Starbucks v. Obsidian Group - Freddoccino.pdf

7/25/2019 Starbucks v. Obsidian Group - Freddoccino.pdf

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Julia Huston ([email protected])Natasha N. Reed ([email protected])Jenevieve J. Maerker ([email protected])FOLEY HOAG LLP1540 Broadway, 23rd Floor

New York, New York 10036Tel: (646) 927-5500; Fax (646) 927-5599Attorneys for Plaintiff

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF NEW YORK

------------------------------------------------------------x :STARBUCKS CORPORATION d/b/a :STARBUCKS COFFEE COMPANY, :

:Plaintiff, : Civil Action No.

:v. : COMPLAINT

:OBSIDIAN GROUP, INC., :

:Defendant. :

------------------------------------------------------------x

Plaintiff Starbucks Corporation d/b/a Starbucks Coffee Company (Starbucks), for its

Complaint against Obsidian Group, Inc. (Obsidian or Defendant), alleges, on knowledge as

to itself and otherwise on information and belief, as follows:

NATURE OF THE ACTION

1. Starbucks is a purveyor of high-quality coffee and other beverages. Starbucks

FRAPPUCCINObrand of blended frozen beverages is famous throughout the United States.

2. Starbucks recently learned that defendant Obsidian Group, Inc. has been selling

blended frozen beverages at its Coffee Culture cafs under the name FREDDOCCINO.

Case 1:16-cv-00029 Document 1 Filed 01/11/16 Page 1 of 21


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3. Obsidians conduct is diluting the distinctive quality of Starbucks famous

FRAPPUCCINOmark and is likely to confuse consumers into believing that Obsidians

products are affiliated with, or are endorsed or approved by, Starbucks, when in fact they are not.

4. In addition, Obsidian displays its FREDDOCCINO mark with the registered

trademark symbol, , although it owns no U.S. registrations for FREDDOCCINO. Obsidian

also presents its Coffee Culture cafs as Fair Trade Certified, although, on information and

belief, they do not offer any Fair Trade Certified coffees.

5. Obsidians unlawful actions are causing immediate and irreparable harm to

Starbucks, as well as harming consumers of frozen blended beverages in New York State and

elsewhere. To redress the harm being done to Starbucks and the public, Starbucks brings claims

for federal trademark dilution under the Trademark Dilution Revision Act of 2006, 15 U.S.C.

1125(c); infringement of federally registered trademarks under Section 32(l) of the United

States Trademark (Lanham) Act of 1946, as amended (the Lanham Act), 15 U.S.C. 1114(l);

trademark infringement, unfair competition, and false advertising under Section 43(a) of the

Lanham Act, 15 U.S.C. 1125(a); and related claims under New York statutory and common

law.

THE PARTIES

6. Plaintiff Starbucks is a Washington corporation with its principal office at 2401

Utah Avenue South, Seattle, Washington 98134.

7. On information and belief, defendant Obsidian is a Canadian corporation with a

usual place of business at 1770 Argentia Road, Mississauga, Ontario, L5N 3S7.

JURISDICTION AND VENUE

8. This Court has personal jurisdiction over Obsidian because, inter alia, Obsidian

regularly conducts business in New York through Coffee Culture caf locations in Tonawanda,



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Cheektowaga, Batavia, Springville, Ellicottville, and Greece, New York, and has offered and

sold its infringing FREDDOCCINO products in New York. Obsidians actions have caused

injury to Starbucks and to consumers in New York.

9. This action arises under the Lanham Act, 15 U.S.C. 1125(c), 1114(1), and

1125(a), New York General Business Law 349, New York General Business Law 350, New

York General Business Law 360-l, and New York common law. This Court has jurisdiction

over the subject matter of this action pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1331 and

1338. This Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C.

1367. In addition, because there is diversity of citizenship between the parties to this action

and the matter in controversy exceeds $75,000, the Court has jurisdiction pursuant to 28 U.S.C.

1332.

10. Venue is proper in this district pursuant to 28 U.S.C. 1391 because a substantial

part of the events giving rise to plaintiffs claims occurred in this District.

FACTS

The Starbucks Coffee Business and the Famous FRAPPUCCINOMark

11. Starbucks is a leading purveyor of fine Arabica coffee. The company, which

began in 1971, has grown from a single location to approximately 12,000 retail locations in the

United States, including approximately 600 locations in the State of New York, and more than

8,000 locations in over 60 foreign countries. Starbucks retail stores serve brewed coffee,

espresso-based beverages, teas, blended beverages, soft drinks, and other foods and beverages,

and carry packaged coffee, coffee equipment, mugs, and other Starbucks-branded merchandise.

These stores conducted billions of transactions in 2015.

12. Starbucks has developed a strong reputation for fresh-roasted specialty coffees,

brewed coffees, espresso beverages, and other products and has earned worldwide success as a



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result of its knowledgeable and well-trained staff, its excellent service, and the consistency of its

coffee experience for consumers.

13. In addition to offering high-quality products and services, Starbucks is committed

to ethical sourcing for its coffee. Starbucks adheres to the Coffee and Farmer Equity

(C.A.F.E.) Practices program for the ethical sourcing of its coffee, developed in collaboration

with Conservation International. This program sets forth standards in the following four

areas: product quality, economic accountability, social responsibility, and environmental

leadership. 99% of the coffee sourced by Starbucks meets C.A.F.E. Practices standards, and

Starbucks aims to close that last 1%.

14. Starbucks is one of the worlds largest purchasers of coffees certified under the

standards set by Fairtrade Labelling Organizations International (FLO). Specifically, in the

fiscal year that ended September 27, 2015, Starbucks purchased over 45 million pounds of green

(unroasted) coffee beans certified under FLO standards. Some of Starbucks coffee blends,

including its Italian Roast and Caf Estima Blend, are composed exclusively of beans certified as

meeting FLO sourcing standards, and are therefore labeled as Fairtrade certified.

15. Since 1991, Starbucks and its predecessor-in-interest have used the

FRAPPUCCINO

mark in connection with coffee and other beverages. As documented in

Exhibit A, Starbucks owns numerous registrations issued by the U.S. Patent and Trademark

Office for the mark FRAPPUCCINO

, including the following:

Reg. No. Mark Goods and Services

1,745,953 FRAPPUCCINO Coffee beverages for consumption on or off the premises



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Reg. No. Mark Goods and Services

2,148,066 FRAPPUCCINO Milk, flavored milk, milk-based food beverages

Non-carbonated soft drinks

3,080,371 FRAPPUCCINO Restaurant, cafe, cafeteria, snack bar, coffee bar and coffeehouse services.

3,535,367 FRAPPUCCINO Coffee, tea, cocoa and espresso beverages, and beveragesmade with a base of coffee, tea, cocoa and/or espresso, ready-to-drink coffee, ice cream, milkshakes and frozen confections

Registration Nos. 1,745,953, 2,148,066, 3,080,371 and 3,535,367 are valid and subsisting and

incontestable under 15 U.S.C. 1065 and are therefore conclusive evidence of the rights of

Starbucks to the FRAPPUCCINO

mark covered by those registrations.

16. Starbucks owns the only FR-----CCINO marks currently registered by the U.S.

Patent and Trademark Office.

17. FRAPPUCCINOis a coined mark, invented by Starbucks predecessor as a

portmanteau of the wordsfrappe(meaning milkshake, derived from the French word frapp)

andcappuccino.

18. Starbucksstores sell frozen blended beverages,inter alia, under the

FRAPPUCCINO

mark. Blends of espresso, milk, and ice constitute the core of the

FRAPPUCCINOline, but consumers may also order non-dairy options, and non-coffee options,

such as tea-based, fruit-based, and crme-based beverages. FRAPPUCCINObeverages are

available in a variety of flavors and can be topped with whipped cream and flavored sauces and

syrups.

19. In the fiscal year that ended September 27, 2015, U.S. Starbucksstores had more

than $1.5 billion in sales of FRAPPUCCINO

handcrafted blended beverages.



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20. In 1996, the North American Coffee Partnership, formed between Starbucks and

Pepsico, began selling FRAPPUCCINOready-to-drink bottled chilled coffee drinks, available

in Starbucksstores, leading grocery stores, and other retail stores throughout the United States.

The FRAPPUCCINOready-to-drink bottled chilled coffee drinks achieved U.S. sales

exceeding $1 billion in the fiscal year ending September 27, 2015.

21. Starbucks retail locations prominently display the FRAPPUCCINOmark on

signage and menus in connection with coffee and other blended frozen beverage products.

Promotion of the FRAPPUCCINO

brand occurs outside retail stores in print and mass transit

advertisements as well as through digital marketing, among other channels. U.S. marketing and

advertising expenditures for the FRAPPUCCINOline of products exceeded $10 million for the

fiscal year that ended September 27, 2015.

22. The FRAPPUCCINObrand has earned a highly devoted consumer base and

large following, and has attracted considerable media attention. Over 11 million people like

the Starbucks Frappuccino Facebook page and over 196,000 people follow the @Frappuccino

Twitter account. FRAPPUCCINOblended beverages appeared in the moviesZoolander,

Austin Powers, andAustin Powers: The Spy Who Shagged Me. Numerous news outlets,

including Wall Street Journal,Los Angeles Times, ABC, CBS, Fox News, MSNBC, NBC, and

NPR have covered FRAPPUCCINO blended beverages, resulting in billions upon billions of

media impressions. The October 2015 FRAPPUCCINOpromotion with professional athlete

Marshawn Lynch generated 392 million media impressions over the four-day period of October

20 to 23, 2015, across media outlets ranging from Sports Illustrated toTime.



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23. As a result of the extensive and prominent use described above, the

FRAPPUCCINOmark is well known and has become famous, and was famous prior to any of

Defendants complained-of activities.

Starbucks Licensing of the FRAPPUCCINOMark

24. Outside of Starbucks

stores operated either directly by Starbucks or by its

licensees, customers can enjoy FRAPPUCCINOblended beverages at select third-party

foodservice accounts. These licensed foodservice accounts enable Starbucks to provide products

through catering services, retail stores, and other locations.

25. To distinguish a foodservice account from a Starbucks store, Starbucks

foodservice accounts use the We Proudly Serve Starbucks legend and logo shown below:

The We Proudly Serve marks serve to communicate to consumers that the account, not

Starbucks, is preparing and serving the beverage. Starbucks closely tracks use of this

designation, and authorized foodservice accounts must use non-Starbucks branding as their

principal branding. Starbucks provides some marketing materials, such as counter display cards,

for use by foodservice accounts. All other marketing materials must come to Starbucks for

review and approval before the foodservice accounts may use them.

26. Starbucks is highly selective in choosing which foodservice accounts it will

authorize. When assessing a potential foodservice account, Starbucks takes many qualitative

factors into account, including geography, proximity to other Starbucks locations or accounts,

the reputation of affiliated and neighboring businesses, and the appropriateness of the location

for the premium brand image that Starbucks has cultivated.



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27. Foodservice accounts may serve a number of products, including brewed coffee,

espresso-based beverages, hot cocoa, and FRAPPUCCINOblended beverages. Starbucks

provides accounts with the roasted coffee beans, cocoa powder, and sauces and syrups necessary

to make these beverages. Starbucks also provides accounts with storage, serving, cleaning, and

preparation supplies and labels and marketing. Finally, foodservice accounts may also be

eligible to purchase and use branded signage, aprons, cups, napkins, marketing materials, and the

like.

28. Authorized foodservice accounts undergo rigorous training and are subject to

strict quality control standards. They are contractually required to use recipes and preparation

processes supplied by Starbucks. To control the quality of the beverages produced by

foodservice accounts, Starbucks has set numerous coffee standards, approves the type of

machines that can be used to produce beverages, allows only authorized representatives or agents

to calibrate machines, and engages in other activities to ensure that a foodservice account

beverage is consistent in quality and taste with a Starbucks retail outlet operated by Starbucks.

29. Starbucks has the right to cancel any foodservice account that fails to adhere to

Starbucks quality and brand guidelines.

30. As a result of Starbucks licensing to foodservice accounts, consumers are

accustomed to encountering genuine Starbucks FRAPPUCCINObeverages at stores with non-

Starbucks principal branding.

Obsidian and Its Unlawful Activities

31. Obsidian operates a chain of coffee shops known as Coffee Culture Caf & Eatery

(Coffee Culture). On information and belief, Obsidian operates some Coffee Culture shops

itself but uses a franchise model for most locations.



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32. The majority of Coffee Culture locations are in Canada, but there are several

Coffee Culture cafs in the United States, including in Tonawanda, New York; Cheektowaga,

New York; Batavia, New York; Springville, New York; Ellicottville, New York; Greece, New

York; Erie, Pennsylvania; Orlando, Florida; Clearwater Beach, Florida; and Jupiter, Florida.

Obsidian has announced its intention to open Coffee Culture locations soon in Naples, Florida

and Miami, Florida.

33. Starbucks has recently learned that the U.S. Coffee Culture locations have been

offering a line of frozen coffee beverages under the name FREDDOCCINO. Obsidians

FREDDOCCINO beverages, like Starbucks FRAPPUCCINO

beverages, come in a variety of

flavors and are available with whipped cream and flavored syrup toppings.

34. On information and belief, the FREDDOCCINO mark is a portmanteau of the

Italian wordfreddo (meaning cold) and cappuccino.

35. The FREDDOCCINO mark is similar to Starbucks famous FRAPPUCCINO

mark in appearance, sound, and connotation: both begin with FR, contain four syllables, end

with CCINO, and evoke a European-inspired cold coffee beverage.

36. In addition to the confusingly similar FREDDOCCINO name, Obsidian further

calls to mind Starbucks FRAPPUCCINO

beverages through the similar appearance of its

FREDDOCCINO beverages and the cups in which they are served:



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Starbucks FRAPPUCCINObeverage Defendants FREDDOCCINO beverages

37. Upon information and belief, the quality of Obsidians FREDDOCCINO

beverages is materially different than the quality Starbucks customers have come to expect when

ordering a Starbucks FRAPPUCCINO

beverage.

38. Obsidian displays the registered trademark symbol, , with its FREDDOCCINO

mark, both on its Coffee Culture website (www.coffeeculturecafe.com) and in at least some of its

U.S. Coffee Culture stores, although it does not own any United States trademark registrations

for the mark FREDDOCCINO.

39. Upon information and belief, Obsidian has altered the menu boards in some, but

not all, of the U.S. Coffee Culture stores, so that the frozen blended beverages are now called

FREDDOS. However, even in those stores that have adopted the name FREDDOS in

connection with the frozen blended beverages, the cups in which those drinks are served

continue to bear the FREDDOCCINO mark, and employees have referred to the drinks as

FREDDOCCINO and have recognized the name FREDDOCCINO when customers order it.

Meanwhile, the FREDDOCCINO mark (with the symbol) still appears on the menus in other

U.S. Coffee Culture stores, and on the Coffee Culture website.



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40. Obsidian displays signage in certain of its U.S. Coffee Culture stores indicating

that Coffee Cultures goods and services are certified as meeting the Fair Trade Certified

sourcing standards set by Fair Trade USA. Obsidian also asserts on the Coffee Culture website

that Coffee Culture stores offer fair trade . . . coffee. On information and belief, Coffee

Culture stores do not offer any Fair Trade Certified coffees, but only offer only a limited range of

Fair Trade Certified teas.

Starbucks and Consumers are Being Harmed by Obsidians Actions

41. The similarity between the FRAPPUCCINOand FREDDOCCINO marks in

appearance, sound, and connotation diminishes the capacity of Starbucks famous

FRAPPUCCINO

mark to uniquely identify Starbucks line of frozen blended beverages.

42. Upon information and belief, Obsidians use of the FREDDOCCINO mark is

causing confusion in the marketplace and will continue to do so, thereby harming consumers and

diminishing Starbucks brand equity.

43. Upon information and belief, a consumer purchasing a FREDDOCCINO

beverage might mistakenly believe that he or she was purchasing a product of the same quality as

Starbucks FRAPPUCCINObeverages, or a product containing Fair Trade Certified coffee, or a

product whose name was protected by a United States trademark registration.

44. Upon information and belief, as a result of Obsidians actions, consumers seeking

beverage products of the quality indicated by the FRAPPUCCINOmark, by ethical sourcing

certifications, or by a trademark registration are likely to be diverted from Starbucks to its

competitor, Obsidian, and are likely to be misled about the nature, characteristics, quality, or

source of Obsidians products.



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FIRST CLAIM FOR RELIEF

Federal Trademark Dilution Under 15 U.S.C. 1125(c)

45. Starbucks realleges and incorporates herein the allegations set forth in the

foregoing paragraphs of this Complaint.

46. Starbucks possesses valid and enforceable rights in the FRAPPUCCINO

mark in

connection with all of the goods and services at issue in this case by virtue of its extensive use,

registration, promotion, and advertisement of the FRAPPUCCINO

mark, and has possessed

such rights at all times material hereto.

47. By virtue of its extensive use, registration, advertising, promotion, and consumer

and marketplace recognition, the FRAPPUCCINO

mark is famous and distinctive, and is

entitled to protection against likely dilution by blurring and by tarnishment.

48. Obsidian commenced the activities complained of herein after the

FRAPPUCCINOmark had become famous.

49. Upon information and belief, Obsidians conduct is willful, deliberate, in bad

faith, and undertaken with knowledge of Starbucks prior rights, and with full knowledge that

Obsidian has no right, license, or authority to use Starbucks registered trademark or any

confusingly similar variant thereof, including FREDDOCCINO.

50. Starbucks has been, is now, and will be irreparably injured and damaged by

Obsidians conduct as described above, as a result of the likely dilution of Starbucks famous

FRAPPUCCINOmark, and unless such conduct is enjoined by the Court, Starbucks will suffer

further harm to its registered trademark, reputation, and goodwill. This harm constitutes an

injury for which Starbucks has no adequate remedy at law.



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SECOND CLAIM FOR RELIEF

Infringement of Registered Trademark Under 15 U.S.C. 1114(1)



52. Obsidians unauthorized use of the FREDDOCCINO mark in connection with

frozen blended beverages constitutes a use in commerce of a reproduction, counterfeit, copy, or

colorable imitation of the trademark identified in U.S. Trademark Registration Nos. 1,745,953,

2,148,066, 3,080,371,and 3,535,367 that is likely to cause confusion, or to cause mistake, or to

deceive.



Obsidian has no right, license, or authority to use Starbucks registered trademark or any


54. Obsidians acts are intended to reap the benefit of the goodwill that Starbucks has

built up in its FRAPPUCCINOmark and constitute infringement of Starbucks federally

registered trademark in violation of Section 32(l) of the Lanham Act, 15 U.S.C. 1114(l).


Obsidians conduct as described above, and unless such conduct is enjoined by the Court,

Starbucks will suffer further harm to its registered trademark, reputation, and goodwill. This

harm constitutes an injury for which Starbucks has no adequate remedy at law.

THIRD CLAIM FOR RELIEF

Trademark Infringement, Unfair Competition, and False Designation of Origin Under 15

U.S.C. 1125(a)





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57. Obsidians unauthorized use of the FREDDOCCINO mark constitutes a use in

commerce of a word, term, name, symbol, or device, or some combination thereof, or a false

designation of origin, false or misleading description of fact, or false or misleading

representation of fact, which is likely to cause confusion or mistake, or to deceive as to the

affiliation, connection, or association among and between the parties and their respective

services, or confusion or mistake as to the origin, sponsorship, or approval among and between

the parties and their respective services.



Obsidian has no right, license, or authority to use Starbucks FRAPPUCCINOmark or any


59. Obsidians acts are intended to reap the benefit of the goodwill that Starbucks has

built up in its FRAPPUCCINO

mark and constitute infringement of Starbucks trademark,

unfair competition, and false designation of origin in violation of Section 43(a) of the Lanham

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



Starbucks will suffer further harm to its trademark, reputation, and goodwill. This harm

constitutes an injury for which Starbucks has no adequate remedy at law.

FOURTH CLAIM FOR RELIEF

False Advertising Under 15 U.S.C. 1125(a)





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62. Obsidians use of the registered trademark symbol, , in connection with its

FREDDOCCINO mark, Obsidians use of Fair Trade Certified signage in its U.S. Coffee

Culture stores, and Obsidians online claim to offer fair trade . . . coffee constitute use in

commerce of a word, term, name, symbol, or device, or some combination thereof, or a false or

misleading description of fact, or a false or misleading representation of fact, in commercial

advertising or promotion, that misrepresents the nature, characteristics, qualities, or geographic

origin of Obsidians goods, services, or commercial activities. Upon information and belief,

Obsidians actions misrepresent the nature, quality, characteristics, and/or source of its goods to

consumers, and are material to, and likely to influence, consumers purchasing decisions.


faith, and undertaken with knowledge that Obsidians FREDDOCCINO mark is not registered in

the United States and that Coffee Culture does not offer Fair Trade Certified coffees in all of its

stores bearing the Fair Trade Certified signage.

64. Obsidians acts constitute false or misleading descriptions of fact or false or

misleading representations of fact in violation of Section 43(a) of the Lanham Act, 15 U.S.C.

1125(a).

65. Starbucks is a direct competitor of Obsidian. Upon information and belief,

Obsidians misrepresentations described above are likely to mislead consumers about the nature,

quality, characteristics, and/or source of its products and divert customers from Starbucks to

Obsidian. Starbucks has been, is now, and will be irreparably injured and damaged by


Starbucks will suffer further harm. This harm constitutes an injury for which Starbucks has no

adequate remedy at law.



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FIFTH CLAIM FOR RELIEF

Trademark Dilution Under New York General Business Law 360-1



67. The FRAPPUCCINO

mark is inherently distinctive and, as a result of extensive

promotion and use over many years, the FRAPPUCCINOmark has become well-known to

consumers in the State of New York as exclusively associated with Starbucks and as a singular

designation of the source of Starbucks goods.

68. Obsidians conduct alleged herein is diluting, blurring, and/or tarnishing the

distinctive qualities of Starbucks FRAPPUCCINOmark in violation of Section 360-l of the

General Business Law of the State of New York.





SIXTH CLAIM FOR RELIEF

Common Law Trademark Infringement and Unfair Competition



71. Obsidians aforesaid conduct constitutes common law trademark infringement

and unfair competition under the common law of the State of New York.







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SEVENTH CLAIM FOR RELIEF

Deceptive Business Practices Under New York General Business Law 349



74. By using the registered trademark symbol, , with its FREDDOCCINO mark,

displaying Fair Trade Certified signage in its U.S. Coffee Culture stores, including stores

located in the State of New York, and claiming on its website to offer fair trade . . . coffee,

Obsidian has engaged in activities that deceive or have a tendency to deceive a material segment

of the public to which Obsidian has directed its marketing activities. Upon information and

belief, Obsidians actions misrepresent the nature, quality, characteristics, and/or source of its

goods to consumers, and are material to, and likely to influence, consumers purchasing

decisions.

75. Upon information and belief, through such deceptive acts, Obsidian has engaged

in consumer-oriented conduct that has affected the public interest of New York and has resulted

in injury to consumers and harm to the public in the State of New York.

76. Upon information and belief, Obsidians conduct is willful and undertaken with

knowledge that Obsidians FREDDOCCINO mark is not registered in the United States and that

Coffee Culture does not offer Fair Trade Certified coffees in its stores located in the State of

New York.

77. By virtue of the foregoing, Obsidian has engaged in deceptive acts or practices in

the conduct of its business in violation of Section 349 of the General Business Law of the State

of New York.





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Obsidian. Obsidians conduct has caused and is causing irreparable injury to Starbucks and,

unless enjoined by the Court, will continue both to damage Starbucks and to deceive the public.

This harm constitutes an injury for which Starbucks has no adequate remedy at law.

EIGHTH CLAIM FOR RELIEF

False Advertising Under New York General Business Law 350



80. Obsidians use of the registered trademark symbol, , in connection with its

FREDDOCCINO mark, Obsidians use of Fair Trade Certified signage in its U.S. Coffee

Culture stores, including stores located in the State of New York, and Obsidians online claim to

offer fair trade . . . coffee constitute advertising that is misleading in a material respect. Upon

information and belief, Obsidians actions misrepresent the quality, characteristics, and/or source

of its goods, and are material to, and likely to influence, consumers purchasing decisions.

81. Upon information and belief, through such false advertising, Obsidian has

engaged in consumer-oriented conduct that has affected the public interest of New York and has

resulted in injury to consumers and harm to the public in the State of New York.


faith, and undertaken with knowledge that Obsidians FREDDOCCINO mark is not registered in

the United States and that Coffee Culture does not offer Fair Trade Certified coffees in its stores

located in the State of New York.

83. By virtue of the foregoing, Obsidian has engaged in false advertising in the

conduct of its business in violation of Section 350 of the General Business Law of the State of

New York.



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Obsidian. Obsidians conduct has caused and is causing irreparable injury to Starbucks and,

unless enjoined by the Court, will continue both to damage Starbucks and to deceive the public.

This harm constitutes an injury for which Starbucks has no adequate remedy at law.

WHEREFORE, Plaintiff Starbucks Corporation d/b/a Starbucks Coffee Company

demands judgment as follows:

1. Enter judgment in favor of Starbucks on all counts;

2. Enter a preliminary and permanent injunction restraining Obsidian and its

officers, directors, employees, agents, affiliates, successors, assigns, franchisees, licensees, and

all those in privity or acting in concert with them:

a. From in any way diluting, using, displaying, advertising, copying,imitating, or infringing upon the FRAPPUCCINOmark, including byusing the FREDDOCCINO mark;

b. From using or displaying the FRAPPUCCINOmark or confusinglysimilar variations thereof, including without limitation theFREDDOCCINO mark, on or in connection with any products or in anywritten, oral, or audiovisual advertisements, displays, signs, salespromotions, the Internet, or in any other public communication inconnection with Obsidians goods or services;

c. From otherwise diluting or infringing upon Starbucks FRAPPUCCINOmark;

d. From using the registered trademark symbol, , in connection with the

FREDDOCCINO mark;

e. From using Fair Trade Certified signage or otherwise claiming that itoffers Fair Trade Certified products in its Coffee Culture cafs; and

f. From otherwise unfairly competing with Starbucks;



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3. Order that Obsidian account and pay over to Starbucks all gains, profits, and

advantages derived from the conduct alleged herein, pursuant to 15 U.S.C. 1117 and other

applicable law;

4. Order that Obsidian pay Starbucks the damages that Starbucks has sustained by

reason of the conduct alleged herein;

5. Order that Obsidian pay Starbucks enhanced damages as provided by 15 U.S.C.

1117 and other applicable law;

6. Order that Obsidian pay pre-judgment interest on Starbucks damages as provided

by 15 U.S.C. 1117 and other applicable law;

7. Order that Obsidian pay the costs of this action as provided by 15 U.S.C. 1117

and other applicable law;

8. Order that Obsidian pay Starbucks attorneys fees as provided by 15 U.S.C.

1117 and other applicable law; and

9. Grant such other and further relief as is just and proper.



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