8/10/2019 Kliot v. Mike's Hard Lemonade complaint.pdf

1/8

JS44C/SDNY

REV.

4/2014

PLAINTIFFS

RONALD

KLIOT

JUDGE

CASE

CIVIL

COVER

The JS-44 civil

cover sheet

and (he information contained I

pleadings orotherpapersas

required

by

law,

except as pre

Judicial

Conference of the

tinted

Stales InSeptember 197

Initiating tne civildocket sheet.

i required

DEFENDANTS

MARK ANTHONY INTERNATIONAL SRL

ATTORNEYS (FIRM

NAME.

ADDRESS. AND TELEPHONE

NUMBER

ChristianJ. Jensen. Esq. c/0 OlenderFeldman LLP

42 2

Morris

Avenue

Summit, New

Jersey

07901

ATTORNEYS

(IF

KNOWN)

DavW

H.Bernstein. Esq., c/0 Debevoise PlimptonLLP

919

3r d

Avenue

New York,

New

York 10022

CAUSE

OF ACTION

CITE

THE U.S.

CIVIL

STATUTE UNDER WHICH

YOU

ARE FILING

AND

WRITE A

BRIEF

STATEMENT OF CAUSE}

DO NOTCrTE

JURISDICTIONAL

STATUTESUNLESS

DIVERSITY

Dedaratory judgment underTrademark Uws

of

the

U.S.. 15USC Sec.1051. et seq.,

15

USC

Sec.1225.

et

seq., and

28

USC Sec.2201.220:

Has this action, case,

or proceeding,

or one

essentially the

same

been

previously

filed

In SDNY at any time? Nd2jVesQjudge Previously

Assigned

Ifyes. was this case Vol, Invol. Dismissed, No Q Yes lfves'S^e Cast No-

No 0 Yes n

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SUIT

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LIABILITY

[ 1360

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[1110

I ]129

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NEGOTIABLE

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DEFAULTED

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LOANS

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SUITS

OTHER

CONTRACT

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(

)423

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| ]36 PROPERTY DAMAGE

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LIABILITY

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SECURITY AC T

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[ 14S2 NATURALIZATION

APPLICATION

[

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CONDITIONS OF CONFINEMENT

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RIGHTS

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8/10/2019 Kliot v. Mike's Hard Lemonade complaint.pdf

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fPWCe/WxWOWEBCWONlW ORIGIN

SHCW D2

Ramovedtrom

Oj h a L_

Yr. > __)

RECEIPT* C ^ y^ Attorney BarCode

4515961

Magistrate Judge is to be designated by the Clerkof the

Magistrate Judge

Ruby J. Krajick. Clerk of Court

by.

Deputy Clerk, DATED,

UNITED

STATES DISTRICTCOURT (NEWYORKSOUTHERN)

is so Designated.

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GE.W

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF

NEW YORK

14 CV 8592

RONALD

KLIOT,

Civi l Act ion No.:

>

f

Plaintiff, tn o

,-,

en __

-against-

COMPLAINTS i r

~n

o

P

MARK ANTHONY INTERNATIONAL SRL, g o

Defendant .

x

COMPLAINT FOR DECLARATORY JUDGMENT

Plaintiff Ronald Kliot ( Kliot or Plaintiff) by way

of

this Complaint for Declaratory

Judgment against defendant MarkAnthonyInternational SRL( Defendant ).

NATURE

O F

ACT ION

1. Plaintiff seeks a declaratory judgment of non-infringement of trademark rights

against Defendant, and a declaratory judgment that any alleged trademark or trade dress rights

assertedbyDefendant withrespect to Plaintiffs registered trademark is invalidand unenforceable.

T H E P AR TIE S

2. Plaintiffis an individual residing in Cedarhurst, New York and is the owner

of

the

registeredtrademark HARD, RegistrationNo. 3,613,372(the Mark ).

3. Defendant asserts that it is a corporation organized and existing under the laws of

Barbados with its principal place of business at Rendezvous Main Road, Worthing BB15006,

Christ Church, Barbados,

West

Indies.

JURISD ICT ION

AND

VENUE

4. This is an action for a declaratory judgment arising under the Trademark Laws

of

the United States, 15 USC 1051, et seq. (the Trademark Act ), 15 U.S.C. 1125, et seq. (the

8/10/2019 Kliot v. Mike's Hard Lemonade complaint.pdf

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LanhamAct ), and 28 U.S.C. 2201, 2202 (the Declaratory Judgment Act ). Thus, this Court

has original jurisdiction over the subject matter

of

this action.

r r

5. Defendant is also subject to personal jurisdiction in this Court because Defendant

regularly conducts business and uses its trademarks at issue in this litigation in the State

of

New

York and within this District . In addition, false assertions of alleged infringement of trademarks

were directed to the Plaintiff in the State

of

New York. Thus, this Cour t has both general and

specific personal jurisdiction over Defendant.

6. Venue of this action is proper in this District under 28 U.S.C. 1391(b)(l) and (2)

because Defendant is subject to personal jurisdiction of this Court and qualif ies as a resident of

this District. In addition, a substantial par t

of

the events giving rise to Plaintiffs claims has

occurred,

and

will continue to occur, within this District.

FAC TUAL BACKGROUND

7. The Mark was registered with the United States Patent and Trademark Office

( USPTO ) on April 28, 2009. The Mark was registered for non-alcoholic energy beverages in

a variety of flavors, namely cola, citrus, tonic, club soda and energy flavored.

8. The Mark has been continuously used in commerce, including through Plaintiffs

businesses HARD Beverages

of

America, LLC and HARD Beverages International, Inc. in

connection with the goods for which Plaintiffobtained registration.

9. The Mark has not been used in connection with the sale

of

alcoholic beverages.

10. Defendant

asserts

that it

has

used

the

marks

MIKE S HARD,

MIKE S

HARD

LEMONADE,

MIKE S

HARD CRANBERRY LEMONADE, MIKE S HARD TEA, and

MIKE'S HARD PUNCH, in connection with various alcoholic beverages. Various

of

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F IR ST COUNT

Non-Infringement)

22. Plaintiff repeats and realleges its allegations set forth in paragraphs 1-21 hereof as

if

set forth fully herein.

23. As a justiciable controversy exists by way

of

threat

of

immediate litigation, as well

as the action taken by Defendant in the USPTO, Plaintiff seeks relief from this Court.

24. Plaintiff is entitled to a declaratory judgment that it is not infringing, and that

Plaintiffs Mark does not infringe, and has not infringed, any valid trademark owed by Defendant.

SECOND

COUNT

Unenforceabi l i ty o f Mark ,

25. Plaintiffrepeats and realleges its allegations set forth in paragraphs 1-24 hereofas

if set forth fully herein.

26. As a justiciable controversy exists by way

of

threat of immediate litigation, as well

as the action taken by Defendant in the USPTO, Plaintiffseeks

relief

from this Court.

27. Plainti ff is entitled to a declaratory judgment that any and all

of

Defendant's marks

using the phrase Hard with respect to the sale on non-alcoholic beverages are unenforceable,

and lack the legal requirements to be protectable under law, and infringe upon Plaintiffs Mark.

THIRD

COUNT

Validity o f Mark

28. Plaintiffrepeats and realleges its allegations set forth in paragraphs 1-27 hereof as

if set forth fully herein.

29. As a justiciable controversy exists by way

of

threat

of

immediate litigation, as well

as the action taken

by

Defendant in the USPTO, Plaintiffseeks relief from this Court.

30. For all

of

the reasons found by the USPTO in granting Plaintiff registration

of

Plaintiffs Mark, Plaintiffs Mark is a valid and protectable trademark subject to continued

registration

with

the

USPTO.

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WHEREFORE,

PlaintiffDemands that Judgment be entered as follows:

A. Declaring Plaintiffs Mark is not confusing similar to, and does not infringe upon,

t

Defendant 's Marks and may be used, and registration shall continue with the USPTO, without

interference from Defendant;

B. Declaring Defendant's Marks invalid for use in connection with the sale or

promotion

of

non-alcoholic beverages;

C. Awarding Plaintiff its attorneys' fees, costs, and expenses incurred in connection

with this action; and

D. Awarding such other and further relie fas this Court deems

just

and proper and as

permitted

by

law.

Dated: October 2~I 2014

Respectfully submitted,

OLENDERFELDMAN LLP

BVS

Chris tian

J. l ensen

- CJ1331

cjensen@ofenderfeldman.com

422 Mo:

Summj

9 8 9

908-810-6631 (fax)

Attorneys for

Plaintiff

ersey

07901