected]

SCHWABE, WILLIAMSON & WYATT,P.C.

1211 SW 5th Ave., Suite 1900

Portland, OR 97204Telephone: 503.222.9981

Facsimile: 503.796.2900

Attorneys for Plaintiff Pelican Brewing

Company

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Pelican Brewing Company Complaint

Documents

Transcript of Pelican Brewing Company Complaint