Frito-Lay North America, Inc. v. Medallion Foods, Inc. et al
Filing
1
COMPLAINT against Medallion Foods, Inc., RALCORP Holdings, Inc. ( Filing fee $ 350 receipt number 0540-3443414.), filed by Frito-Lay North America, Inc.. (Attachments: # 1 Exhibit A - Trademarks, # 2 Exhibit B - Patents, # 3 Civil Cover Sheet)(Durst, Timothy)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
FRITO-LAY NORTH AMERICA, INC.
Plaintiff,
v.
MEDALLION
FOODS,
INC.
RALCORP HOLDINGS, INC.,
Defendants.
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Case No. ___________________
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
Plaintiff Frito-Lay North America, Inc. (“Frito-Lay”) files this complaint against
Defendants Medallion Foods, Inc. (“Medallion Foods”) and Ralcorp Holdings, Inc. (“Ralcorp”)
(collectively, “Defendants”), and alleges as follows:
NATURE OF THE ACTION
1.
This is an action for trademark infringement, trade dress infringement, unfair
competition and dilution under the United States Trademark (Lanham) Act, 15 U.S.C. § 1051, et
seq. (as amended); for patent infringement under the patent laws of the United States, 35 U.S.C.
§ 271 et seq.; for trademark dilution under Texas Business and Commerce Code § 16.29; and for
trademark infringement, unfair competition, and unjust enrichment under Texas common law.
2.
This lawsuit is brought to stop Defendants from infringing Frito-Lay’s valuable
trademarks, trade dress, and patents relating to its unique TOSTITOS® SCOOPS!® tortilla
chips.
Frito-Lay has invested significantly in this product and it has enjoyed widespread
consumer acceptance and success. Defendants’ bowl-shaped tortilla chips and accompanying
package are an apparent intentional effort to imitate the famous, successful mark and packaging
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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of Frito-Lay’s TOSTITOS SCOOPS! tortilla chips. Despite Frito-Lay’s request, Defendants
have not stopped manufacturing and selling their copycat chips. Their infringement of FritoLay’s intellectual property rights harms Frito-Lay as well as Frito-Lay customers who may be
confused and deceived by Defendants’ products. Frito-Lay seeks intervention of this Court to
stop Defendants from continuing their knock-off strategy.
PARTIES
3.
Frito-Lay is a Delaware corporation having a place of business at 7701 Legacy
Drive, Plano, Texas 75024.
4.
On information and belief, Medallion Foods is an Arkansas corporation with its
principal place of business at 3636 Medallion Avenue, Newport, Arkansas 72112. Medallion
Foods may be served by forwarding citation to its registered agent, The Corporation Company,
124 West Capitol Avenue, Suite 1900, Little Rock, Arkansas 77201.
5.
On information and belief, Ralcorp is a Missouri corporation with its principal
place of business at 600 Market Street, St. Louis, Missouri 63101. Ralcorp may be served by
forwarding citation to its registered agent, CT Corporation Systems, 120 South Central Avenue,
Clayton, Missouri 63105.
JURISDICTION AND VENUE
6.
This Court has jurisdiction over the subject matter of this action under
15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1332, 1338, and 1367.
7.
This Court has personal jurisdiction over Defendants because Defendants are
committing tortious acts within this State by, among other things, using infringing marks in
connection with their manufacture, distribution, and sale of bowl-shaped tortilla chip products;
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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have caused injury to Frito-Lay within this State; and the events giving rise to this Complaint
have occurred in this State and had effects in the State and District.
8.
Venue is proper under 28 U.S.C. §§ 1391 and 1400 in that Defendants are deemed
to reside in this District, and a substantial part of the events or omissions giving rise to the claims
asserted herein arose in this District.
FRITO-LAY’S TOSTITOS SCOOPS! MARKS AND TRADE DRESS
9.
Frito-Lay, through its predecessors in interest and title, and through its related
companies, divisions and/or licensees, has been engaged in the manufacture and sale of snack
foods for over fifty years and is one of the leading manufacturers of snack foods in the United
States.
10.
Frito-Lay has used the marks TOSTITOS SCOOPS! and the unique product
design of the TOSTITOS SCOOPS! tortilla chip (the “TOSTITOS SCOOPS Design”)
(collectively, the “TOSTITOS SCOOPS! Marks”) since at least as early as 2001. The image
below is from Frito-Lay’s federally registered trademark U.S. Reg. 2,766,278; it is a trademark
for the multi-sided, bowl-shaped design of the TOSTITOS SCOOPS! tortilla chip.
11.
Frito-Lay has further adopted and uses a distinctive trade dress for its TOSTITOS
SCOOPS! tortilla chips (the “TOSTITOS SCOOPS! Trade Dress”), incorporating a distinctive
combination of elements, including the trademark TOSTITOS in thick black font with a white
shadow superimposed over a dark yellow shield-like design, a clear panel beneath the
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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TOSTITOS logo that showcases the unique bowl-shaped tortilla chip, which is also a trademark,
a bowl of red salsa beneath the clear panel, and blue as the dominant color.
12.
For over a decade, TOSTITOS SCOOPS! Marks have been identified with Frito-
Lay’s tortilla chips and both the TOSTITOS SCOOPS! Marks and TOSTITOS SCOOPS Trade
Dress have appeared on a tremendous amount of product packaging, advertising, national
television commercials, in-store display racks, and point-of-purchase material.
13.
Frito-Lay’s TOSTITOS SCOOPS Design has acquired distinctiveness through
extensive use and tremendous commercial success, and the other TOSTITOS SCOOPS! Marks
and the TOSTITOS SCOOPS! Trade Dress are inherently distinctive, serving to identify and
indicate the source of Frito-Lay’s products to the consuming public, and to distinguish FritoLay’s products and services from those of others.
14.
In accordance with the provisions of federal law, Frito-Lay owns several
registrations for the TOSTITOS SCOOPS! Marks on the Principal Register of the United States
Patent and Trademark Office, including the following:
Mark
Bowl-shaped
configuration of the
goods
SCOOPS!
U.S. Reg. No.
(Filing Date)
2,766,278
1st Use in Commerce
Goods/Services
April 30, 2001
Corn-based snack foods,
namely, tortilla chips, in
Class 30 (U.S. Cl. 46)
April 30, 2001
Corn-based snack foods,
namely, tortilla chips, in
Class 30 (U.S. Cl. 46)
Corn-based snack foods,
namely, tortilla chips, in
Class 30 (U.S. Cl. 46)
Corn-based snack foods,
namely, tortilla chips;
picante sauce; salsa, in Class
30 (U.S. CL. 46)
(2/20/2002)
2,607,988
(9/23/1999)
Tostitos (stylized word
mark and design)
3,030,726
(8/13/2004)
October 1, 2004
Tostitos (stylized word
mark and design)
2,728,067
(3/18/2002)
March 2002
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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These registrations were duly and legally issued, are presently valid and subsisting, and FritoLay owns all right, title and interest to said registrations.
Each of the registrations is
incontestable pursuant to 15 U.S.C. § 1065. Copies of these registrations are attached as Exhibit
A to this Complaint.
PROMOTION OF FRITO-LAY’S TOSTITOS SCOOPS! MARKS AND TRADE DRESS
15.
As noted, TOSTITOS SCOOPS! tortilla chips are marketed and sold in large
quantities in the United States, supported by advertising and promotion each year. Over the last
five years, Frito-Lay has spent millions of dollars advertising its TOSTITOS brand, of which the
TOSTITOS SCOOPS! products are an integral component, across the nation.
16.
TOSTITOS SCOOPS! tortilla chips are an important component of the
TOSTITOS brand, representing a valuable piece of the TOSTITOS portfolio. Frito-Lay sells
tens of millions of dollars per year of TOSTITOS SCOOPS! tortilla chips.
TOSTITOS
SCOOPS! tortilla chips are sold in almost every supermarket in the United States, as well as in
numerous convenience stores, mass merchandise stores, and other outlets.
17.
As a result of Frito-Lay’s long, extensive, widespread, and substantially exclusive
use of the TOSTITOS SCOOPS! Marks and the TOSTITOS SCOOPS! Trade Dress and the
extensive consumer exposure to Frito-Lay’s quality products and services, Frito-Lay has
developed significant and valuable goodwill in each of the TOSTITOS SCOOPS! Marks and the
TOSTITOS SCOOPS! Trade Dress.
18.
By virtue of their tremendous sales success, and extensive and popular advertising
and promotional efforts, the products sold under the TOSTITOS SCOOPS! Marks and the
TOSTITOS SCOOPS! Trade Dress enjoy an extremely favorable reputation among the trade and
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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consumers as identifying high-quality food products manufactured and sold exclusively by FritoLay.
19.
Frito-Lay has acquired valuable common-law rights in the TOSTITOS SCOOPS!
Marks and the TOSTITOS SCOOPS! Trade Dress throughout the United States, including
Texas.
20.
Consumers have come to associate each of the TOSTITOS SCOOPS! Marks and
the TOSTITOS SCOOPS! Trade Dress uniquely with Frito-Lay and its goods and services.
FRITO-LAY’S PATENTS
21.
In addition to its trademark and trade dress rights, Frito-Lay owns patents on
various processes and systems used to manufacture its unique bowl-shaped tortilla chip,
including U.S. Patent Nos. 6,610,344 (the “’344 Patent”), which was duly and legally issued on
August 26, 2003; 6,592,923 (the “’923 Patent”), which was duly and legally issued on July 15,
2003; and 6,638,553 (the “’553 Patent”), which was duly and legally issued on October 28,
2003; as well as U.S. Design Patent No. 459,853 (the “’853 Patent”) (collectively, the “Patentsin-Suit”), which was duly and legally issued on July 2, 2002. Copies of the Patents-in-Suit are
attached hereto as Exhibit B.
DEFENDANTS AND THEIR ACTIVITIES
22.
More than a decade after Frito-Lay began selling its popular TOSTITOS
SCOOPS! tortilla chips, Defendants began selling a copycat line of tortilla chips, using a product
design and trade dress that are confusingly similar to the TOSTITOS SCOOPS! design and the
TOSTITOS SCOOPS! trade Dress (“Defendants’ Design and Trade Dress,” shown below).
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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23.
In the image below, TOSTITOS SCOOPS! tortilla chips are on the left, and
Defendants’ infringing tortilla chips are on the right.
And in the following images, the TOSTITOS SCOOPS! tortilla chips package is on the left, and
Defendants’ infringing package of tortilla chips is on the right.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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24.
Defendants are trading off Frito-Lay’s proprietary TOSTITOS SCOOPS! Design
and usurping virtually every element of Frito-Lay’s TOSTITOS SCOOPS! Trade Dress. Like
Frito-Lay, Defendants’ tortilla chip has a multi-sided bowl-shaped design. No other competitive
tortilla chip is as similarly designed. On both packages, the lettering at the top of the package is
black and thick with a white shadow and is superimposed over a dark yellow shield-like design;
plus, each combination of mark and shield features orange accents. Below, in the middle of each
bag, is a clear panel showing the multi-sided bowl-shaped white corn tortilla chips. Below the
panel, on the bottom third of each package, is a bowl of red salsa that spans almost the entire
width of the bag. Further, the packaging for both products is dominated by the color blue.
25.
On information and belief, Defendants’ tortilla chips are sold not only through the
same retail outlets and stores as Frito-Lay’s products but in the same aisles and on the same
shelves at a similar price point of only a few dollars each.
26.
Defendants’ use of Defendants’ Design and Trade Dress is in commerce and
without the permission or authority of Frito-Lay.
DEFENDANTS’ ACTIVITIES ARE CAUSING DAMAGE TO FRITO-LAY
AND THE CONSUMING PUBLIC
27.
Defendants’ unauthorized use of Defendants’ Design and Trade Dress is likely to
cause confusion, to cause mistake, or to deceive consumers and potential customers of the
parties, at least as to the affiliation, connection, or association of Defendants with Frito-Lay
and/or its TOSTITOS SCOOPS! Design and the TOSTITOS SCOOPS! Trade Dress, or as to the
origin, sponsorship, or approval of Defendants’ products by Frito-Lay.
28.
Defendants’ unauthorized use of Defendants’ Design and Trade Dress falsely
indicates to the purchasing public that Defendants, their business, and/or their goods and services
originate with Frito-Lay, or are affiliated, connected, or associated with Frito-Lay, or are
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
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sponsored, endorsed, or approved by Frito-Lay, or are in some manner related to Frito-Lay
and/or its TOSTITOS SCOOPS! Design and Trade Dress, when there is no connection
whatsoever.
29.
Defendants’ unauthorized use of Defendants’ Design and Trade Dress falsely
designates the origin of Defendants’ products, and falsely and misleadingly describes and
represents facts with respect to Defendants and their products.
30.
Defendants’ unauthorized use of Defendants’ Design and Trade Dress is likely to
dilute the distinctive quality of Frito-Lay’s TOSTITOS SCOOPS! Design and Trade Dress.
31.
Defendants’ unauthorized use of Defendants’ Design and Trade Dress enables
them to trade on and receive the benefit of goodwill built up at great labor and expense over
many years by Frito-Lay, and to gain acceptance for their goods not solely on their own merits,
but on the reputation and goodwill of Frito-Lay and its TOSTITOS SCOOPS! Design and Trade
Dress.
32.
Defendants have been and continue to be unjustly enriched by obtaining a benefit
from and taking undue advantage of Frito-Lay and its goodwill. Specifically, Defendants have
unfairly competed against and taken undue advantage of Frito-Lay by trading on and profiting
from the goodwill in the TOSTITOS SCOOPS! Design and Trade Dress developed and owned
by Frito-Lay, resulting in Defendants’ wrongfully obtaining a monetary and reputational benefit
for their own business and products.
33.
Defendants’ unauthorized use of Defendants’ Design and Trade Dress removes
from Frito-Lay the ability to control the nature and quality of products provided under its own
TOSTITOS SCOOPS! Design and Trade Dress, and places the valuable reputation and goodwill
of Frito-Lay in the hands of Defendants, over which Frito-Lay has no control.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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34.
Unless restrained by this Court, these acts of Defendants will continue, and they
will continue to cause irreparable injury to Frito-Lay and to the public for which there is no
adequate remedy at law.
COUNT 1: FEDERAL TRADEMARK INFRINGEMENT
35.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
36.
The acts of Defendants complained of herein constitute infringement of Frito-
Lay’s federally registered TOSTITOS SCOOPS! Design in violation of 15 U.S.C. § 1114.
37.
On information and belief, Defendants are imitating the TOSTITOS SCOOPS!
Design with full knowledge of Frito-Lay’s rights, and in bad faith with a willful and deliberate
intent to trade on the vast goodwill in Frito-Lay’s TOSTITOS SCOOPS! Design. In view of the
willful nature of Defendants’ activities, this is an exceptional case within the meaning of 15
U.S.C. § 1117(a).
38.
Defendants’ conduct has caused and is causing irreparable injury to Frito-Lay
and, unless enjoined by this Court, will continue both to damage Frito-Lay and to deceive the
public. Frito-Lay has no adequate remedy at law.
COUNT TWO: TRADE DRESS INFRINGEMENT AND UNFAIR COMPETITION
39.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
40.
The acts of Defendants complained of herein constitute trade dress infringement
and unfair competition in violation of 15 U.S.C. § 1125(a).
41.
Frito-Lay has been damaged by Defendants’ acts of infringement and unfair
competition.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
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42.
On information and belief, Defendants’ infringement has been willful and in bad
faith, making this an exceptional case under 15 U.S.C. § 1117.
43.
Defendants’ conduct has caused and is causing irreparable injury to Frito-Lay
and, unless enjoined by this Court, will continue both to damage Frito-Lay and to deceive the
public. Frito-Lay has no adequate remedy at law.
COUNT THREE: FEDERAL TRADEMARK DILUTION
44.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
45.
As a result of extensive promotion and use of the TOSTITOS SCOOPS! Design
by Frito-Lay for many years, the TOSTITOS SCOOPS! Design is famous throughout the United
States, highly distinctive of Frito-Lay’s goods, and uniquely and exclusively associated with
Frito-Lay.
The TOSTITOS SCOOPS! Design became famous long before Defendants
commenced their unauthorized use of the TOSTITOS SCOOPS! Design as described herein.
46.
The acts of Defendants complained of herein constitute a likelihood of dilution of
the distinctive quality of the TOSTITOS SCOOPS! Design in violation of 15 U.S.C. § 1125(c).
47.
Defendants’ conduct has caused and is causing irreparable injury to Frito-Lay
and, unless enjoined by this Court, will continue both to damage Frito-Lay and to deceive the
public. Frito-Lay has no adequate remedy at law.
COUNT FOUR: PATENT INFRINGEMENT – ’344 PATENT
48.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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49.
On information and belief, Defendants have made and used and continue to make
and use processes for manufacturing bowl-shaped tortilla chips that infringe one or more claims
of the ’344 Patent either literally or under the doctrine of equivalents.
50.
Defendants are liable for infringing the ’344 Patent under 35 U.S.C. § 271.
51.
The infringement of the ’344 Patent by Defendants has injured and damaged
Frito-Lay, and will continue to cause Frito-Lay harm unless enjoined by this Court.
COUNT FIVE: PATENT INFRINGEMENT – ’923 PATENT
52.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
53.
On information and belief, Defendants have made and used and continue to make
and use systems and methods for manufacturing bowl-shaped tortilla chips that infringe one or
more claims of the ’923 Patent either literally or under the doctrine of equivalents.
54.
Defendants are liable for infringing the ’923 Patent under 35 U.S.C. § 271.
55.
The infringement of the ’923 Patent by Defendants has injured and damaged
Frito-Lay, and will continue to cause Frito-Lay harm unless enjoined by this Court.
COUNT SIX: PATENT INFRINGEMENT – ’553 PATENT
56.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
57.
On information and belief, Defendants have made and used and continue to make
and use systems and methods for manufacturing bowl-shaped tortilla chips that infringe one or
more claims of the ’553 Patent either literally or under the doctrine of equivalents.
58.
Defendants are liable for infringing the ’553 Patent under 35 U.S.C. § 271.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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59.
The infringement of the ’553 Patent by Defendants has injured and damaged
Frito-Lay, and will continue to cause Frito-Lay harm unless enjoined by this Court.
COUNT SEVEN: PATENT INFRINGEMENT – ’853 PATENT
60.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
61.
On information and belief, Defendants have manufactured and/or used and
continue to manufacture and/or use products that infringe one or more claims of the ’853 Patent
either literally or under the doctrine of equivalents by making bowl-shaped tortilla chips.
62.
Defendants are liable for infringing the ’853 Patent under 35 U.S.C. § 271.
63.
The infringement of the ’853 Patent by Defendants has injured and damaged
Frito-Lay, and will continue to cause Frito-Lay harm unless enjoined by this Court.
COUNT EIGHT: COMMON LAW TRADEMARK INFRINGEMENT
64.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
65.
The acts of Defendants complained of herein constitute trademark infringement
under the common law of Texas.
66.
Defendants’ conduct has caused and is causing irreparable injury to Frito-Lay
and, unless enjoined by this Court, will continue both to damage Frito-Lay and to deceive the
public. Frito-Lay has no adequate remedy at law.
COUNT NINE: COMMON LAW UNFAIR COMPETITION
67.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
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68.
The acts of Defendants complained of herein constitute unfair competition under
the common law of Texas.
69.
Defendants’ conduct has caused and is causing irreparable injury to Frito-Lay
and, unless enjoined by this Court, will continue both to damage Frito-Lay and to deceive the
public. Frito-Lay has no adequate remedy at law.
COUNT TEN: TRADEMARK DILUTION UNDER TEXAS STATE LAW
70.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
71.
The TOSTITOS SCOOPS! Design and Trade Dress are inherently distinctive
and/or have acquired distinctiveness as a result of Frito-Lay’s extensive promotion and use.
72.
Defendants’ conduct alleged herein is likely to dilute, blur and/or tarnish the
distinctive qualities of the TOSTITOS SCOOPS! Design and Trade Dress in violation of Section
16.29 of the Business and Commerce Code of the State of Texas.
73.
Defendants’ conduct has caused and is causing irreparable injury to Plaintiff and,
unless enjoined by this Court, will continue both to damage Plaintiff and to deceive the public.
Plaintiff has no adequate remedy at law.
COUNT ELEVEN: UNJUST ENRICHMENT
74.
Frito-Lay realleges and incorporates by reference the foregoing allegations as
though fully set forth here.
75.
The acts of Defendants complained of herein constitute unjust enrichment of
Defendants at Frito-Lay’s expense.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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PRELIMINARY INJUNCTION
76.
Frito-Lay asks the Court to enter a preliminary injunction to prevent further
irreparable injury to Frito-Lay pending final resolution of this lawsuit, at which time a permanent
injunction will be warranted by the facts stated above. Frito-Lay will file a separate motion
asking the Court to enjoin Defendants from using Defendants’ Design and Trade Dress or any
other mark and trade dress that is confusingly similar to Frito-Lay’s TOSTITOS SCOOPS!
Design and Trade Dress in connection with the promotion, advertising, manufacture,
distribution, offering for sale, or sale of any tortilla chips, including any further manufacture,
sale, or distribution of BOWLZ tortilla chips.
77.
Frito-Lay has alleged causes of action of trademark infringement and trade dress
infringement against Defendants, and as indicated in this Complaint, Frito-Lay has a probable
right of recovery and likelihood of suceeding on the merits. Frito-Lay will suffer irreparable
harm without Court intervention and for which there is no adequate remedy at law.
78.
As a direct and proximate result of Defendants’ wrongful actions in this
Complaint, Frito-Lay will suffer injury that will be irreparable and for which no remedy at law
exists without the protections of injunctive relief. Frito-Lay is willing to post the necessary
reasonable bond to facilitate the injunctive relief requested.
79.
Wrongful, damaging conduct has occurred and will continue to occur if not
enjoined. On information and belief, Defendants are intent on exploiting Frito-Lay’s TOSTITOS
SCOOPS! Design and Trade Dress in violation of governing trademark law and must be
restrained from doing so.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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80.
The public interest is served by an injunction as it protects against the confusion
and deception of consumers, as described above, and it protects the substantial investment made
by Frito-Lay in creating and preserving its TOSTITOS SCOOPS! Design and Trade Dress.
REQUESTED RELIEF AND REQUEST FOR PERMANENT INJUNCTION
Frito-Lay requests the following relief:
A.
That Defendants and Defendants’ officers, agents, servants, attorneys, employees,
any companies owned or controlled by Defendant, and their affiliates, successors and assigns,
and all of those in active concert or participation with any of them who receive notice directly or
otherwise, be preliminarily and permanently enjoined and restrained from using or seeking to
register any mark that is confusingly similar to the TOSTITOS SCOOPS! Design and Trade
Dress, or any other symbols or indicia associated with Frito-Lay and/or confusingly similar to
the TOSTITOS SCOOPS! Design and Trade Dress, or likely to dilute the distinctiveness thereof,
or any copies, simulations, variations, mutilated versions, or colorable imitations thereof (all of
the foregoing, “Prohibited Designations”), as, or as part of, a trademark, service mark, trade
name, business name, fictitious business name, or other identifier, or otherwise presenting such
Prohibited Designations to the public or trade, including any further manufacture, sale, or
distribution of BOWLZ tortilla chips;
B.
That Defendants be ordered to file with the Court and serve upon Frito-Lay’s
counsel within thirty (30) days after entry and service on Defendants of an injunction, a report in
writing under oath setting forth in detail the manner and form in which Defendants have
complied with the requirements of the injunction;
C.
That Frito-Lay recover all damages to which it is entitled as a result of
Defendants’ activities;
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
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D.
An equitable accounting be directed to determine Defendants’ profits resulting
from their infringement and other activities complained of herein, and that such profits be paid
over to Frito-Lay, increased as the Court finds to be just under the circumstances of this case;
E.
That Frito-Lay’s damages be enhanced and that the Court find that this is an
exceptional case;
F.
That Frito-Lay recover its reasonable attorneys’ fees;
G.
That Frito-Lay recover the costs of this action, and pre- and post-judgment
interest; and
H.
That Frito-Lay be awarded such other and further relief as the Court may deem
just and proper.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Frito-Lay demands a trial by
jury on all issues triable of right by a jury.
Respectfully submitted,
/s/ Timothy S. Durst
Timothy S. Durst
State Bar No. 00786924
tim.durst@bakerbotts.com
Susan Cannon Kennedy
State Bar No. 24051663
susan.kennedy@bakerbotts.com
Jonathan R. Mureen
State Bar No. 24060313
jon.mureen@bakerbotts.com
Baker Botts L.L.P.
2001 Ross Avenue, Suite 600
Dallas, Texas 75201
Telephone: 214-953-6500
Facsimile: 214-953-6503
ATTORNEYS FOR PLAINTIFF
FRITO-LAY NORTH AMERICA, INC.
PLAINTIFF FRITO-LAY NORTH AMERICA, INC.’S COMPLAINT
AND REQUEST FOR PRELIMINARY AND PERMANENT INJUNCTIONS
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