You are on page 1of 10

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI


EASTERN DIVISION

BLOOD & SAND, LLC )
)
Plaintiff, )
)
v. ) Case No. _______________
)
BLOOD & SAND LLC, )
) JURY TRIAL DEMANDED
Defendant. )


COMPLAINT

Plaintiff Blood & Sand LLC (Blood & Sand), for its Complaint against Defendant
Blood & Sand LLC (Defendant), hereby states as follows:
Introduction

This is a cause of action for trademark infringement. Blood & Sand owns trademark
rights in BLOOD & SAND when used in connection with bar services and restaurant services.
Defendant uses BLOOD & SAND as a trademark and trade name in connection with a bar and
restaurant. Blood & Sand believes and is informed that instances of actual confusion have
occurred because of Defendants use of BLOOD & SAND.
Parties
1. Blood & Sand is a Missouri limited liability company with a principal place of
business at 1500 St. Charles St., St. Louis, Missouri 63103.
2. Upon information and belief, Defendant is a New York limited liability company
with a principal place of business at 333 Franklin St., Buffalo, New York 14202.


Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 1 of 10 PageID #: 1

- 2 -
Jurisdiction And Venue

3. Subject matter jurisdiction exists pursuant to 28 U.S.C. 1331 (federal question)
and 1338(a) (trademarks). Blood & Sands claims arise under the laws of the United States;
specifically, 15 U.S.C. 1114 and 1125. Subject matter jurisdiction exists over Blood &
Sands remaining counts under 28 U.S.C. 1367(a) because the claims are so related that they
form part of the same case or controversy.
4. Upon information and belief, this Court has personal jurisdiction over Defendant
because Defendant markets its establishment over the internet, including to persons travelling
from Missouri who are familiar with Plaintiff. Defendant thereby committed the tortious acts
described herein in Missouri and in this judicial district, or otherwise established contacts with
this judicial district sufficient to make the exercise of personal jurisdiction proper.
5. Upon information and belief, venue is proper pursuant to 28 U.S.C. 1391(b) and
(c) because a substantial part of the events or omissions giving rise to claim occurred in this
judicial district, and a substantial part of property that is the subject of the action is situated in
this judicial district.
Facts Common To All Counts
Blood & Sands Mark
6. Blood & Sand owns the federal registration for the distinctive mark BLOOD &
SAND, U.S. Registration No. 4,350,076. Blood & Sand uses BLOOD & SAND in connection
with its bar and restaurant. The registration is valid and subsisting, and a copy of the registration
is attached to this Complaint as Exhibit A, attached and incorporated herein by reference.
7. Reg. No. 4,350,076 shows the mark BLOOD & SAND in a standard character
format and covers Bar services; Restaurant services in International Class 43.
Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 2 of 10 PageID #: 2

- 3 -
8. Blood & Sand has meticulously cultivated its brand. It has invested significant
time and resources developing BLOOD & SAND and the goods and services provided
thereunder.
9. Blood & Sand has become known in the industry for being modern, trendy bar
and restaurant services serving unique cocktails and dishes to its customers.
10. Consumers and others who use Blood & Sands goods and services recognize
BLOOD & SAND as an indicator of source, and associate BLOOD & SAND with Blood &
Sand.
11. Blood & Sand has a national customer base. Consumers from across the country
associate BLOOD & SAND with Blood & Sand.
12. Blood & Sand has been endeavoring the expansion of the BLOOD & SAND
brand nationally.
13. Blood & Sand further relies on the BLOOD & SAND mark to develop and
promote other related businesses. The goodwill engendered through the BLOOD & SAND
brand in the industry has allowed Blood & Sand to expand its business opportunities in a way
that would not have been possible without the BLOOD & SAND brand.
14. A Google search for blood and sand returns Blood & Sands website as the first
result. (Last accessed, July 30, 2014, see Exhibit B, attached hereto).
15. Blood & Sands website combines blood and sand with the city it resides in:
www.bloodandsandstl.com.
Defendants Infringing Activities
16. On March 17, 2014, Defendant filed for the registration of the limited liability
company Blood & Sand LLC with the Secretary of State of the State of New York. Upon
Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 3 of 10 PageID #: 3

- 4 -
information and belief, Defendant operates a bar and restaurant under that name that serves
spirits, wine, beer, and food from artisanal, high quality producers.
17. Upon information and belief, Defendant is owned by Joshua B. Miles, Jenna B.
Miles, Jon Karel, and Edward Forster.
18. Upon information and belief, long after Blood & Sand established its rights in
BLOOD & SAND, Defendant, without Blood & Sands consent, began using and intends to
continue using Blood & Sand, including as shown below, as a trademark and trade name in
interstate commerce in connection with bar and restaurant services related thereto (the
Infringing Mark).

19. Defendants trade name is identical to BLOOD & SAND.
20. Defendant admits it is a cocktail bar with a focus on ways of the past, blended
with the new. The dining menu for the restaurant is planned to be retold classics. See Exhibit
C, attached and incorporated herein by reference.
21. Defendant uses the same naming convention as Blood & Sand for its website,
combining the name blood and sand with the city name: www.bloodandsandbuffalo.com.
22. Thus, Defendants trade name, business plan, and internet naming convention are
all identical, or substantially similar, to Blood & Sands.
Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 4 of 10 PageID #: 4

- 5 -
23. A Blood and sand search on social media platforms such as Facebook results in
the two identically-named restaurants as the top two results, as shown below:



24. On or about July 12, 2014, Blood & Sand became aware of the existence of
Defendant and Defendants Infringing Mark via one of Blood & Sands New York customers
who mistook Defendant for Blood & Sand.
25. Upon information and belief, Defendant continues to use the Infringing Mark.
26. Upon information and belief, Defendant opened the doors to its restaurant on July
24, 2014 within one week of the filing of this complaint. Yet Blood & Sand is already aware
of numerous instances of actual confusion.
27. Upon information and belief and after a reasonable opportunity for further
investigation or discovery, Blood & Sand is likely to have further evidentiary support of
Defendants use of the Infringing Mark.
Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 5 of 10 PageID #: 5

- 6 -
COUNT I
Trademark Infringement Under 15 U.S.C. 1114

28. Blood & Sand incorporates by reference the above allegations.
29. Blood & Sand owns BLOOD & SAND and registrations therefor (U.S.
Registration No. 4,350,076).
30. Defendants use of the Infringing Mark in connection with competing services is
likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
association of Defendant with Blood & Sand, or as to the origin, sponsorship, or approval of
Defendants goods, services or commercial activities by Blood & Sand, as evidenced in part by
occurrences of actual confusion.
31. Defendants use of the Infringing Mark caused and continues to cause irreparable
harm to Blood & Sand, for which Blood & Sand has no adequate remedy at law.
32. Blood & Sand is entitled to recover the yet undetermined amounts specified in 15
U.S.C. 1117, including, at Blood & Sands option, the amounts in 15 U.S.C. 1117(c).
33. Blood & Sand has no adequate remedy at law inasmuch as money damages alone
would not compensate Blood & Sand for the permanent loss of its proprietary rights, established
goodwill and business reputation from the infringement caused by Defendants use of the
Infringing Mark. Unless this Court acts to enjoin Defendant, its acts herein complained of will
cause irreparable damage to Blood & Sands property rights, goodwill, and reputation and will
cause great and irreparable damage to Blood & Sand.
COUNT II
Trademark Infringement Under 15 U.S.C. 1125(a)

34. Blood & Sand incorporates by reference the above allegations.
Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 6 of 10 PageID #: 6

- 7 -
35. Blood & Sand owns BLOOD & SAND. Blood & Sand has used BLOOD &
SAND in connection with bar and restaurant services since at least as early as 2009. BLOOD &
SAND is distinctive of the goods and services of Blood & Sand.
36. Defendants use of the Infringing Mark in connection with competing services is
likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
association of Defendant with Blood & Sand, or as to the origin, sponsorship, or approval of
Defendants goods, services or commercial activities by Blood & Sand, as evidenced in part by
occurrences of actual confusion.
37. Defendants use of the Infringing Mark caused and continues to cause irreparable
harm to Blood & Sand, for which Blood & Sand has no adequate remedy at law.
38. Blood & Sand is entitled to recover the yet undetermined amounts specified in 15
U.S.C. 1117. Upon information and belief, Defendant was aware of Blood & Sands prior use
and registration of BLOOD & SAND, thus making Defendants infringement willful.
COUNT III
Common Law Trademark Infringement

39. Blood & Sand incorporates by reference the above allegations.
40. Blood & Sand owns BLOOD & SAND. Blood & Sand has used BLOOD &
SAND in connection with bar and restaurant services since at least as early as 2009. BLOOD &
SAND is inherently distinctive and/or has acquired secondary meaning and is a valid common
law trademark. Blood & Sand is the rightful owner of all common law rights in BLOOD &
SAND.
41. Defendant could have chosen any number of alternative non-infringing marks or
trade names, but instead chose to use the Infringing Mark, which is identical to BLOOD &
SAND.
Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 7 of 10 PageID #: 7

- 8 -
42. Defendants use of the Infringing Mark in connection with competing services is
likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or
association of Defendant with Blood & Sand or as to the origin, sponsorship, or approval of
Defendants goods or commercial activities by Blood & Sand, thereby causing damage to the
business reputation of Blood & Sand and diluting the distinctive qualities and values of Blood &
Sands mark.
43. Upon information and belief, Defendants use of the Infringing Mark is done with
improper motive and reckless indifference to Blood & Sands rights.
44. Defendants conduct has damaged Blood & Sand, and Defendant will be unjustly
enriched by its acts.
45. Defendants use of the Infringing Mark caused and continues to cause irreparable
harm to Blood & Sand, for which Blood & Sand has no adequate remedy at law.
Prayer For Relief
WHEREFORE, Blood & Sand demands judgment against Defendant as follows:
A. Defendant, its subsidiaries, affiliates, franchisees, licensees, officers, agents, sales
representatives, servants, employees, associates, successors and assigns, and all persons acting
under its control, by, through, under, or in active concert or in participation with Defendant,
pursuant to 15 U.S.C. 1116, be permanently enjoined from:
1. Using the Infringing Mark or any other mark or trade name that is likely to
cause confusion, mistake or deception with Blood & Sand or BLOOD & SAND;
2. Using any mark or trade name or doing any act or thing likely to confuse
the public that Defendants goods or services are in any way connected with Blood &
Sand, including, but not limited to, using on the worldwide web the Infringing Mark,
Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 8 of 10 PageID #: 8

- 9 -
BLOOD & SAND or any mark or trade name confusingly similar thereto, or printing,
publishing, promoting, lending or distributing any advertisement, whether written, audio
or video, which uses the Infringing Mark, BLOOD & SAND or any mark or trade name
confusingly similar thereto.
B. Defendant must deliver up for destruction all goods, advertising, literature, and
other forms of promotional material bearing or showing the Infringing Mark or a confusingly
similar mark or trade name pursuant to 15 U.S.C. 1118;
C. Defendant must change its trade name to a name that does not incorporate Blood
& Sand or any other confusingly similar name;
D. Defendant must pay Blood & Sand such damages as Blood & Sand has sustained
as a result of Defendants infringement of BLOOD & SAND;
E. Defendant must account for all gains, profits, and advantages derived from its acts
of infringement pursuant to 15 U.S.C. 1117 or, at Blood & Sands option, the damages found
in 15 U.S.C. 1117(c).
F. Finding this is an exceptional case under 15 U.S.C. 1117, and awarding Blood &
Sand a sum above the amount found as actual damages not exceeding three times such amount,
and its reasonable attorneys fees;
G. Defendant must pay Blood & Sand its costs and disbursements in bringing this
action and prejudgment and post-judgment interest as appropriate pursuant to 15 U.S.C. 1117;
H. Defendant must pay Blood & Sand punitive damages due to Defendants willful
infringement;
I. Defendant must report to this Court of its compliance of the foregoing within
thirty (30) days of judgment; and
Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 9 of 10 PageID #: 9

- 10 -
J. For such other and further relief that the Court deems just and proper.
JURY TRIAL DEMANDED
Plaintiff hereby demands a jury on all issues so triable.

Date: July 30, 2014 Respectfully submitted,

Thompson Coburn LLP


By: /s/ Michael L. Nepple
Michael L. Nepple, #42082
Matthew A. Braunel, #50711
Jason A. Wheeler, #52298
Sartouk H. Moussavi, #65577
One US Bank Plaza
St. Louis, MO 63101
(314) 552-6000
(314) 552-7000 (fax)

Attorneys for the Plaintiff,
Blood & Sand LLC



Case: 4:14-cv-01334-RWS Doc. #: 1 Filed: 07/30/14 Page: 10 of 10 PageID #: 10