JS 44C/SDNY

REV. 4/2012

flJD&fiUUiflnU) CIVIL COVER'

)r\^>leTientThe JS-44 civil cover sheet and the information containedhereiiflWUherjUace nor'*i0pl9Fientthe filing anipleadings orother papers as required by law, except as provided by local rules ofcourt. This form, appiJudicial Conference oftheUnited States in September 1974, is required for useoftheClerk ofCourt for thepurpose 51initiating the civildocket sheet.

mc8 9 ^tDse or ^ ^^

9iAR?8;XH4PLAINTIFFS

CONOPCO, INC. d/b/a UNILEVER

DEFENDANTS

WELLS ENTERPRISES, INC.

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER ATTORNEYS (IF KNOWN)Gregory P. Gulia, Vanessa C. Hew, Mitchell A. FrankDuane Morris LLP1540 Broadway, New York, NY 10036-4086 (212)692-1000CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)

(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Federal trade dress infringement, federal unfair competition &false designation of origin, common law dilution &injury to business reputation, deceptive tradejjractices qt al.

Has this ora similar casebeen previously filed in SDNY atany time? No |x] Yes • Judge Previously Assigned

If yes, was this case Vol. D Invol. D Dismissed. No • Yes • If yes, give date.

IS THIS AN INTERNATIONAL ARBITRATION CASE? No [^ YeS LJ

(PLACE AN[x] INONEBOXONLY)

TORTS

& Case No.~'0

NATURE OF SUIT

ACTIONS UNDER STATUTES

PERSONAL INJURY

[ ] 310 AIRPLANE1)315 AIRPLANE PRODUCT

LIABILITY

[ ] 320 ASSAULT, LIBEL &SLANDER

[ ] 330 FEDERALEMPLOYERS'LIABILITY

[ ] 340 MARINE[ ] 345 MARINE PRODUCT

LIABILITY

[ ] 350 MOTOR VEHICLE[ ] 355 MOTOR VEHICLE

PRODUCT LIABILITY

[ ] 360 OTHER PERSONALINJURY

PERSONAL INJURY FORFEITURE/PENALTY BANKRUPTCY

[ ] 422 APPEAL28 USC 158

[ ] 423 WITHDRAWAL28 USC 157

OTHER STATUTES

[ ] 110[ ] 120I P30[ ]1«0

[ ]150

[ ] 151I I 152

[ ] 153

[ I 160

[ ]190

[ ] 195

[ ]196

INSURANCE

MARINE

MILLER ACT

NEGOTIABLE

INSTRUMENT

RECOVERY OF

OVERPAYMENT &

ENFORCEMENT

OF JUDGMENT

MEDICARE ACTRECOVERY OF

DEFAULTED

STUDENT LOANS(EXCL VETERANS)RECOVERY OF

OVERPAYMENT

OF VETERAN'S

BENEFITS

STOCKHOLDERS

SUITS

OTHER

CONTRACT

CONTRACT

PRODUCT

LIABILITY

FRANCHISE

REAL PROPERTY

I 1210

]2201230

[ ]240[]245

[ ]290

LAND

CONDEMNATION

FORECLOSURE

RENT LEASE &

EJECTMENT

TORTS TO LANDTORT PRODUCT

LIABILITY

ALL OTHER

REAL PROPERTY

[]362 PERSONAL INJURY- []610MED MALPRACTICE 1 j 620

[ ] 365 PERSONAL INJURYPRODUCT LIABILITY [ ] 625

[ J 368 ASBESTOS PERSONALINJURY PRODUCT

LIABILITY

[ ]630[ ]640[ J 650[ )660

[ ]690

AGRICULTURE

OTHER FOOD &

DRUG

DRUG RELATED

SEIZURE OF

PROPERTY

21 USC 881

LIQUOR LAWSRR & TRUCK

AIRLINE REGS

OCCUPATIONALSAFETY/HEALTH

OTHER

PROPERTY RIGHTS

[ ] 820 COPYRIGHTS[ ] 830 PATENTW 840 TRADEMARK

[ ]400

[ ]410[]430[ ]450[ )460[ ]470

[ ]48011490I 1810[ I 850

PERSONAL PROPERTY

[ ] 370 OTHER FRAUD[ ] 371 TRUTHIN LENDING[ ) 380 OTHER PERSONAL

PROPERTY DAMAGE

[ ] 385 PROPERTY DAMAGEPRODUCT LIABILITY LABOR

[ ]710

I I 720

I I 730

SOCIAL SECURITY

[ ] 861 HIA(1395ff)[ ) 862 BLACK LUNG(923)[ ] 863 DIWC/DIWW (405(g))[ ] 864 SSID TITLE XVI[ ] 865 RSI (405(g))

[ I 875

[ J 890

[1891[ I 892

[ ] 893

[ I 894

[ J 895

[ I 900

[ J 950

PRISONER PETITIONS

ACTIONS UNDER STATUTES

CIVIL RIGHTS

[ ]441 VOTING[ ] 442 EMPLOYMENT[ ) 443 HOUSING/

ACCOMMODATIONS[ ] 444 WELFARE[ ] 445 AMERICANS WITH

DISABILITIES -

EMPLOYMENT

[ ] 446 AMERICANSWITHDISABILITIES -OTHER

[ ] 440 OTHER CIVIL RIGHTS(Non-Prisoner)

[ ]510 MOTIONS TOVACATE SENTENCE

20 USC 2255 [ ] 740[ ] 530 HABEAS CORPUS [ ] 790[ ] 535 DEATH PENALTY[ ] 540 MANDAMUS &OTHER [ l 791

PRISONER CIVIL RIGHTS

[ ] 550 CIVIL RIGHTS[ ] 555 PRISON CONDITION

FAIR LABOR

STANDARDS ACTLABOR/MGMT

RELATIONS

LABOR/MGMT

REPORTING &

DISCLOSURE ACTRAILWAY LABOR ACTOTHER LABOR

LITIGATION

EMPL RET INC

SECURITY ACT

FEDERAL TAX SUITS

( ]870 TAXES(U.S. PlaintifforDefendant)

[ ] 871 IRS-THIRD PARTY26 USC 7609

IMMIGRATION

[ ]462

[)463

[ ]465

NATURALIZATION

APPLICATION

HABEAS CORPUS-

ALIEN DETAINEE

OTHER IMMIGRATION

ACTIONS

STATEREAPPORTIONMENT

ANTITRUST

BANKS & BANKING

COMMERCE

DEPORTATIONRACKETEER INFLU

ENCED & CORRUPTORGANIZATION ACT(RICO)CONSUMER CREDITCABLE/SATELLITE TV

SELECTIVE SERVICESECURITIES/COMMODITIES/EXCHANGE

CUSTOMERCHALLENGE

12USC3410

OTHER STATUTORY

ACTIONSAGRICULTURAL ACTSECONOMICSTABILIZATION ACTENVIRONMENTAL

MATTERS

ENERGY

ALLOCATION ACT

FREEDOM OFINFORMATION ACT

APPEAL OF FEEDETERMINATION

UNDER EQUALACCESS TO JUSTICECONSTITUTIONALITYOF STATE STATUTES

Check if demanded in complaint:

CHECK IF THIS IS A CLASS ACTIONUNDERF.R.C.P. 23

DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING INS.D.N.Y.?IF SO, STATE:

DEMAND $ OTHER

Check YES only if demanded in complaintJURY DEMAND: S YES • NO

JUDGE DOCKET NUMBER,

NOTE: Please submit at the time of filing an explanation of whycases are deemed related.

(PLACEAN x IN ONE BOX ONLY)

S 1 original 2 Removed fromProceeding state Court

| | 3. all parties represented

I I b. Atleastoneparty is pro se.

ORIGIN

3 Remanded I—I 4 Reinstated or Lj 5 Transferred from [~J 6 Multidistrictfrom Reopened (Specify District) LitigationAppellateCourt

l~1 7 Appeal toDistrictJudge fromMagistrate JudgeJudgment

(PLACE AN x IN ONEBOXONLY) BASIS OF JURISDICTION

• 1 U.S. PLAINTIFF • 2 U.S. DEFENDANT [X] 3 FEDERAL QUESTION D4 DIVERSITY(U.S. NOT A PARTY)

IF DIVERSITY, INDICATECITIZENSHIP BELOW.(28 USC 1322, 1441)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)

(Place an [X] in one box for Plaintiffand one box for Defendant)

CITIZEN OF THIS STATE

CITIZEN OF ANOTHER STATE

PTF DEF

1 1 CITIZEN OR SUBJECT OF A

FOREIGN COUNTRY

INCORPORATED or PRINCIPAL PLACEOF BUSINESS IN THIS STATE

PLAINTIFF(S)ADDRESS(ES) AND COUNTY(IES)

Conopco, Inc. d/b/a Unilever700 Sylvan AvenueEnglewood Cliffs, New Jersey 07632

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)

Wells Enterprises, Inc.One Blue Bunny DriveLe Mars, Iowa 51031

PTF DEF

|3 3 INCORPORATED and PRINCIPAL PLACEOF BUSINESS IN ANOTHER STATE

FOREIGN NATION

PTF DEF

5 5

DEFENDANT(S) ADDRESS UNKNOWNREPRESENTATION IS HEREBY MADE THAT, ATTHIS TIME, IHAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TOASCERTAIN THE

RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Checkone: THIS ACTION SHOULD BE ASSIGNED TO: • WHITE PLAINS [X] MANHATTAN(DO NOTcheck either box ifthis a PRISONER PETITION/PRISONER CIVIL RIGHTS COMPLAINT.)

DATE 3/28/2014 SIGNATURE OF ATTORNEY

RECEIPT* /c /L«

ADMITTED TO PRACTICE IN THIS DISTRICT

11 Y,X YES (DATE ADMITTED Mo.Atiorney Bar Code # 4093175

Magistrate Judge is to be designated by the Clerk of the Court.

Magistrate Judge HlM* Tr^^^lS is so Designated.

Ruby J. Krajick, Clerk of Court by. Deputy Clerk, DATED.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

1993-

DUANE MORRIS LLP

Gregory P. GuliaVanessa C. Hew

Mitchell A. Frank

1540 BroadwayNew York, New York 10036-4086Telephone: (212) 692-1000Facsimile: (212) 692-1020

Attorneys for PlaintiffCONOPCO, INC. D/B/A UNILEVER

1 2223UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

CONOPCO, INC. D/B/A U

Plainti

WELLS ENTERPRISES, INC.,

Defendant

se No.:

.—-. - j

COMPLAINT AND JURY DEMAND

Plaintiff, Conopco, Inc. d/b/a Unilever ("Unilever"), by its undersigned attorneys, Duane

Morris, LLP, for its Complaint alleges as follows:

1. This action is brought against defendant Wells Enterprises, Inc. ("Defendant") for

federal trade dress infringement, false designation of origin and unfair competition, in violation of

the Lanham Act, and for substantial and related claims of unfair competition, deceptive trade

practices and injury to business reputation under the state and common laws of the State of New

York.

2. Unilever's claims arise from Defendant's use, in connectionwith the production,

marketing, advertising, promotion, distribution and sale of Defendant's BOMB POPS frozen

confection products, of a trade dress that is likely to cause confusion with Unilever's famous and

distinctive trade dress used in connection with its well-known and distinctive FIRECRACKER®

products.

3. Unilever seeks injunctive relief and monetary damages.

PARTIES

4. Unilever is a New York corporation, with a place of business at 700 Sylvan Avenue,

Englewood Cliffs, New Jersey 07632. Unilever and its affiliated companies are leading

manufacturers of food and personal care products. Among their products and widely recognizable

brands, Unilever and/or its affiliates and their licensees manufacture, market and sell frozen

confections, ice cream, and a variety of other products under the federally registered and famous

SICLE®, POPSICLE® (the "POPSICLE® Mark"), FUDGSICLE®, CREAMSICLE®,

CHOCSICLE® and YOSICLE® trademarks (collectively, the "SICLE Marks").

5. Upon information and belief, defendant Wells Enterprises, Inc. is a corporation,

having a place of business at One Blue Bunny Drive, Le Mars, Iowa 51031.

JURISDICTION AND VENUE

6. This Court has jurisdiction under Section 39 of the Lanham Act, 15 U.S.C. § 1121,

Sections 1332(a), 1338(a), 1338(b) and 1367(a) of the Judicial Code, 28 U.S.C. 1332(a), § 1338(a),

§ 1338(b) and § 1367(a), and under principles of supplementary jurisdiction.

7. This Court has personal jurisdiction over the Defendant, and venue is proper in this

district, pursuant to 28 U.S.C. § 1391(b) and (c), because Defendant does business in and/or has

substantial contacts with the State of New York and/or the events giving rise to the claims alleged in

this complaint have a substantial effect in New York and a substantial part of such events occurred

and/or will occur in this district.

8. Upon information and belief, Defendant's marketing, distribution and sale of

products bearing the Infringing Product Packaging (defined below) throughout the United States,

including in New York, through distributors and retailers, some of which are located in New York,

constitute substantial contacts with the State of New York, such that Defendant may reasonably

anticipate being brought into a New York court.

9. The amount in controversy exceeds the sum of $75,000, exclusive of interest and

costs.

FACTS COMMON TO ALL CLAIMS FOR RELIEF

A. Unilever's the FIRECRACKER® Mark and Trade Dress

10. Unilever's rights in its SICLE Marks date back more than ninety years. Over this

more than nine decades, Unilever and/or its affiliates, and their predecessors and/or their licensees

(Unilever's affiliates, predecessors and their licensees are hereinafter collectively referred to as the

"Related Entities"), have successfully grown and expanded the famous and well-known federally

registered SICLE Marks to include, among others, SICLE®, POPSICLE®, POPSICLE THE

ORIGINAL BRAND (and Design)®, CREAMSICLE®, FUDGSICLE®, CHOCSICLE® and

YOSICLE®, for frozen confections and other products.

11. For decades, Unilever and/or the Related Entities have extensively marketed,

advertised, promoted and sold frozen confections under the SICLE Marks throughout the United

States. Unilever and/or the Related Entities have sold, and continue to sell, frozen confections under

the numerous SICLE Marks individually and in multi-packs through retail stores, including grocery

and convenience stores, and mobile vending carts, trucks and stands across the country. Products

sold under the SICLE Marks have been promoted for many years through a wide variety of national

media, including television, radio, print and a website located at the domain name

"www.popsicle.com."

12. As a result of the longstanding, extensive, and widespread use, marketing and

promotion of the SICLE Marks and products by Unilever and/or the Related Entities, Unilever's

SICLE Marks are widely recognized by the general consuming public as a designation of source for

Unilever's frozen confections and other products. Indeed, POPSICLE® brand frozen confections

are the number one kids frozen novelty brand in the United States.

13. Unilever is the exclusive owner of numerous federal registrations for its SICLE

Marks, including, but not limited to, the following:

Mark Registration Registration International Goods

Number Date Class

POPSICLE THE Reg. No. June 21, 1994 International "frozen

ORIGINAL 1,840,718 Class 30 confections"

BRAND® (andDesign)

0«*%*««terfQ

§fe^§Bi§Oo6o6ooo°

POPSICLE® Reg. No. January 16, International "frozen

2,421,400 2001 Class 30 confections"

FUDGSICLE® Reg. No. November 25, International "frozen

434,594 1947 Class 30 confections and

powderedconcentrates for

making thesame"

CREAMSICLE® Reg. No. June 14, 1994 International "frozen

1,839,541 Class 30 confections"

CHOCSICLE® Reg. No. November 28, International "frozen

3,178,063 2006 Class 30 confections"

YOSICLE® Reg. No. May 29, 2012 International "ice creams,4,150,906 Class 30 frozen

confections and

frozen yogurt"

Mark RegistrationNumber

RegistrationDate

International

Class

Goods

SICLE® Reg. No.4,396,616

September 3,2013

International

Class 30

"ice creams and

frozen

confections"

Unilever's registrations for the SICLE Marks provide constructive notice of Unilever's claim of

ownership under 15 U.S.C. § 1072.

14. Unilever's federal registrations for POPSICLE THE ORIGINAL BRAND® (and

Design) (Reg. No. 1,840,718), POPSICLE® (Reg. No. 2,421,400) and CREAMSICLE® (Reg. No.

1,839,541), are incontestable pursuant to 15 U.S.C. § 1065, and thus provide conclusive evidence of

Unilever's exclusive right to use the marks covered by the registrations in commerce in connection

with the goods specified in the registrations.

15. Unilever markets, distributes and sells its POPSICLE® brand frozen confections in

Unilever's well-known and distinctive POPSICLE® product packaging (the "POPSICLE® Trade

Dress") which consists of: (a) a yellow background; (b) the POPSICLE® Logo (defined below); and

(c) a graphic depiction of the actual specific POPSICLE® product contained in the packaging. The

POPSICLE® Logo consist of an oval-shaped burst in which the POPSICLE® Mark appears in large,

white, rounded lettering against a red and blue background. Above the oval shaped burst containing

the POPSICLE® Mark, the words "The Original Brand" appear—this is also an element of the

POPSICLE® Logo.

16. Unilever has been marketing, distributing and selling its POPSICLE® brand

products and different varieties thereof in the POPSICLE® Trade Dress since at least as early as

1994.

17. One of the varieties of Unilever's POPSICLE® brand frozen confection treats is its

FIRECRACKER® brand frozen confections. Unilever has been marketing, advertising, promoting

and selling frozen confections under the FIRECRACKER® trademark ("FIRECRACKER® Mark")

since at least as early as 1989. Unilever is also the exclusive owner of a United States Trademark

Registration No. 3,346,742 for the FIRECRACKER® Mark for "frozen confections." This

registration is incontestable and serves as conclusive evidence of Unilever's exclusive right to use

the FIRECRACKER® Mark and the validity thereof.

18. Unilever markets, distributes and sells its FIRECRACKER® brand of frozen

confection treats in Unilever's well-known and distinctive product packaging (the

"FIRECRACKER® Trade Dress") in, among other channels, supermarkets, superstores and

drugstores.

19. The FIRECRACKER® Trade Dress is an inherently distinctive product packaging

which is comprised of the following original and distinctive elements: (a) an illustration featuring

three FIRECRACKER® products positioned at the center of the product packaging with the center

FIRECRACKER® frozen confection prominently positioned in the foreground vertically leaning

towards the right at an approximate 75 degree angle and pointing upwards and the remaining

FIRECRACKER® products in the background with the closest FIRECRACKER® product partially

obscured by the front FIRECRACKER® product and leaning at a 45 degree angle towards the right

while pointing upwards and the furthest FIRECRACKER® product also partially obscured by the

front FIRECRACKER® product and leaning towards the left at a 105 degree angle and pointing

upwards; (b) the FIRECRACKER® Mark depicted in red lettering and outlined in both white and

red with the letter "I" depicted as a red and white firecracker dotted with a blue star; (c) streams of

yellow fire emanating from various directions; (d) small yellow stars; (e) prominent yellow

background; (f) distinctive color scheme consisting of yellow, blue, white and red, and (g) the

POPSICLE® logo. Annexed hereto as Exhibit 1 is a photograph of the FIRECRACKER® Trade

Dress.

20. Unilever's well-known FIRECRACKER® Trade Dress is inherently distinctive and

not functional, has acquired distinctiveness and serves to readily distinguish Unilever's

FIRECRACKER® products from those of its competitors.

21. Unilever continuously and extensively advertises and promotes the

FIRECRACKER® Mark and FIRECRACKER® Trade Dress and the products sold thereunder.

Unilever and its predecessors have spent substantial sums advertising and promoting

FIRECRACKER® brand frozen confections in the United States.

22. Unilever operates a website at the domain name address www.popsicle.com, which

serves to advertise and promote its FIRECRACKER® brand products and provide nutritional and

dietary information and support to consumers of FIRECRACKER® frozen confection products.

23. Unilever's FIRECRACKER® products are currently available and sold to

consumers throughout this District, this State, and the United States.

24. Over the years, the volume of sales of goods in the United States sold under the

FIRECRACKER® Mark and FIRECRACKER® Trade Dress has been enormous. Moreover,

Unilever's FIRECRACKER® frozen confection products are a leading brand of frozen confection

products in the United States with many millions of dollars in sales in the United States since 1989.

25. The extraordinary success of Unilever's FIRECRACKER® brand products over

many years has fostered wide renown with the trade and public and the products sold under the

FIRECRACKER® brand have a reputation for being of the highest quality. As a result of such

success, and the long, continuous and exclusive use of the FIRECRACKER® Mark and

FIRECRACKER® Trade Dress in connection with the marketing of Unilever's frozen confection

products, Unilever's FIRECRACKER® products have also come to be identified by the trade and

public by and with the FIRECRACKER® Mark and FIRECRACKER® Trade Dress alone.

B. Defendant's Unlawful Activities

26. Upon information and belief, Defendant manufactures, markets, distributes and sells

frozen confection products under the name BOMB POPS sold through numerous mass retail trade

channels, such as supermarkets, drug stores, convenience stores and national chain stores including

the same retailers in which Unilever sells its FIRECRACKER® frozen confection products.

27. Upon information and belief, Defendant's BOMB POPS frozen confection products

are marketed in product packaging ("Infringing Product Packaging") which features simulations,

confusingly similar variations, or colorable imitations of the FIRECRACKER® product packaging,

and include distinctive and protectable elements of the FIRECRACKER® Trade Dress. Annexed

hereto as Exhibit 2 are photographs of Defendant's infringing BOMB POPS products which are

marketed, advertised and sold in the Infringing Product Packaging.

28. The Infringing Product Packaging mimics and imitates Plaintiffs FIRECRACKER®

Trade Dress. As evidence of Defendants' improper and infringing conduct, below is an illustrated

side-by-side comparison of the FIRECRACKER® Trade Dress and Defendant's Infringing Product

Packaging. Here, a picture is worth a thousand words as the side-by-side comparison demonstrates

Defendant's blatant and outrageous copying and misappropriation of the FIRECRACKER® Trade

Dress.

POPSICLE® FIRECRACKER®

Trade Dress

Infringing BOMB POPTrade Dress

The POPSICLE* Logo

The FIRECRACKER® Mait

depicted in led letteringoutlined in bothwhite andred

Similar An illustration featuring An illustration featuring Similar

distinctive three three BOMB POP distinctive

color scheme FIRECRACKERS products positioned at color schemeconsisting of productspositioned at the center ofthe product consisting ofyeSow, blue. the center of the product packaging yellow, blue,white andred packagng white andred

The s ark BOMB POP

depicted m red letteringoutlined in bothwhite

andred

Blue starsdesignelements

Beam soflightemanatingfrom variousdirections

Yellow background

FIRECRACKERS' Center FIRECRACKERS) FIRECRACKERS

productparba By fro2 en confection product partiallyobscured by the front prommentiy positionedm obscuredby the frontFIRECRACKER the foreground vertically FIRECRACKERS)productandleaning leaning towardsthe tight at product and leaning at atowards the left at a anapproxtmate75 degree 45 degree angle towards105 degree angle and ansjteand pointing the tight while pointingpositing upwards upwards upwards

BOMB POP product Center BOMB POP fn>2en BOMB POPproductpartially obscuredby confectionprommentiy partially obscuredby thethe front BOMB positioned m the frontBOMB POP

POP product and foreground vertically product andleanmg at aleanmg towards the leaning towards the tight at 45 degree angle towardsleft at a 105 degree an approxim ate 75 degree the tight while pointingangle and pointing angle andpomting upwardsupwards upwards

29. Defendant's Infringing Product Packaging also features the words "The Original" in

smaller white lettering directly above the BOMB POP name. The words "the Original" are also

depicted in large, white, roundedlettering (outlined in blue) against a red and blue, oval-shaped

device. This graphic was clearly designed to emulate Plaintiff's POPSICLE® logo thereby

increasing the likelihood of resultant consumer confusion.

30. To further promote consumer confusion, Defendant has also removed its Wells'

"Blue Bunny" house mark from the new packaging of its BOMB POP products, therebyincreasing

the likelihood that consumers will confuse its BOMB POPS products with Unilever's products.

31. Upon information and belief, Defendant has been and will continue to market,

promote, and sell its frozen confection products bearing the Infringing Product Packaging in the

same or substantially similar types, flavors, and styles of frozen confections that Unilever and its

predecessors have marketed and sold in product packaging imitating the FIRECRACKER® Trade

Dress.

32. Defendant's unauthorized and infringing use of the Infringing Product Packaging has

caused consumer confusion in the marketplace. Upon information and belief, consumers have been

confused and misledby Defendant's unauthorized and infringing use of the Infringing Product

Packagingto believe that Defendant's BOMB POPS brand products are sponsored by, licensed from

or otherwise affiliated with, Unilever and/or its FIRECRACKER® brand products.

33. Defendant's adoption and use of the Infringing Product Packaging for its BOMB

POP frozen confection products is likely to tarnish the FIRECRACKER® Trade Dress by creating

an association between Defendant's inferior products and Unilever and its FIRECRACKER®

products. Such an association will undermine and damage the substantialgoodwill and reputation

associated with Plaintiffand its FIRECRACKER® Trade Dress, which Unileverhas spent many

years and many millions of dollars to develop, and will dilute the distinctiveness of the

FIRECRACKER® Trade Dress.

C. Defendant's Unlawful Conduct is Willful and Intentional

34. Defendant's unlawful conduct is and continues to be knowing, deliberate and willful.

35. Defendant knew, or should have known, of Unilever's well-established and prior

rights in Unilever's FIRECRACKER® Trade Dress before Defendantadopted and began using the

InfringingProduct Packaging for and in connection with its competitive products.

36. Defendant's use of the Infringing Product Packaging in the United States occurred

long after Plaintiff and its predecessors began using the FIRECRACKER® Trade Dress and the

FIRECRACKER® Trade Dress had acquired enormous goodwill and become well-known.

37. Defendant adopted, commenced use of and is using and planning to use the

Infringing Product Packaging with the intentand purpose of trading on the extensive goodwill built

10

up by Unilever in its FIRECRACKER®Trade Dress and to reap the benefits of years of effort and

investment by Unilever to create public recognition of its product.

38. Defendant has continued to use the InfringingProduct Packagingnotwithstanding

Defendant's actual knowledge of Unilever's prior and exclusive rights to its FIRECRACKER®

Trade Dress, and despite Unilever providing Defendant with written notice of its objections to

Defendant's unlawful use of the Infringing Product Packaging and Unilever's demands that

Defendant cease the illegal conduct alleged in this complaint

39. Prior to the filing of this Complaint, Unilever's counsel sent a letter to Defendant,

dated February 17, 2014, advising Defendant of Plaintiff s exclusive rights in the FIRECRACKER®

Trade Dress and demanding that Defendant immediately cease its infringing activities. Annexed

hereto as Exhibit 3 is a copy of the demand letter sent to Defendant on February 17, 2014.

40. Despite being put on actual notice of Unilever's exclusive rights, Defendant, to date,

has not ceased its illegal activities in willful violation and disregard of Unilever's exclusive

intellectual property rights.

41. Despite being put on notice of Unilever's rights in its well-known

FIRECRACKER® Trade Dress, Defendant nonetheless willfully infringed, and continues to

willfully dilute and infringe, Unilever's FIRECRACKER® Trade Dress in violation of Unilever's

rights.

42. Upon information and belief, Defendant has adopted, commenced use of and is using

and planning to use the Infringing Product Packaging for its BOMB POP products with the intent

and purpose of commerciallyexploiting and trading upon the fame, recognition, reputation and

extensive goodwill built up by Unilever in the FIRECRACKER® Trade Dress and to reap the

benefits of years of effort and investment by Unilever to create public recognition of the

FIRECRACKER® Trade Dress.

11

43. Unless Defendant's illegal activities are enjoined by this Court, Defendant's

unlawful activities will cause and/or are likely to cause consumers to suffer harm and/or injury as a

result of use of Defendant's infringing BOMB POP products.

44. Defendant's use of the Infringing Product Packaging has caused, and is likely to

continue to cause confusion, mistake or deception, now and in the future, as to the origin, source,

and sponsorship of Defendant's products.

45. If Defendant is permitted to continue marketing, selling and distributing the

infringing BOMB POP products, Plaintiff is likely to lose future business from consumers who

mistakenly purchased and consumed Defendant's infringing BOMB POP products, which are of

inferior quality.

46. As a direct and proximate result of Defendant's unlawful conduct, Unilever has

suffered, and will continue to suffer, irreparable injury to its distinctive FIRECRACKER® Trade

Dress and to the goodwill and business reputation associated with its distinctive FIRECRACKER®

Trade Dress. Defendant's unlawful conduct will continue unless enjoined and restrained by this

Court. Unilever has no adequate remedy at law for Defendant's continuing violations of its rights as

set forth herein.

FIRST CLAIM FOR RELIEF

FEDERAL TRADE DRESS INFRINGEMENT

(15 U.S.C. § 1125(a)(1))

47. Unilever repeats and realleges paragraphs 1 through 46 above and incorporates them

by reference as if fully set forth herein.

48. Defendant's use of a copy, variation, simulation or colorable imitation of Unilever's

distinctive FIRECRACKER® Trade Dress infringes Unilever's exclusive rights in the distinctive

FIRECRACKER® Trade Dress, is likely to cause confusion, mistake, or deception, and constitutes

trade dress infringement, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

12

49. Defendant has used or intends to use a copy, variation, simulation or colorable

imitation of the FIRECRACKER® Trade Dress with full knowledge of the extensive prior use of

such trade dress by Unilever. Defendant's unlawfulconduct is and has been knowing, deliberate and

willful.

50. Defendant's conducthas causedand is causing immediate and irreparable injury to

Unilever, and to its goodwill and reputation, and will continue both to damage Unilever and to

confuse the public unless enjoined by this Court. Unilever has no adequate remedy at law.

SECOND CLAIM FOR RELIEF

FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN

(15 U.S.C. §1125(a)(D)

51. Unileverrepeats and realleges paragraphs 1 through 50 above and incorporates them

by reference as if fully set forth herein.

52. Defendant's use of the Infringing Product Packaging is likely to cause confusion,

mistake, or deception, and constitutes a false designation of origin, false description and false

representation of Defendant's goods, and a false representation that Defendant's goods originate

with or are sponsored, endorsed, licensed, authorized and/or affiliated or connected with Unilever in

violation of Section 43(a)(1) of the Lanham Act, 15 U.S.C. § 1125(a)(1). Defendant's unlawful

conduct is and has been knowing, deliberate and willful.

53. Defendant's conduct has causedand is causing immediate and irreparable injury to

Unilever, and to its goodwill and reputation, and will continue both to damage Unilever and to

confuse the public unless enjoinedby this Court. Unileverhas no adequate remedy at law.

13

THIRD CLAIM FOR RELIEF

DILUTION AND INJURY TO BUSINESS REPUTATION

(N.Y. General Business Law §360-1)

54. Unilever repeats and realleges paragraphs 1 through 53 above and incorporates them

by reference as if fully set forth herein.

55. Defendant's use of a copy, variation, simulation or colorable imitation of Unilever's

distinctive FIRECRACKER® Trade Dress has caused and will continue to cause dilution of the

distinctive quality of Unilever's FIRECRACKER® Trade Dress, resulting in injury to Unilever's

business reputation.

56. Defendant's use of a copy, variation, simulation or colorable imitation of Unilever's

distinctive FIRECRACKER® Trade Dress in connection with goods and services not controlled or

subject to control by Unilever has caused and will continue to cause dilution and/or injury to the

reputation of Unilever and Unilever's goods.

57. By reason of the foregoing, Unilever is entitled to injunctive relief under New York

General Business Law §360-1.

FOURTH CLAIM FOR RELIEF

DECEPTIVE TRADE PRACTICES

(N.Y. General Business Law §349)

58. Unilever repeats and realleges paragraphs 1 through 57 above and incorporates them

by reference as if fully set forth herein.

59. By reason of the acts and practices set forth above, Defendant has and is engaged in

deceptive trade practices or acts in the conduct of a business, trade or commerce, or furnishing of

goods and/or services in violation of §349 of the New York General Business Law.

60. The public is likely to be damaged as a result of the deceptive trade practices or acts

engaged in by the Defendant.

14

61. Unless enjoined by the Court, Defendant will continue said deceptive trade practices

or acts, thereby deceiving the public and causing immediate and irreparable damage to Unilever.

Unilever has no adequate remedy at law.

FIFTH CLAIM FOR RELIEF

COMMON LAW UNFAIR COMPETITION

62. Unilever repeats and realleges paragraphs 1 through 61 above and incorporates them

by reference as if fully set forth herein.

63. Upon information and belief, Defendant was aware of Unilever's prior rights, and

adopted and used the Infringing Product Packaging in willful disregard of Unilever's rights.

64. Upon information and belief, Defendant's use of the Infringing Product Packaging

has resulted in the misappropriation of and trading upon Unilever's goodwill and business reputation

at Unilever's expense and at no expense to Defendant.

65. The effect of Defendant's misappropriation of the goodwill symbolized by the

FIRECRACKER® Trade Dress is to unjustly enrich Defendant, damage Unilever and confuse

and/or deceive the public.

66. Defendant's conduct constitutes unfair competition with Unilever, all of which has

caused and will continue to cause irreparable injury to Unilever's goodwill and reputation unless

enjoined by this Court. Unilever has no adequate remedy at law.

WHEREFORE, Unilever demands judgment as follows:

1. Preliminarily and permanently enjoining Defendant, its employees, agents, attorneys,

successors, and assigns, and all those in active concert and participation with Defendant from:

15

(a) using and/or authorizing any third party to use the Infringing Product Packaging

and/or any other counterfeit, copy, simulation, confusingly similar variation, and/or colorable

imitation of Unilever's distinctive FIRECRACKER® Trade Dress, or any other trade dress

belonging to Plaintiff, in any manner or form, on or in connection with any business, products and/or

services, and/or in the marketing, advertising and/or promotion of same;

(b) imitating, copying or making any unauthorized use of Unilever's distinctive

FIRECRACKER® Trade Dress, or any other trade dress belonging to Unilever, and/or any copy,

simulation, variation and/or imitation thereof;

(c) making and/or displaying any statement and/or representation that is likely to lead the

public and/or the trade to believe that Defendant and/or the Defendant's products and/or services are

in any manner associated and/or affiliated with and/or approved, endorsed, licensed, sponsored,

authorized and/or franchised by or are otherwise connected with Unilever;

(d) using and/or authorizing any third party to use in connection with the rendering,

offering, advertising, and/or promotion of any goods, products, and/or services any false description,

false representation, and/or false designation of origin, and/or any marks, names, words, symbols,

devices, and/or trade dress which falsely associate such goods, products and/or services with

Unilever and/or tend to do so;

(e) diluting the distinctive quality of Unilever's distinctive FIRECRACKER® Trade

Dress or any other trade dress belonging to Unilever;

(f) registering and/or applying to register as a trademark, service mark, domain name,

trade name and/or other source identifier or symbol of origin, whether alone or in combination with

any other words or designs, any mark, trade dress and/or name that infringes on and/or is likely to be

confused with Unilever's distinctive FIRECRACKER® Trade Dress or any other trade dress

belonging to Unilever;

16

(g) engaging in any other activity constituting unfair competition with Unilever, and/or

constituting an infringement of Unilever's FIRECRACKER® Trade Dress or any other trade dress

belonging to Unilever, and/or of Unilever's rights therein; and

(h) aiding, assisting and/or abetting any other party in doing any act prohibited by sub

paragraphs (a) through (g).

2. Requiring Defendant to identify all distributors, retail establishments and/or

wholesale establishments to whom Defendant distributed and/or sold any products packaged in the

Infringing Product Packaging.

3. Directing that Defendant deliver for destruction any products, advertisements, and/or

other materials in its possession, and/or under its control, incorporating the Infringing Product

Packaging, and/or bearing simulations, variations and/or colorable imitations of Unilever's

FIRECRACKER® Trade Dress, used alone and/or in combination with other words and/or designs.

4. Directing that Defendant recall all products, packaging, labels, catalogs, containers,

advertisements, signs, displays and/or other related materials in its possession or under its control,

packaged in the Infringing Product Packaging, or any counterfeit, copy, simulation, confusingly

similar variation, or colorable imitation thereof.

5. Directing such other relief as the Court may deem appropriate to prevent the trade

and/or public from deriving the erroneous impression that any product and/or service manufactured,

sold, distributed, licensed and/or otherwise offered, circulated and/or promoted by Defendant is

authorized by Unilever and/or related in any way to Unilever's FIRECRACKER® products.

6. Directing that Defendant file with the Court and serve upon Unilever's counsel within

thirty (30) days after entry of such judgment, a report in writing under oath, setting forth in detail the

manner and form in which Defendant has complied therewith.

17

7. Awarding Unilever such damages as they have sustained and/orwill sustain by reason

of Defendant's tradedress infringement, trade dress dilution, and/orunfaircompetition.

8. Awarding Unileverall gains, profits, propertyand/or advantages derivedby

Defendant from such conduct; andpursuant to 15 U.S.C. § 1107, awarding Unilever an amount up to

three times the amount of the actual damages sustained as a result of Defendant's violation of the

Lanham Act.

9. Awarding Unilever exemplary and punitive damages to deter any future willful

infringement as the Court finds appropriate.

10. Awarding Unilever its costs and disbursements incurred in this action, including its

reasonable attorneys' fees.

11. Awarding Unilever interest, including pre-judgment interest, on the foregoing sums.

JURY DEMAND

Unilever hereby demands a trial by jury pursuant to Rule 38, Federal Rules of Civil

Procedure.

Respectfully submitted,

DUANE MORRIS LLP,

Gregory P. GuliaVanessa C. Hew

Mitchell A. Frank

1540 BroadwayNew York, New York 10036-4086Telephone: 212-692-1000Fax: 212-692-1020

Attorneys for PlaintiffConopco, Inc. d/b/a Unilever

18

^li I

NEW YORK

LONDON

SINGAPORE

PHILADELPHIA

CHICAGO

WASHINGTON, DC

SAN FRANCISCO

SILICON VALLEY

SAN DIEGO

BOSTON

HOUSTON

LOS ANGELES

HANOI

HO CHI MINH CITY

ATLANTA

Jluane]Vforris* BALTIMORE

WILMINGTON

MIAMI

BOCA RATON

PITTSBURGH

NEWARK

LAS VEGAS

CHERRY HILL

LAKE TAHOE

MYANMAR

OMAN

A CCC REPRESENTATIVE OFFICE

OF DUANEMORRIS

MEXICO CITY

ALLIANCE WITH

MIRANDA & ESTAVILLO

March 11, 2014

FIRM and AFFIUA TE OFFICES

STEPHANIE L. JACOBS

LEGAL ASSISTANT

212.471.1837

sljacobs@duanemorris.com

www. duanemorris. com

BY FEDEX

Natalie M. Hanlon-Leh

Faegre Baker Daniels LLP3200 Wells Fargo Center1700 Lincoln St.

Denver, CO 80203

Re: Infringement of POPSICLE® FIRECRACKER® Trade Dress

Dear Ms. Hanlon-Leh:

Enclosed please find another copy of Greg Gulia's February 17, 2014 letter, with theintended Exhibits.

We regret the oversight and appreciate your patience.

Sincerely,

Enclosure

/slj

Duane Morris llp

1540 BROADWAY NEW YORK, NY 10036-4086

Stephanie L. JacobsLegal Assistant

PHONE: +1 212 692 1000 FAX: +1 212 692 1020

NEW YORK

LONDON

SINGAPORE

PHILADELPHIA

CHICAGO

WASHINGTON, DC

SAN FRANCISCO

SILICON VALLEY

SAN DIEGO

BOSTON

HOUSTON

LOS ANGELES

HANOI

HO CHI MINH CITY

ATLANTA

February 17,2014

puanejVforris*FIRM and'AFFILIATE OFFICES

GREGORY P, C-ULIA

DIRECT DIAL: +1 212 692 1027

PERSONAL FAX: +1 212202 6014

E-MAIL: gpgulia@duanemotris.com

wwf. duanemonls. com

BALTIMORE

WILMINGTON

MIAMI

BOCA RATON

PITTSBURGH

NEWARK

LAS VBOAS

CHERRY HILL

LAKETAHOE

MYANMAR

OMAN

A OCCUW&SEmATlVEOFFlCZ

OFDUJWEMORMS

MFXimCTTY

ALUANCE WITH

MmAND A a. ESTAVJLLO

BY FEDEX

Mr. Mike Wells

President and Chief Executive Officer

Wells Enterprises, Inc.One Blue Bunny DriveLeMars, Iowa 51031

Re: Infringement of POPSICLE® FIRECRACKER® Trade Dress

Dear Mr. Wells:

This firm is outside trademark litigation counsel to Conopco, Inc. d/b/a Unilever("Unilever"), the owner of the famous POPSICLE®trademark ("the POPSICLE® Mark") andrelated trade dress in the United States. We are writing to you in connection with the recentchanges to Wells Enterprises' ("Wells") BOMB POPS packaging, which infringes the well-known trade dress used by Unilever in conjunction with its famous POPSICLE® Mark, and

especially, the trade dress for Unilever's POPSICLE® FIRECRACKER® frozen confections.

Unilever and its predecessors in interest have been selling frozen confection productsbearing the POPSICLE® Mark for more than ninety years. Sales of such products have beenenormous, and Unilever has invested tremendous amounts of time, money and other resources inconnection with the sale and advertising of its POPSICLE® brand products, As part of those

efforts, Unilever has developed a distinctive trade dress which is used on the packaging in whichproducts bearing the POPSICLE® Mark are sold ("the POPSICLE® Trade Dress"), consisting of:

(a) a yellow background:

DUANE MORRTS LIP

1540 BROADWAY NEW YORK, NY 10036-4086 PHONE: +1 212 692 1000 FAX: +1 212 692 1020

Mr. Mike Wells

Wells Enterprises, Inc.February 17,2014Page 2

(b) anoval-shaped burst inwhich the POPSICLE® Mark appears in whitelettering against a red andbluebackground ("the POPSICLE® Logo"); and

(c) a graphic depiction of theactual specific POPSICLE® product contained in thepackaging.

As a result of Unilever's extensive advertising, marketing and sale of products bearingthe POPSICLE® Trade Dress, that trade dress has come to be associated in the minds ofconsumerssolely with Unilever and its POPSICLE® brandproducts.

Unileverhas also developed a variation of the POPSICLE® Trade Dress whichis used inconnection with its POPSICLE® FIRECRACKER® frozen confection products ("the

FIRECRACKER® Trade Dress"). The FIRECRACKER® Trade Dress, a representation ofwhichis enclosed as Exhibit A, consists of:

(a) a yellow background;

(b) the POPSICLE® Logo;

(c) the mark FIRECRACKER® in bright red letters; and

(d) a grouping of three of the FIRECRACKER® products, which arered,whiteand blue rocket-shaped ice pops, pointed in an essentially upward direction, withone of the pops in the foreground and the other two pops to either side andslightly behind the one in the foreground.

As a result ofUnilever's extensive advertising, marketing and sale of its POPSICLE®

FIRECRACKER® productsbearing the FIRECRACKER® Trade Dress, that trade dresshascome to be associated in the minds of consumers solely with Unilever and its POPSICLE®

FIRECRACKER® products.

Unilever has taken notice that Wells has changed the packaging for its BOMB POPSfrozen confections so that it now closely simulates the FIRECRACKER® Trade Dress. Theprevious BOMB POPS packaging,a representation of which is enclosed as Exhibit B, consistedof:

(a) a blue background with no yellow anywhere on the package;

(b) the words "The Original" directlybeneath the BOMB POP name in a straightline against a solid red background;

DuaneMorrisMr. Mike Wells ^ L AWells Enterprises, Inc.February 17, 2014Page 3

(c) a depiction of two of the BOMB POP products, which are also red, white andblue rocket-shaped ice pops, side-by-side,which appear to be moving across thepackagefrom left to right, and with one appearingto he slightly forward of theother; and

(d) thewords "12 POPS" in bluelettering against a whitestar-shaped background.

The currentBOMB POPS trade dress ("the Infringing Trade Dress"), a representation ofwhich is enclosed as Exhibit C, consists of:

(a) a background which is now approximatelyhalf yellow;

(b)thewords "The Original" in white lettering againsta redandblue,oval-shapedbackground similar to ourclient's logo andagainin the lockup with "BombPop";

(c) the BOMB POP mark in bright red letters; and

(d) a grouping ofthreeBOMB POP products, pointed in an essentially upwarddirection, with one ofthepops intheforeground and the other two pops toeitherside of,; and slightly behind, the pop in the foreground.

Our client has also noted that your company has removed "Blue Bunny" from thepackaging.This curious change further increases the likelihood ofconfusion between the respectiveproducts.

The drastic changes made to the BOMB POP packaging sothat itnow closely simulatesthe FIRECRACKER® Trade Dress can lead only to the conclusion that Wells is deliberatelyattempting to create confusion in the marketplace, tomislead consumers into believing that itsBOMB POPS products are in fact Unilever's FIRECRACKER® productsor are somehowassociated with Unilever and itsPOPSICLE® products, and to trade upon the extremely valuablegoodwill which Unilever enjoys in its marks and trade dress and specifically, theFIRECRACKER® Trade Dress. Wells' intentions are made abundantly clear bythe fact thatBOMB POPS products being sold in the Infringing Trade Dress arenowbeing mixed inwithUnilever's POPSICLE® branded products on retail shelves, thereby increasing the likelihood ofconfusion.

Ourclient also hasrecognized Wells' use of "The Original" as anobvious attempt toimply thatyour company is the original icepopbrand which is clearly notthe case,

DuaneMorris |Mr. Mike Wells ~~ !

Wells Enterprises, Inc. IFebruary 17, 2014 fPage4 I

I

Lest there be any doubt asto theconfusion being created byvirtue of Wells' useofthe fInfringingTrade Dress,recentmarketresearch shows thatmore than 60% of respondents Ibelieved that BOMB POPS are madeby the same companythat makes POPSICLE® products. f

I|

Accordingly, we hereby demand, onbehalf ofUnilever, that you provide uswith written fconfirmation, by the close of business on February 25 ,2014, that Wells: |

(a) will ULTmediately cease all use of the Infringing Trade Dress; and f

(b) will not, in the future, utilize any trade dress which copies, simulatesor is Iotherwise confusingly similar to, the POPSICLE® Trade Dress or the !

FIRECRACKER® Trade Dress. [t

i

While we are hopeful that this matter can beresolved amicably, please be advised that jUnilever takes the protection of its intellectual property rights very seriously, and will, ifwe do Inot receive the written confirmation requested above, take whatever additional steps itdeems Iappropriate in. order to enforce its extremely valuable rights in thePOPSICLE® Trade Dress and jthe FIRECRACKER® Trade Dress. j

I

This letter is written without prejudice to any ofUnilever's claims, rights and/or \remedies, all of which areexpressly reserved. j

Very truly yours,

Gregory P. Gulia

GPG:slj

DM2W64743.1

Exhibit A

Exhibit B

Exhibit C

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