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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. ______________________ ELEVATION BEER COMPANY, LLC, Plaintiff,
JURY TRIAL DEMANDED
v. RENEGADE BREWING COMPANY, LLC Defendant.
COMPLAINT AND JURY DEMAND
Plaintiff for its Complaint against Defendant, alleges as follows: PARTIES 1.
Plaintiff Elevation Beer Company, LLC (“ELEVATION”) is a limited liability
company organized and existing under the laws of the State of Colorado with a principal place of business at 115 Pahlone Pkwy, Poncha Springs, Colorado 81242. 2.
Defendant Renegade Brewing Company, LLC is a limited liability company
organized and existing under the laws of the State of Colorado with a principal place of business at 925 West Ninth Ave., Denver, Colorado 80204. JURISDICTION AND VENUE 3.
This is an action for trademark infringement and unfair competition in violation of
the laws of the United States and the State of Colorado. Specifically, Plaintiff alleges trademark infringement in violation of 15 U.S.C. §§ 1114 and 1125(a) and the common law of the State of Colorado, and unfair competition in violation 15 U.S.C. § 1125(a) and the common law of the 1
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State of Colorado. In addition, Plaintiff alleges deceptive trade practices in violation of the Colorado Consumer Protection Act, C.R.S. 6-1-101 et seq. 4.
This Court has subject matter jurisdiction over the claims asserted under the
Lanham Act, pursuant to 15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331 and 1338(a) and (b). 5.
This Court has supplemental jurisdiction over the remaining claims asserted in
this Complaint pursuant to 28 U.S.C. § 1367 because the state law claims are so related to the federal claims that they form part of the same case or controversy, and they are derived from a common nucleus of operative facts. 6.
This Court has personal jurisdiction over Defendant because Defendant is a
Colorado entity conducting business within the state. 7.
Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because Defendant is a
Colorado entity with a principle place of business in Denver, Colorado. ELEVATION’S RIGHTS AND BUSINESS 8.
Plaintiff is a Colorado-based craft brewer of beer and ale.
9.
Plaintiff owns U.S. Trademark Registration No. 4432953 for ELEVATION
BEER COMPANY in connection with “fermented malt beverages, namely, beer and ale.” 10.
A true and correct copy of the foregoing registration is attached as Exhibit A and
incorporated herein by reference. 11.
The application that matured into U.S. Reg. No. 4432953 was filed on July 14,
2011.
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12.
U.S. Reg. No. 4432953 constitutes prima facie evidence of the validity of the
ELEVATION BEER COMPANY mark, Plaintiff’s ownership thereof, and Plaintiff’s exclusive right to use the mark nationwide. 13.
Plaintiff filed an amendment adopting the entity name “Elevation Beer Company,
LLC” with the Colorado Secretary of State on July 13, 2011. 14.
A true and correct copy of the foregoing amendment is attached as Exhibit B and
incorporated herein by reference. 15.
Plaintiff first used the entity name “Elevation Beer Company, LLC” to transact
business within the State of Colorado in July 2011. 16.
Plaintiff first used the trademark ELEVATION BEER COMPANY on goods in
interstate commerce on May 19, 2012. 17.
The names, marks, and designations of origin described in paragraphs 9-16 are
referred to herein as the “Elevation Marks.” 18.
Plaintiff has common law rights to the Elevation Marks by virtue of their use, as
described herein. 19.
The Elevation Marks have developed substantial public recognition and goodwill.
20.
Plaintiff has spent hundreds of thousands of dollars in advertising to promote the
Elevation Marks. As part of its brand investment, Plaintiff advertises its goods and services locally and nationwide through traditional advertising, social media, promotional goods (e.g., shirts, hats, and glassware), product packaging, company property branding, website and blog, email marketing, and press releases.
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21.
Plaintiff’s rights to the Elevation Marks are prior and senior to any rights
Defendant may have in any “Elevation”-formative mark or name. DEFENDANT’S UNLAWFUL ACTS 22.
Defendant is a Colorado-based craft brewer of beer and ale.
23.
Defendant and Plaintiff are competitors.
24.
Defendant uses the word “Elevation” in connection with the promotion and sale
of beer and ale. See Exhibit C, incorporated herein by reference. 25.
Defendant’s first used the word “Elevation” in connection with the sale of beer
and ale no earlier than December 6, 2011. 26.
Defendant does not have authorization from Plaintiff to use the word “Elevation”
in connection with the promotion and sale of beer and ale. 27.
Defendant’s unauthorized use of “Elevation” in connection with beer and ale is
likely to create confusion with Plaintiff and the Elevation Marks as to the source of Defendant’s goods and services. 28.
Use of the word “Elevation” by Defendant creates the impression that Defendant
is somehow related to, affiliated with, or endorsed by Plaintiff. 29.
Actual marketplace confusion exists as a result of Defendant’s unauthorized use
of “Elevation” in connection with beer and ale. 30.
Defendant is aware of Plaintiff’s goods and services and the Elevation Marks.
31.
On April 3, 2014, Plaintiff asked Defendant to stop using the word “Elevation” in
connection with beer and ale. See Exhibit D, incorporated herein by reference.
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32.
Defendant has refused to stop using the word “Elevation” in connection with beer
and ale. 33.
Defendant continues, in bad faith, to use the word “Elevation” in connection with
beer and ale, without right or authorization from Plaintiff. 34.
Defendant continues, in bad faith, to exploit Plaintiff’s intellectual property rights
without right or authorization from Plaintiff. FIRST CLAIM FOR RELIEF (Federal Trademark Infringement in Violation of 15 U.S.C. § 1114) 31.
The allegations of all prior paragraphs are incorporated by reference as though
fully set forth herein. 32.
Defendant’s use of the word “Elevation” in connection with beer and ale is
confusingly similar to the Elevation Marks. 33.
Defendant’s continued use of the word “Elevation” is likely to cause confusion or
mistake, or to deceive consumers and prospective consumers as to the origin, sponsorship, association or approval of the goods provided by Defendant, or to cause confusion or mistake or to deceive relevant consumers and prospective consumers that Defendant is connected or otherwise associated with Plaintiff. 34.
The conduct described herein has been without authorization of Plaintiff and has
damaged, is damaging, and is likely to continue to damage Plaintiff in an amount to be proved at trial. 35.
The conduct described herein constitutes a violation of 15 U.S.C. § 1114 with
respect to Registration No. 4432953, and has caused and is causing irreparable harm and damage to Plaintiff for which there is no adequate remedy at law. 5
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SECOND CLAIM FOR RELIEF (False Designation of Origin and Unfair Competition in Violation of 15 U.S.C. § 1125(a)) 36.
The allegations of all prior paragraphs are incorporated by reference as though
fully set forth herein. 37.
Defendant’s use of the word “Elevation” in connection with beer and ale is likely
to cause confusion or mistake, or to deceive relevant consumers and prospective consumers as to the origin, sponsorship, association or approval of the goods and services provided by Defendant, or to cause confusion or mistake or to deceive relevant consumers and prospective consumers that Defendant is connected or otherwise associated with Plaintiff. 38.
The conduct described herein has been without authorization of Plaintiff and has
damaged, is damaging, and is likely to continue to damage Plaintiff in an amount to be determined at trial. 39.
On information and belief, Defendant continues to use the word “Elevation” in
connection with beer and ale with knowledge and in willful disregard of Plaintiff’s rights. 40.
The conduct described herein constitutes a violation of 15 U.S.C. § 1125(a) with
respect to the Elevation Marks, including but not limited to the “Elevation Beer Company, LLC” entity name filed with the Colorado Secretary of State on July 13, 2011, and has caused and is causing irreparable harm and damage to Plaintiff for which there is no adequate remedy at law. THIRD CLAIM FOR RELIEF (Common Law Trademark Infringement) 41.
The allegations of all prior paragraphs are incorporated by reference as though
fully set forth herein.
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42.
Defendant’s use of the word “Elevation” in connection with beer and ale is
confusingly similar to the Elevation Marks. 43.
Such use by Defendant is likely to cause confusion, mistake, and/or deception of
relevant consumers and prospective consumers. 44.
The conduct described herein has been without authorization of Plaintiff and has
damaged, is damaging, and is likely to continue to damage Plaintiff in an amount to be determined at trial. 45.
The conduct complained of herein has caused and is causing irreparable harm and
damage to Plaintiff for which there is no adequate remedy at law. 46.
On information and belief, the aforesaid conduct has been continued willfully by
Defendant with full knowledge of Plaintiff’s rights in the Elevation Marks and with the intention of causing confusion, mistake, or deception. FOURTH CLAIM FOR RELIEF (Common Law Unfair Competition) 46.
The allegations of all prior paragraphs are incorporated by reference as though
fully set forth herein. 47.
Defendant has advertised, promoted, offered, and/or sold its goods in the State of
Colorado using the word “Elevation” with full knowledge of Plaintiff’s rights in the Elevation Marks and of its prior use of the Elevation Marks for the same or closely-related goods and services. 48.
Defendant has unfairly competed with Plaintiff by creating the impression among
relevant consumers that the goods and services offered by Defendant are licensed by, sponsored by, originated with, and/or are otherwise affiliated with those of Plaintiff, or that the source of 7
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the goods offered and sold by Defendant using the word “Elevation” is affiliated with or associated with Plaintiff, when Defendant’s goods have no connection with or authorization from Plaintiff. 49.
Defendant has misappropriated Plaintiff’s valuable goodwill and public
recognition of the Elevation Marks, which has been developed over a long period of time by Plaintiff, and Defendant has unlawfully benefited and been unjustly enriched by such activities. 50.
Continued use by Defendant of the word “Elevation” in connection with its goods
and services constitutes unfair competition under the common law of the State of Colorado. 51.
This use has injured Plaintiff’s business reputation and will cause irreparable
harm, damage, and injury to Plaintiff unless restrained or enjoined by the Court. FIFTH CLAIM FOR RELIEF (Colorado Consumer Protection Act) 52.
The allegations of all prior paragraphs are incorporated by reference as though
fully set forth herein. 53.
Defendant’s activities described herein constitute unfair competition and unfair or
deceptive acts and practices in the conduct of its trade and business in violation of C.R.S. § 6-1101, et seq., including but not limited to §105(a)(b)(c), and (e). 54.
These activities significantly impact the public as actual or potential consumers of
Defendant’s beer and ale because the goods are widely advertised and distributed and a significant number of consumers purchase the relevant goods. 55.
Plaintiff has been injured in the course of its business as a result of the deceptive
trade practices in the form of actual and potential consumer confusion and misdirected sales.
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56.
On information and belief, Defendant’s wrongful and deceptive activities have
caused, and, unless enjoined by this Court, will continue to cause irreparable injury and other damage to Plaintiff’s business, reputation, and goodwill in the Elevation Marks for which Plaintiff has no adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for an order from this Court: A.
Preliminarily and permanently enjoining Defendant, and its directors, officers,
agents, servants, employees, successors and assigns, and all individuals acting in concert or participation with them, from: 1. Any further infringement of Plaintiff’s trademark and trade name rights; and 2. Unfairly competing with Plaintiff; B.
Directing Defendant to deliver up to Plaintiff for destruction or other disposition,
within thirty days or entry of final judgment herein, any and all infringing materials, including but not limited to beer, ale, and other merchandise sold by Defendant that display the word “Elevation;” C.
For an award of Defendant’s profits obtained in the use of the word “Elevation;”
D.
For an award of Plaintiff’s damages resulting from the use of the word
“Elevation;” E.
For an award of costs incurred by Plaintiff in this action;
F.
Trebling the amount of the award made herein to deter in the future Defendant’s
willful, intentional, and bad faith conduct;
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G.
For an award of attorney fees, costs, and disbursements incurred in this action
based on Defendant’s willful, intentional, and bad faith conduct; and H.
Such other and further relief as the Court deems just and proper. DEMAND FOR JURY TRIAL
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demand a trial by jury on all issues triable of right by a jury. Dated: May 9, 2014
s/ Ian L. Saffer Ian L. Saffer KILPATRICK TOWNSEND & STOCKTON LLP 1400 Wewatta St., Ste. 600 Denver, CO 80202 Telephone: (303) 571-4000 Facsimile: (303) 571-4321 E-mail:
[email protected]; Attorneys for Plaintiff Elevation Beer Company, LLC
66225344V.1
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