jfj toys v. genovese dba tromp toys - stomp rocket trademark complaint.pdf

8/16/2019 JFJ Toys v. Genovese dba Tromp Toys - Stomp Rocket trademark complaint.pdf

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

JFJ Toys, Inc., d/b/a D&L Company, LLC.

and Fred Ramirez.

Plaintiffs.

vs.

DON P. GENOVESEd/b/a TROMP TOYS

Defendants.

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COMPLAINT

Civil Action No: ________________

COMPLAINT

Plaintiffs, JFJ Toys, Inc.d/b/a D&L Company (“D&L”) by and through its attorneys,

bring this Complaint against Don P. Genovese d/b/a TROMP TOYS (hereinafter referred to

collectively as “TROMP”). D&L allege as follows:

NATURE OF THE ACTION

1. This action arises out of TROMP’s willful violation of D&L’s valuable intellectual

property. D&L is the manufacturer and distributor of the famous and award-winning

children’s toy product sold under the mark STOMP ROCKET (the “Word Mark”).

This compressed air rocket toy product was first sold under the Word Mark in the

early 1990s by Mr. Fred Ramirez, sole owner of D&L. Mr. Ramirez created the

STOMP ROCKET brand as a suggestive reference to launching the compressed air

Case 0:16-cv-61144-JAL Document 1 Entered on FLSD Docket 05/27/2016 Page 1 of 25


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toy rocket into the air by “stomping” on the attached bladder air pump. Since its

inception, The STOMP ROCKET has become an interactive toy and educational tool

which teaches children of all ages the principles of Science, Technology,

Engineering, and Math (STEM) and foster team-building skills through collaboration.

Through decades of hard work, innovation and marketing, Mr. Ramiriez has

developed STOMP ROCKET into a famous, worldwide staple in the toy and

education industry. Further, STOMP ROCKET has generated several follow-on

products including the Stomp Rocket Ultra, Stomp Rocket Ultra LED, Stomp Rocket

Jr. Glow, Super High-Performance Stomp Rocket, Dueling Stomp Rocket, and Stomp

Rocket Ultra Party (collectively, “STOMP ROCKET TOYS”).

2. In a willful effort to exploit the commercial goodwill and famous brand recognition

of the STOMP ROCKET TOYS, Defendants, Mr. Genovese willfully created,

marketed, and distributed the counterfeit inferior product TROMP ROCKET and its

sub-brands Tromp LED Rocket, Tromp Airplane Rocket, Tromp Glow Rocket,

Tromp Day Rocket, Tromp Astro Fling, Tromp Refills, and Tromp Flingzer

(collectively, “TROMP TOYS”). Defendant’s TROMP TOYS are nearly identical in

appearance, packaging, and design to the STOMP ROCKET. Defendants have

intentionally and willfully violated D&L’s copyright, and trademark rights by

duplicating STOMP ROCKET TOYS mark, design, packaging, and creative

elements. See EXHIBIT A.

3. The infringement and misappropriation of D&L’s intellectual property rights is both

deliberate and pre-meditated since Defendant's termination from D&L employment in

2001. During his time at D&L, Mr. Genovese had unfettered access to the product



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based on his skill set and duties with D&L, designs, customer lists, patterns, assembly

procedures, manufacturing processes, supplier list, business procedures, and

confidential and proprietary information relating to the STOMP ROCKET TOYS.

When terminated, Defendants remarked that he intended to “knock off STOMP

ROCKET TOYS like that” and in fact produced a counterfeit SUPER STOMP

ROCKET in 2009.

4. The Defendant continues to develop, market, and distribute his counterfeit TROMP

TOYS and has fraudulently registered two design patents, U.S. Patent No. D679,340

and D679,339 (collectively, “Design Patents”) in April 2013 covering the ornamental

design of the TROMP TOY. See EXHIBIT B.

5. The Defendant further misrepresents TROMP TOYS as STOMP ROCKET TOYS at

tradeshows and industry leading website such as and ,

.

Prominently displaying TROMP TOYS with “Stomp Rocket” either below or

adjacent to it. See EXHIBIT C

6. As set forth below, Defendants’ actions constitute willful copyright infringement in

violation of the federal Copyright Act of 1976, trademark infringement in violation of

the federal Lanham Act, as well as trademark, and trade secret violations under the

common laws of Florida.



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7. By this action, Plaintiffs seek fair redress for Defendants’ infringement of its

copyright and misuse and infringement of its trademark and Trade Dress, including

damages and injunctive relief, as allowable under Federal and Florida law.

THE PARTIES

8. Plaintiff JFJ Toys Inc. is a Delaware Corporation with a business address as in

Porterville, CA. D&L Company is a fictitious business name of JFJ Toys, as

registered with Tulare County, CA.

9. Plaintiff Fred Ramirez is a citizen and resident of Camp Nelson, California.

10. On information and belief, Defendant Don P. Genovese is an individual whose

residence is listed in Arroyo Grande, CA.

11. Defendant Don P. Genovese is a resident of the state of California and President and

owner of TROMP.

JURISDICTION AND VENUE

12. This is a civil action seeking monetary, declaratory, and injunctive relief for copyright

infringement under the Copyright Act of 1976 as amended 17 U.S.C. § 101, et seq.,

trademark infringement, unfair competition, and unfair trade practices under the

Lanham Act, 15 U.S.C. § 1001, and violation of the laws of the State of Florida,

Fla. Stat. §§§ 542.335(1)(b)(1), 501 et seq., and 688 et seq. governing Florida’s

deceptive and unfair trade practices, trademark, and trade secret laws.

13. On information and belief, this Court has personal jurisdiction over Defendants Mr.

Genovese pursuant to the laws of the State of Florida, including under Florida’s long-

arm statute, Fla. Stat. § 48.193, as a result of substantial contacts with the forum by

Defendants including the transaction of business in the state, the contracting to



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market, distribute and sell goods in the state, the derivation of substantial revenue

from goods used or consumed in the state, the causation of tortious injury in the state

by act or omission outside the state.

14. This court has subject matter jurisdiction to hear Plaintiffs’ copyright, trademark

infringement, and unfair competition claims under 17 U.S.C. §101 et seq.; 15

U.S.C. §1125(a) and (c); and 28 U.S.C. §§ 1331 and 1338.

15. Venue of this action is proper pursuant to 28 U.S.C. §§ 1400(a) and 1391(b).

FACTS

PLAINTIFFS’ STOMP ROCKET

16. In 1992, Fred Ramirez designed, developed and marketed the air-compressed toy

rocket he called STOMP ROCKET. The toy consists of two parts: a rocket and a

launcher. The rocket is constructed from a tube made of hollow plastic or soft foam

with the first end located at the bottom of the rockets and open, and the second end

with a curved “nose” configuration at the top of the air rocket. The other features of

the air rocket including the “Fins” or “wings”, constructed from plastic or foam

(again, depending on model) that are attached near the bottom end of the air rocket

tube. The Fins provide the rocket with stability during initial launch and through

flight. The launcher consists of a hard plastic tube that is connected at the first end by

the air rocket prior to launch and the second end to a flexible tubing connected to the

“air bladder.” Importantly, the diameter of the launcher tube is just slightly smaller

than the diameter of the air rocket tube to ensure adequate air tight integrity prior to

launch but the air rocket is flexible enough to separate from the launcher when

initiated.



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17. Ramirez’s STOMP ROCKET TOYS employs relatively simple technology. Launch

is initiated through a three-stage sequence. First, the air pressure inside the launcher

tube is increased by a user’s rapid compression of the air bladder, usually by

squeezing or stomping on the air pump. This rapid change of pressure causes the air

within the bladder to transfer through the translucent tubing into the launcher. This

rapid increase in air pressure within the launcher is expelled from the bottom of the

rocket tube and the air rocket is propelled or “lifted off”.

18. Over the years, D&L produced several versions of its STOMP ROCKET brand air

rocket toys, including the SUPER STOMP ROCKET, JUNIOR STOMP ROCKET

and ULTRA STOMP ROCKET (hereinafter referred to individually as “sub-brands”

or collectively as “STOMP ROCKET TOYS”). The materials used, the number of

rockets included with each product, and maximum altitude varies with each sub-

brand. STOMP ROCKET TOYS quickly transformed into a highly interactive

developmental toy product used by parents, educators, and STEM programs.

Throughout this transformation, the STOMP ROCKET TOY has emerged as the

dominant, and industry-leading air rocket toy system.

19. Over the years, STOMP ROCKET TOYS have sold more than 3.5 million units and

have been honored with many prestigious awards, including those from iParenting

Media (Hot Toy and Excellent Product Awards) and Creative Child Magazine (Top

Toy of the Year, Seal of Excellence and Preferred Choice Awards) for its high-quality

and innovative design.



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PLAINTIFFS’ INTELLECTUAL PROPERTY RIGHTS

20. D&L repeats and re-alleges each and every allegation in paragraphs 1 to 17 as set

forth above.

21. On February 2, 1999, D&L registered the word mark STOMP ROCKET with the

United States Patent and Trademark Office (“USPTO”), under U.S. Registration No.

2,221,554, for use in connection with “toys, namely, flying winged tubes and

structural parts therefor” on the Principal Register (the “Registration”). The

Registration was renewed on June 26, 2008. See EXHIBIT C. Under Section 7(b)

of the Federal Lanham Act, 15 U.S.C. §1057(b), the Registration constitutes prima

facie evidence of the validity of the Word Mark, of Mr. Ramirez’s ownership of

same, and of Mr. Ramirez’s exclusive right to use the Word Mark STOMP ROCKET

in commerce on or in connection with the goods specified in the Certificate of

Registration. In addition, on October 30, 2009, the Registration became incontestable

under 15 U.S.C. §1065. Subject to certain statutory limitations, the Registration now

constitutes conclusive evidence of the validity of the STOMP ROCKET mark, of Mr.

Ramirez’s ownership of same, and of Mr. Ramirez’s exclusive right to use the Word

Mark in commerce on or in connection with the goods within international class 028

as described in the Certificate of Registration.

22. By virtue of D&L’s substantially exclusive, continuous, and long-standing use of the

Word Mark STOMP ROCKET and pursuant to an exclusive license from Mr.

Ramirez, the Word Mark has become a reliable identifier of the source of the

Plaintiffs’ products.



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23. All packaging used for STOMP ROCKET TOYS includes the terms “STOMP

ROCKET” in bright yellow lettering with red shadowing. A portion of the terms

“STOMP ROCKET” is superimposed over a black parallelogram having a purple

border on the left and bottom edges. The border is further ornamented with yellow

dots and red stripes, triangles, and a trapezoid. Constructive notice of Plaintiffs’

registration and claim of ownership is provided by the symbol ® predominantly

displayed next to the term “STOMP”. This word mark and unique packaging design

creates a specific commercial impression to any prospective customer as to the source

of these iconic goods. See EXHIBIT D.

24. All packaging associated with STOMP ROCKET TOYS feature a distinctive and

primarily nonfunctional combination of design elements that collectively create a

particular Trade Dress (the “Trade Dress”). The front panel of the Trade Dress

contains the following elements: (a) dimensions of approximately 9.5” in width and

11.5” in height; (b) the STOMP ROCKET mark, which incorporates all STOMP

ROCKET TOYS occupying the upper left portion of the panel; (c) an enlarged image

of Plaintiffs’ red and yellow plastic air rocket in flight, occupying the middle- and

upper-right portions of the panel; (d) the photographic images of two young boys,

one jumping on the air bladder of the STOMP ROCKET toy, the other kneeling next

to the rocket launcher, holding a rocket in each hand while pointing skyward toward

Plaintiffs’ red and yellow plastic rocket in mid-flight, occupying the middle-left and

lower-left portions of the panel; (e) a distinctive red, blue, yellow, and white graphic

presentation of certain descriptive data occupying the lower right portion of the panel;

and (f) background art that is suggestive of an outdoor environment, with bright green



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coloration along the bottom of the panel, fading to a bright yellow midsection, fading

to a blue sky with white clouds along the top of the box. See EXHIBIT E.

25. The side and top panels of the Trade Dress contain the following additional elements:

(g) the same photographic image of a young boy jumping on the air bladder that

appears on the front panel; (h) the word Mark; and (i) the same enlarged image of

Plaintiffs’ red and yellow plastic rocket that appears on the front panel. See

EXHIBIT F.

26. The back panel of the Trade Dress contains the following additional elements:; (j) an

image of the package contents in the lower right portion of the panel; (k) an enlarged

image of Plaintiffs’ red and yellow plastic air rocket, here occupying the middle left

portion of the panel; and (l) a pictorial representation of various ways to use

Plaintiffs’ toy, occupying the middle-right portion of the panel.

27. The packaging for the STOMP ROCKET TOYS is unregisteed with the USPTO and

has remained constant since its original inception in 1992. D&L’s primary

significance of the STOMP ROCKET Trade Dress was to identify the source of

STOMP ROCKET TOYS and is protectable under 15 U.S.C. § 1125(a).

28. The creative designs and graphic elements on the packaging of STOMP ROCKET

TOYS are protected by copyrights with the United States Copyright Office, Reg. Nos.

VA 1-687-163, VA 1-934-278, and VA 0-928-758. These valid registrations

provides prima facie evidence of valid copyrights under 17 U.S.C. § 410(c). See

Exhibit G.



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DEFENDANTS’ INFRINGEMENT

29. During the 2016 New York Toy Fair it was discovered that TROMP was displaying,

selling, and promoting his counterfeit product from a display booth within the Jacob

K. Javits Convention Center Upon an initial web search, it was further revelaed that

TROMP TOYS were being marketed and sold through various sourcing agents,

global toy fairs and popular ecommerce websites such as AMAZON PRIME and

SEARS. Further, TROMP TOYS may still be purchased through Mr. Genovese’s

personal “Squarespace” page at < don-genovese.squarespace.com>. See Exhibit H.

30. An examination of the USPTO’s Trademark Electronic Search System (TESS)

revealed Defendants had registered the mark ‘TROMP” in stylized magneto lettering

on November 25, 2014 on the principal registration within international class 028 for

“childrens multiple activity toys” (Reg. No. 4,644,824) See EXHIBIT I.

31. On information and belief, Defendants manufactured, distributed, and sold “TROMP

TOYS” through the same channels of interstate commerce as STOMP ROCKET

TOYS at substantially discounted prices.

32. On February 25, 2016, D&L’s counsel sent a Notice of Infringment to Mr. Genovese

requesting to immediately cease and desist from continuing to market and sell his

counterfeit TROMP TOYS. Further included within the Notice of Infringement was a

fair and reasonable offer to enter into a Licening Agreement and demand for a one-

time payment to mitigate past damages and avoid future litigation. See EXHIBIT J.



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33. Defendants’ counsel sent a Response March 17, 2016, denying infringement and

asserting first use of the unique design as shown in Defendant’s granted design

patents (United States Design D679340 and United States Design D679339,

hereinafter referred as “design patents”). The design patents were issued on April 2,

2013 and are identical to the original ornamental design and appearance of the

STOMP ROCKET. Defendants’ counsel further proposed the following terms: (a)

Defendants will immediately cease using the brand name “TROMP” in connection

with its compressed air toy products; (b) agree not to use the name “TROMP” in

connection with the word “ROCKET” on any toy products; and (c) will abandon the

mark “TROMP” (Reg. No, 4,644,824) in exchange for a payment of $10,000 to

compensate any costs of re-branding by the Defendants. See EXHIBIT K.

34. On information and belief, Defendant Don P. Genovese is liable in his personal

capacity for the afore-described violations of Plaintiffs’ copyright, and trademark

rights because he personally directed and controlled TROMP TOYS, and had a

financial interest in the unlawful course of conduct.

COUNT I

COPYRIGHT INFRINGEMENT

35. Plaintiffs re-allege and incorporate herein the allegations in Paragraphs 1-26,

inclusive.

36. As described above, Plaintiffs own all rights, title, and interest in and to the artistic,

graphic, and literary elements of STOMP ROCKET TOYS and product packaging.

37. On information and belief, Mr. Genovese personally participated in the chain of

events by which Defendants TROMP infringed D&L’s copyrighted works.



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38. Mr. Genovese’ infringement was both intentional and willful in that he knew or

should have known that his intentional conduct infringed Plaintiffs’ copyright or,

alternatively, acted in reckless disregard to Plaintiffs’ rights.

39. Mr. Genovese, as President and owner of TROMP reaped profits from the sale of the

counterfeit TROMP TOYS which contained identical elements of STOMP ROCKET

TOYS and product packaging captured with the registered copyrights.

40. By reason of the infringements committed by Mr. Genovese, the Plaintiffs have

sustained and will continue to sustain substantial injury, loss and damage to its

ownership of its copyrighted works.

41. Plaintiffs are entitled to receive all appropriate injunctive relief, including but not

limited to the relief available under 17 U.S.C. § 502-505.

42. Plaintiffs D&L are further entitled to recover from Mr. Genovese the damages they

have sustained and will sustain, plus any gains, profits and advantages obtained by

the Defendants, as a result of the infringements alleged in this Complaint, including

but not limited to such damages and awards as are available under 17. U.S.C. §§504-

505.

COUNT II

TRADEMARK INFRINGEMENT


inclusive.

44. Defendants’ distribution, marketing, promotion, offering for sale, and sale of the

TROMP TOYS bearing the TROMP mark is likely to cause confusion, mistake, or

deception as to the source, affilitation, sponsorship or authenticity of Defendants’



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goods. Thus, D&L will continue to sustain substantial injury, loss and damage to its

ownership of its trademarked goods.

45. Plaintiffs are entitled to receive all appropriate injunctive relief, including but not

limited to the relief available under 15 U.S.C. § 1116.

46. Plaintiffs are further entitled to recover from Mr. Genovese the damages they have

sustained and will sustain, plus any gains, profits and advantages obtained by the

Defendants , as a result of the infringements alleged in this Complaint, including but

not limited to such damages and awards as are available under 15 U.S.C. § 1117(a).

COUNT III FALSE DESIGNATION OF ORIGIN UNDER THE LANHAM ACT

47. Plaintiffs re-alleges and incorporate herein the allegations in Paragraphs 1-26,

inclusive.

48. By using Plaintiffs’ Word Mark, and Design Mark on its packaging and in advertising

for Defendants’ TROMP TOYS, Defendants have falsely designated the origin of

their goods within the meaning of Section 43(a) of the Lanham Act, 15 U.S.C.

1125(a), thereby causing confusion, mistake or deception among consumers as to the

source or origin of Defendants’ products and/or as to the source or origin of

Plaintiffs’ products.

49. On information and belief, Defendants’ false designation of origin has caused

confusion, mistake, and/or deception among actual and prospective customers of

within the regular channels of commerce for compressed air toy rockets.

50. As a direct result of this false designation of origin, Plaintiffs have sustained and are

likely to continue to sustain monetary damages and irreparable injury to their

business, reputation and goodwill.



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51. Mr. Genovese is personally liable for these false designations of origin because he

personally directed, controlled, and participated in the offending activity by

marketing, advertising, and holding TROMP TOYS out to the public as STOMP

ROCKET.

52. Plaintiffs have no adequate remedy at law.

53. By reason of the foregoing, Defendant Mr. Genovese is personally liable to the

Plaintiffs for false designation of origin under the federal Lanham Act, and Plaintiffs

are entitled to Defendants’ profits, Plaintiffs’s damages, the costs of the action, plus

reasonable attorneys’ fees by reason of the willfulness of Defendants’ conduct, which

willfulness renders this an exceptional case within the meaning of Section 35(a) of

the Lanham Act, 15 U.S.C. 1117(a).

54. Plaintiffs are entitled under Section 36 of the Lanham Act, 15 U.S.C. § 1118 to a

court order providing that all product packaging, advertising, and promotional matter

bearing Plaintiffs’ STOMP ROCKET mark along with all means of making such

packaging, advertising, and promotional matter, be delivered up and destroyed.

COUNT IV

FALSE OR MISLEADING DESCRIPTION OF FACTS UNDER THE LANHAM ACT

55. Plaintiff re-alleges and incorporate herein the allegations in Paragraphs 1-26,

inclusive.

56. By using Plaintiffs’ STOMP ROCKET mark on all packaging, advertising, and

promotion of Defendants’ TROMP TOYS, Defendants have conveyed the false or

misleading message to consumers that Defendants’ TROMP TOYS originate with or

are sponsored by Plaintiffs; that Plaintiffs’ STOMP ROCKET TOYS originate with



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or are sponsored by Defendants; and/or that Plaintiffs’ and Defendants air rocket toys

are of the same nature and quality. Through this conduct, Defendants have engaged in

false or misleading representations and/or omissions of material fact within the

meaning of Section 43(a) of the Lanham Act, thereby causing confusion, mistake or

deception among consumers as to the source or origin of Defendants’ products and/or

as to the source or origin of Plaintiffs’ products.

57. Defendants’ false or misleading representations of fact are material in that consumers

perceive Plaintiffs’ STOMP ROCKET mark as symbolic of the nature and quality of

all goods sold thereunder and therein. The products performance and safety for which

STOMP ROCKET TOYS are known constitute two facets of product quality that are

very material to the process by which wholesale and retail consumers investigate,

shop for, purchase, and use these iconic air rocket toys.

58. On information and belief, Defendants’ false or misleading representations of fact

have caused confusion, mistake, and/or deception among actual and prospective

customers of Plaintiffs’ and Defendants goods in the wholesale, manufacturing, and

retail segments of the market for air rocket toys.

59. As a direct result of Defendants’ false or misleading representations of fact, Plaintiffs

have sustained and are likely to continue to sustain monetary damages and irreparable

injury to its business, reputation, and goodwill.

60. Defendant Mr. Genovese is personally liable for these false or misleading

representations of fact because he personally directed, controlled, and participated in

the unlawful activity.



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61. By reason of the foregoing, Defendants are liable to the Plaintiffs for false or

misleading descriptions of fact under the Federal Lanham Act, and Plaintiffs are

entitled to Defendants profits, Plaintiffs’s damages, the costs of the action, plus

reasonable attorneys’ fees by reason of the willfulness of Defendants’ conduct, which

willfulness renders this an exceptional case within the meaning of Section 35(a) of

the Lanham Act, 15 U.S.C. 1117(a).

62. Plaintiffs are entitled to treble damages and increased profits, plus attorneys’ fees, by

reason of the willfulness of Defendants’ conduct, which willfulness renders this an

exceptional case within the meaning of Section 35(a) of the Lanham Act, 15 U.S.C.

1117(a).


court order providing that all product packaging, advertising, and promotional matter

bearing Plaintiffs’ Word Marks and Design Mark associated with STOMP ROCKET

TOYS along with all means of making such packaging, advertising, and promotional

matter, be delivered up and destroyed.

Count VII

TRADE DRESS INFRINGEMENT UNDER THE LANHAM ACT


inclusive.

65. As described above, Mr. Ramirez owns all rights, title and interest in and to the Trade

Dress. D&L owns an exclusive license to use the Trade Dress in commerce.



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66. D&L’s use of the Trade Dress in commerce, pursuant to exclusive license from Mr.

Ramirez, has been substantially exclusive, continuous, and long-standing and

represents the extensive goodwill built up by Plaintiffs.

67. Plaintiffs’ Trade Dress is primarily non-functional.

68. Plaintiffs’ Trade Dress has acquired secondary meaning in that consumers have come

to recognize the well-known appearance and arrangement of the design elements of

Plaintiffs’ STOMP ROCKET TOYS packaging, and associate that appearance and

arrangement with a single source. Further, the Defendants’ willful and intentional

copying of the Trade Dress provides prima facie evidence of distinctiveness.

69. On information and belief, Defendants have created a Trade Dress through its product

packaging which was created to intentionally confuse and intentionally deceive

consumers as to the source of the air rocket toys.

70. By using Plaintiffs’ Trade Dress on packaging and in advertising for Defendants’ air

rocket toys, Defendants have falsely designated the origin of goods and falsely or

misleadingly represented the source, origin, nature, and quality of goods, thereby

violating Plaintiffs’ Trade Dress rights under Section 43(a) of the federal Lanham

Act. The Defendants’ continued sales of TROMP TOYS will continue to cause

confusion, mistake or deception among consumers as to the source or origin of

Defendants’ products, and/or as to the source or origin of Plaintiffs’ products.

71. On information and belief, the Defendants’ Trade Dress created through his product’s

packaging has caused confusion, mistake, and/or deception among actual and

prospective customers as to the source of goods.



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72. As a direct and proximate result of Defendants’ actions, the Plaintiffs have sustained

and are likely to continue to sustain monetary damages and irreparable injury to its

business, reputation and goodwill.


74. By reason of the foregoing, Defendants are liable to the Plaintiffs for Trade Dress

infringement under Sections 43(a)(1)(A) and (B) of the federal Lanham Act, 15

U.S.C. §1125(a)(1)(A) and (B), and Plaintiffs are entitled to Defendants’ profits,

Plaintiffs’ damages, the costs of the action, plus reasonable attorneys’ fees by reason

of the willfulness of Defendants’ conduct, which willfulness renders this an

exceptional case within the meaning of Section 35(a) of the Lanham Act, 15 U.S.C. §

1117(a).


reason of the willfulness of Defendants’ conduct, which willfulness renders this an

exceptional case within the meaning of Section 35(a) of the Lanham Act, 15 U.S.C.

1117(a).


court order providing that all Defendants’ product packaging, advertising, and

promotional matter bearing Plaintiffs’ Trade Dress, along with all means of making

such packaging, advertising, and promotional matter, be delivered up and destroyed.

Count VIII

TRADEMARK DILUTION

77. Plaintiffs re-allege and incorporate herein the allegations in Paragraph 1-26, inclusive.



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78. Plaintiffs’ STOMP ROCKET mark is symbolic of the extensive goodwill and

consumer recognition built up by Plaintiffs through years of advertising, promotion

and sales. Plaintiffs have so used the STOMP ROCKET mark in connection with its

toys that the public has come to associate the mark exclusively with the Plaintiffs, and

as indicating that the goods offered under the mark originate with Plaintiffs.

79. As a result of its prominent and continuous use, Plaintiffs’ distinctive Word Mark has

become famous across the nation within meaning of 15 U.S.C. §1125(c).

80. Defendants’ use of Plaintiffs’ famous STOMP ROCKET mark is for a commercial

purpose.

81. Defendants’ use of Plaintiffs’ famous STOMP ROCKET mark has caused, and is

likely to continue to cause dilution by blurring and/or by tarnishment of the

distinctive qualities of Plaintiffs’ STOMP ROCKET mark, and/or harm to the

reputation of Plaintiffs’ STOMP ROCKET mark.

82. By reason of the foregoing, Defendants are liable to the Plaintiffs for trademark

dilution under Section 43(c) of the Lanham Act, 15 U.S.C. 1143(c), and Plaintiffs are

therefore entitled to preliminary and permanent injunctive relief under Section 34(a)

of the Lanham Act, 15 U.S.C. 1116(a); monetary damages, profits, and costs under

Section 35(a) of the Lanham Act, 15 U.S.C. 1117(a); and also to the remedies set

forth in 15 U.S.C. §1118.


reason of the willfulness of Defendants infringement, which willfulness renders this

an exceptional case within the meaning of Section 35(a) of the Lanham Act, 15

U.S.C. 1117(a).



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84. In view of the willfulness of Defendants’ infringement, Plaintiffs are entitled under

Section 36 of the Lanham Act, 15 U.S.C. §1118 to a court order providing that all

Defendants’ product packaging, advertising, and promotional matter bearing

Plaintiffs’ STOMP ROCKET mark, along with all means of making such packaging,

advertising, and promotional matter, be delivered up and destroyed.

Count IX

TRADEMARK INFRINGEMENT UNDER COMMON LAW


inclusive.

86. As described above, Plaintiffs own all rights, title and interest in and to the STOMP

ROCKET mark, and the STOMP ROCKET TOYS marks.

87. As described above, the trademarks are distinctive, and Plaintiffs have built up

valuable goodwill in the trademarks.

88. Defendants’ use of the trademarks infringes Plaintiffs’ rights therein and has and will

continue to cause confusion, mistake, or deception among consumers as to the source

and origin of Defendants’ counterfeit STOMP ROCKET brand air rocket toys in

violation of Fla. Stat . § 501 et seq..

89. Defendants conduct deceived or is likely to deceive, and caused or is likely to cause,

confusion or mistake among actual and prospective consumers of the Plaintiffs’

products by passing off Defendants’ products as being manufactured, sponsored or

otherwise approved by or connected with the Plaintiffs.

90. As a direct and proximate result of Defendants’ infringements of Plaintiffs’ common

law trademark rights under the State of Florida and other common law, Plaintiffs have



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sustained and are likely to continue to sustain monetary damages and irreparable

injury to its business, reputation and goodwill.

91. Defendant Mr. Genovese is personally liable for the infringement of Plaintiffs’

Trademarks because he personally directed, controlled, ratified and participated in the

infringing activity.


93. By reason of the foregoing acts, Defendants are liable to Plaintiffs for trademark

infringement and Plaintiffs are therefore entitled to preliminary and permanent

injunctive relief and monetary damages.

94. Plaintiffs are entitled to exemplary and punitive damages by reason of Defendants’

willful, reckless, deliberate and intentional conduct.

Count X TRADE SECRET

TRADE DRESS INFRINGEMENT UNDER COMMON LAW


inclusive.

96. Defendants’ actions constitute misappropriation of trade secrets under Florida

common law. .

97. Upon information and belief, Defendants used Plaintiffs esigns, customer lists,

patterns, assembly procedures, manufacturing processes, supplier list, and business

procedures to help design, develop, and mark TROMP TOYS in violation of Fla. Stat.

§ 688 et seq..

98. As a direct and proximate result of Defendants’ infringements of Plaintiffs’ common

law trade secret rights under the State of Florida, Plaintiffs have sustained and are



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likely to continue to sustain monetary damages and irreparable injury to its business,

reputation and goodwill.


100. By reason of the foregoing acts, Defendants are liable to Plaintiffs for Trade Dress

infringement and Plaintiffs are therefore entitled to preliminary and permanent

injunctive relief and monetary damages.

101. Plaintiffs are entitled to exemplary and punitive damages by reason of Defendants’

willful, reckless, deliberate and intentional conduct.

Count XI

DECEPTIVE AND UNFAIR TRADE PRACTICES UNDER COMMON LAW


inclusive.

103. As described above, Defendants have engaged in unfair trade practices by

representing to consumers that their products have a source, nature, and quality that

they do not have.

104. Defendants have engaged in false and misleading representations and omissions of

material fact to consumers and have engaged in deceptive conduct.

105. Defendants’ false and misleading representations and deceptive conduct are material

in that the same have caused and are likely to cause prospective consumers of the

Plaintiffs’ products to be deceived as to the identity of the person to whom rights

belong and as to the level of quality of the product.



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106. Defendants have disparaged the goods and services and business of Plaintiffs through

false and misleading representations of material facts.

107. By reasons of belief, the Defendants provided knowingly false and misleading

representations of fact and conduct in violation of Florida’s Deceptive and Unfair

Trade Practices Act , Fla. Stat. § 501.201 et seq.

108. As a direct and proximate result of said misleading and deceptive conduct, the

Plaintiffs, as well as consumers, have sustained and are likely to continue to sustain

damages.

109. Defendant is personally liable for the afore-described deceptive unfair trade practices

because he personally directed, controlled, and participated in the unfair activity.


111. Pursuant to Florida’s Deceptive and Unfair Trade Practices Act §§ 501.207 –

501.2075, the Plaintiffs are entitled to enjoin Defendants’ unlawful conduct as well as

obtain compensatory damages, punitive damages, and attorney’s fees.

Count XIII UNJUST ENRICHMENT


inclusive.

113. Plaintiffs have been denied financial compensation from the proceeds of the

Defendants’ counterfeit TROMP TOYS, which has benefited from the Plaintiffs’

trademark rights. The circumstances are such that equity and good conscience

require the Defendants to make restitution in an amount to be proven at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against each Defendant as follows:



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A. Preliminarily and permanently enjoining and restraining Defendants, their

officers, directors, shareholders, agents, employees, and attorneys and all those acting in concert

with them from:

1. Reproducing, publicly distributing, publicly displaying, and preparing any

derivative work based on Plaintiffs’ Work, in any medium, including but not limited to print and

online;

2. Producing, marketing, selling, distributing any product whose packaging

contains any portion of Plaintiffs’ Work;

3. Using Plaintiffs’ Trademarks, Trade Dress, or any colorable imitation

thereof.

B. Ordering that Defendants file with this Court and serve upon Plaintiffs within 20

days after the service of such injunction, an affidavit, sworn to under penalty of perjury, setting

forth in detail the manner and form in which Defendants have complied with such injunctions.

C. Ordering an accounting of all revenues received by each Defendant as a result of

its unlawful conduct.

D. Awarding Plaintiffs: 1) Defendants’ profits realized as a result of the copyright

and trademark infringements, false advertising, unfair competition, unjust enrichment and/or

each of the Defendants’ deceptive practices, or in the Court’s discretion, such sum as the Court

finds to be just; 2) actual damages sustained by Plaintiffs, or such other amount as the Court may

find just; and 3) the costs of this action.

E. Awarding Plaintiffs increased damages and profits, and reasonable attorneys’

fees, pursuant to 15 U.S.C. § 1117(a)-(c).

F. Awarding Plaintiffs the relief set forth in 15 U.S.C. §1118.



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G. Awarding Plaintiffs prejudgment and post-judgment interest on any monetary

award in this action.

H. Granting such other and further relief as to this Court deems just and proper.

JURY DEMAND

Plaintiffs hereby demand a trial by jury on all claims for which there is a right to jury trial.

Respectfully Submitted,

By: /s/ Andrew Rapacke/Andrew S. Rapacke, Esq.

Attorney for PlaintiffsTHE RAPACKE LAW GROUP, P.A.

Florida Bar No. 0116247

618 E. South Street, Suite 500Orlando, Florida 32801Telephone: 407-801-9368Facsimile: 407-992-6101Email:[email protected]

Dated: May 27, 2016


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