Case 1:15-cv-03291-GBD Document 17 Filed 07/27/15 Page 1 of 32

Ronald L. Israel, Esq.

Melissa A. Salimbene, Esq.
Wolff & Samson PC
140 Broadway, 46th Floor
New York, NY 10005
973-325-1500
Attorneys for Plaintiffs
Wild Ginger Vegetarian Kitchen NY Inc. and
Wildginger Pan-Asian Vegan Restaurant, Inc.
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
WILD GINGER VEGETARIAN KITCHEN
NY INC. and WILDGINGER PAN-ASIAN
VEGAN RESTAURANT, INC.

Case No.: 1:15-cv-03291-GBD

Plaintiffs,

AMENDED COMPLAINT

vs.
JUJUBE TREE, INC., ZHONG GUI REN, WU
QU SONG, ZHOU, YANG FAN JIANG and
JOHN AND JANE DOES 1-10 and XYZ
CORPORATIONS 1-10,

Jury Trial Demanded

Defendants.
Plaintiffs Wild Ginger Vegetarian Kitchen NY Inc. and Wildginger Pan-Asian Vegan
Restaurant, Inc. (Plaintiffs), by and through their undersigned attorneys, for their Amended
Complaint against the defendants, allege as follows:
NATURE OF ACTION
1.

This is an action for trade dress infringement, copyright infringement, unfair

competition and other relief arising under the trademark, service mark and copyright laws of
the United States specifically, 15 U.S.C. 1051 et seq. (hereinafter Lanham Act) and under
the common law, as well as for civil conspiracy, deceptive business practices, dilution, use of
trade dress with intent to deceive, unjust enrichment, breach of fiduciary duty, breach of

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faithless servant doctrine, misappropriation of trade secrets and confidential and proprietary
information, tortious interference with prospective business relations and for an injunction
arising out of Defendants conspiracy, misappropriation and infringement of Plaintiffs trade
dress (including its menu and dcor for its popular restaurants), trade secret recipes, copyrightprotected menu and other proprietary information, all of which Defendants are using to deceive
the public into believing Defendants restaurant is affiliated with or connected to Plaintiffs
popular, pan-Asian vegan restaurants. Indeed, the individual defendants, which include former
employees of Plaintiffs, unlawfully conspired while employed at Plaintiffs restaurants to steal
Plaintiffs trade secret recipes, and other confidential and propriety information, and to copy
Plaintiffs distinctive dcor and plating style for its food, as well as duplicate Plaintiffs
copyrighted menu, all in order to unfairly compete with Plaintiffs by opening a knock-off
restaurant that Defendants are misleading the public into believing that is connected to or
affiliated with Plaintiffs popular restaurants. In light of Defendants willful and unlawful
conduct, Defendants copycat restaurant should be immediately shut down, and all of
Defendants ill-obtained profits should be disgorged and awarded to Plaintiffs.
JURISDICTION AND VENUE
2.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.

1331 and 1338 because Plaintiffs claims arise under the trade dress laws of the United
States, 15 U.S.C. 1051 et seq., and under the Copyright Act of 1976, as amended, 17 U.S.C.
101, et seq. This Court also has supplemental jurisdiction pursuant to 28 U.S.C. 1338(b)
and 1367 over Plaintiffs claims that arise under the laws of the State of New York. This Court
has personal jurisdiction over the parties to this action because (i) Plaintiffs claims arise in this
judicial district, and (ii) Plaintiffs and Defendants do business in this judicial district.

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3.

Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b) and (c),

and 28 U.S.C. 1400(a) because Plaintiffs claims arise in this judicial district, each party
conducts substantial business in this judicial district, witnesses and evidence are located within
this judicial district, and the acts complained of herein have taken place in this judicial district.
THE PARTIES
4.

Plaintiff Wild Ginger Vegetarian Kitchen NY Inc. is a corporation organized

under the laws of the State of New York with its principal place of business located at 380
Broome Street, New York, New York, 10013.
5.

Plaintiff Wildginger Pan-Asian Vegan Restaurant, Inc. is a corporation

organized under the laws of the State of New York with its principal executive office located at
530 D Grand Street, Apt. 5C, New York, New York, 10002 and its principal place of business
located at 112 Smith Street, Brooklyn, New York, 11201.
6.

Wild Ginger Vegetarian Kitchen NY Inc. and Wildginger Pan-Asian Vegan

Restaurant, Inc. are related entities with the same ownership and are collectively referred to
herein as Plaintiffs.
7.

Plaintiffs are the owners and operators of the long-established and popular

LuAnnes Wild Ginger restaurants a/k/a Wild Ginger Pan-Asian Vegan Caf and LuAnnes Wild
Ginger All-Asian Vegan offering pan-Asian vegan food and beverage items at Plaintiffs two
locations at 380 Broome Street, New York, New York (the Manhattan Location) and 112
Smith St, Brooklyn, New York (the Brooklyn Location) (both restaurants are collectively
referred to herein as Wild Ginger).
8.

Defendant Jujube Tree, Inc. (Jujube Tree, Inc.) is a corporation organized

under the laws of the State of New York with its principal place of business located at 35-02
30th Avenue, Astoria, New York, 11103. Upon Information and belief, Jujube Tree, Inc. is the
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owner and operator of the pan-Asian vegan restaurant Jujube Tree (Jujube) in Astoria,
Queens.
9.

Upon information and belief defendant Zhong Gui Ren (Ren) is an individual

residing in the City and State of New York, whose exact address is unknown to Plaintiffs at this
time. Until recently, Ren was employed by Plaintiffs at Wild Ginger where he served as the
Acting Manager and Kitchen Supervisor for over six years. Rens duties at Wild Ginger
included running the kitchen and supervising all orders, inventories, stocking, billing and
dealing with Wild Gingers vendors and suppliers. Upon information and belief, Ren is one of
the key individuals who orchestrated the conspiracy to unfairly compete with Plaintiffs by
opening Jujube.
10.

Upon information and belief defendant Wu Qu Song (Song) is an individual

residing in the City and State of New York, whose exact address is unknown to Plaintiffs at this
time.

Song was formerly employed by Plaintiffs until September of 2014 as a Main Chef at

the Wild Ginger Brooklyn Location.

11.

Upon information and belief defendant Zhou (Zhou) is an individual residing

in the City and State of New York, whose exact address and full name are unknown to
Plaintiffs at this time. Zhou was formerly employed by Plaintiffs as the Salad Chef at Wild
Ginger until in or about October 2014. Until recently, Zhous wife, Jiang Pan Deng, was also
employed by Plaintiffs at the Brooklyn Location where she worked as a packer of takeout
dishes.

Upon information and belief, defendant Ren lived with defendant Zhou while

employed by Plaintiffs and during which period they were conspiring to unfairly compete with
Plaintiffs.

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12.

Upon information and belief defendant Yang Fan Jiang (Jiang) is an

individual residing in the City and State of New York, whose exact address is unknown to
Plaintiffs at this time. Jiang transacts substantial business in this district at 35-02 30th Avenue,
Astoria, New York, 11103, the location of the Jujube restaurant. Upon information and belief,
Jiang is the sole owner of defendant Jujube Tree, Inc., and he formed Jujube Tree, Inc. on or
about October 27, 2014 for the purpose of operating the Jujube restaurant.
13.

Defendants Ren, Song, Zhou and Jiang are collectively referred to herein as the

Individual Defendants, and collectively, with defendant Jujube Tree Inc. are referred to as
Defendants.
14.

Ren, Song and Zhou are key former employees of Plaintiffs who, upon

information and belief, conspired with one another and with Jiang, personally and through
Jujube Tree, Inc., as well as with other unidentified individuals named as John and Jane Does
herein, to unfairly compete with Plaintiffs by replicating Plaintiffs Wild Ginger restaurant,
including Wild Gingers distinctive dcor, menu, plating and presentations, as well as
proprietary recipes at Defendants competing restaurant Jujube.
FACTUAL ALLEGATIONS
A.

PLAINTIFFS TRADE SECRETS AND CONFIDENTIAL AND PROPRIETARY

RECIPES
15.

Plaintiffs own and operate the very popular, long established, Wild Ginger

restaurants at the Manhattan Location which Plaintiffs opened in 2005 and at the Brooklyn
Location which Plaintiffs opened in 2008.
16.

Wild Ginger offers pan-Asian vegan food and beverage items, many of which

are proprietary recipes that were created and designed by one of Plaintiffs owners Xiang Ting
Fang (Tim). Tim also created and developed approximately two dozen secret sauces that are

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used in the dishes at Wild Ginger. In order to keep the sauce recipes a secret, Tim goes to Wild
Ginger every day where he personally prepares the sauces and he has not shared the recipes
therefor with anyone.
B.

PLAINTIFFS TRADE DRESS IN ITS MENU AND INTERIOR DCOR

17.

Plaintiffs Wild Ginger offers dine-in, takeout and delivery services. For this

purpose, Plaintiffs have designed a distinctive take-out menu which features select and unique
appetizers, entrees, noodle dishes, rice dishes, salads, side dishes, iced-drinks, herbal teas,
desserts and lunch specials (the Wild Ginger Menu), which menu items contain distinctive
names and descriptions. Copies of the Wild Ginger Menu for the Manhattan Location and
Brooklyn Location are attached hereto as Exhibit A. Other than the contact information for the
restaurant, the two Wild Ginger Menus are identical.
18.

The Wild Ginger Menu includes a two-inch wide front flap with the restaurants

name and phrase All-Asian Vegan on front left, and the International Kosher Counsel logo
and Wild Gingers telephone number on the front right of the flap. On the reverse side of the
flap are color photographs of five menu items offered at Wild Ginger. See Exhibit A.
19.

In developing and designing the Wild Ginger Menu, the photographs of Wild

Gingers menu items and the descriptions were carefully selected and uniquely crafted by
Plaintiffs. Indeed, the photographs on the menu flap are of actual dishes that were prepared and
photographed by Plaintiffs at Wild Ginger. See Exhibit A.
20.

In addition to its distinctive Wild Ginger Menu, Plaintiffs have developed a

unique presentation and plating style for the food items that are offered for dine-in and takeout
services (the Plating).

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21.

Plaintiffs have also developed a distinctive dining room atmosphere for its dine-

in customers at Wild Ginger (the Dcor). This includes a dining room featuring lime green
painted walls, red brick walls, and tongue and groove dark wood paneling.
22.

Plaintiffs have expended substantial time, money, effort and other resources

advertising, promoting, and marketing its goods and services and developing its distinctive
Wild Ginger Menu, Plating, Decor (collectively the Wild Ginger Trade Dress) and dine-in
experience for its customers.
23.

Through Plaintiffs substantial efforts, the Wild Ginger Menu, Plating, interior

Dcor, and the dine-in and takeout presentation have acquired substantial consumer recognition
such that they function as source identifying Wild Ginger Trade Dress and undoubtedly
distinguish Wild Ginger from other restaurants offering similar goods and services.
24.

In addition, Wild Ginger has obtained a great reputation and has been praised by

the consuming public as well as in publications such as New York Magazine for its Wild Ginger
Menu and its dining room ambiance.
C.

PLAINTIFFS COPYRIGHT
25.

In addition, to its protectable Wild Ginger Trade Dress, Plaintiff Wild Ginger

Vegetarian Kitchen NY Inc. owns copyright rights in and to the original Wild Ginger Menu it
created for its restaurants.
26.

The copyrighted work at issue is registered with the U.S. Copyright Office under

Copyright Registration Number TX 8-008-952, dated April 15, 2015. A copy of the copyright
registration is attached hereto as Exhibit B.
D.

DEFENDANTS CONSPIRACY AND INFRINGEMENT

27.

Upon information and belief, in the early fall of 2014, the Individual Defendants

engaged in an unlawful conspiracy to unfairly compete with Plaintiffs and misappropriate the
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goodwill of Wild Ginger by opening a competing restaurant, Jujube, and replicating Wild
Gingers Trade Dress, and trade secret and proprietary recipes at Defendants copycat
restaurant. At that time, defendants Ren, Song, Zhou were all employees of Plaintiffs at Wild
Ginger.
28.

Upon information and belief, defendant Jujube Tree Inc., which owns the Jujube

restaurant, was incorporated by defendant Jiang on or about October 27, 2014. Defendants
Song and Zhou ceased their employment with Plaintiffs shortly before or shortly after that date,
and Ren separated from Plaintiffs in early 2015.
29.

Upon information and belief, Defendant Jujube Tree Inc. and the Individual

Defendants own and/or are operating the restaurant Jujube which is blatantly infringing on
Wild Gingers Wild Ginger Trade Dress, copyrights and have misappropriated Plaintiffs trade
secrets and proprietary information. Upon information and belief, Jiang is the moving force
behind Jujube Tree Inc.s infringement and has authorized and approved the acts of
infringement, unfair competition and misappropriation.
30.

Defendants are utilizing Plaintiffs Wild Ginger Trade Dress, copyright

protected menu as well as trade secrets and proprietary and confidential information that the
defendants Ren, Song and Zhou gained access to during their employment by Plaintiffs at Wild
Ginger.
31.

Defendants have pirated the Wild Ginger Menu, duplicated all aspects of Wild

Gingers Plating and presentation of its food items, replicated the distinctive Wild Ginger
Dcor, misappropriated Wild Gingers proprietary recipes including its trade secret sauces, and
made efforts to recruit Wild Gingers staff and suppliers, all for the unlawful purpose of
profiting off of Wild Gingers popularity and goodwill.

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32.

Specifically, Defendants have copied substantial and key portions of Plaintiffs

Wild Ginger Menu for the Jujube menu. Indeed, Defendants are using and distributing to the
public a takeout and dine-in menu that is so shockingly indistinguishable from Plaintiffs Wild
Ginger Menu that there is no question that Defendants deliberately copied the Wild Ginger
Menu word for word, and even replicated the photographs of Wild Gingers food items
contained on the Wild Ginger Menu. Attached hereto as Exhibits A and C, respectively, are
copies of Plaintiffs Wild Ginger Menu and Defendants Jujube menu.
33.

Defendants menu folds exactly the same way as Plaintiffs Wild Ginger Menu,

including having a two-inch wide front flap that includes Defendants restaurants name and
the phrase Asian Vegan Cuisine under the name on the front left, the identically positioned
International Kosher Counsel emblem on the front right of the flap, and color photographs of
five menu items on the reverse side of the flap:
Plaintiffs Wild Ginger Menu (Front of Flap)

Defendants Jujube Menu (Front of Flap)

See Exhibits A and C.

34.

Also, at least two of the five photographs on the flap of Defendants menu are

photographs of food items that were prepared by Plaintiffs at Wild Ginger and those exact same
two photographs appear on Plaintiffs menu.

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Plaintiffs Wild Ginger Menu (Back of Flap)

Defendants Jujube Menu (Back of Flap)

See Exhibits A and C.

35.

Moreover, numerous original and unique elements in Plaintiffs Wild Ginger

Menu, including the names and descriptions of the menu items; names of section headings; and
the overall formatting, spacing and layout have been identically replicated in Defendants
takeout and dine-in menu.
36.

By way of example, although the order of the items slightly differ, Defendants

Jujube menu includes the same exact number of Starters as the Wild Ginger Menu and even
goes so far as to have the same exact names and descriptions of the menu items, and even use
the same italic font for the description:
Wild Ginger Menu
Starters
A1. Spring Rolls
A2. Summer Rolls Vietnamese style
raw rolls w/ shredded vegetables, bean
curd & basil leaves; w/ moo-shu sauce
A3. Yam & Taro Tempura Deep-fried
root vegetables w/ tempura sauce
A4. Steamed Spinach Shumai Openwrapped, minced vegetable
A5. Agedashi-Tofu Japanese-style
deep-fried bean curd w/ tempura sauce

Defendants Jujube Menu

Starters
A1. Spring Rolls
A2. Summer Rolls Vietnamese style
raw rolls w/ shredded vegetables, bean
curd & basil leaves, w/ moo-shu sauce
A9. Yam & Taro Tempura deep-fried
root vegetables w/ tempura sauce
A5. Steamed Spinach Shumai open
wrapped, minced vegetable
A10. Age-Tofu Japanese-style
deep-fried bean curd w/ tempura sauce
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A6. Stuffed Wontons Deep-fried

wontons w/ soy cheese, watercress, &
spinach
A7. Crispy Soy Protein Breaded, deepfried soy protein nuggets w/ plum sauce
A8. Grilled Eggplant w/ miso sauce
A9. Tofu Skin Wraps Shredded
vegetables & tofu rolled in tofu skin and
deep fried; w/ tangy sauce
A10. Pan-fried Vegetable Dumplings
A11. Seitan Skewers Tender seitan,
onions & bell peppers, grilled in satay
sauce
A12. Scallion Pancakes w/ homemade
mango salsa
A13. Oshitashi Cold, boiled spinach
rolls soy-citrus sauce.
A14. King-Oyster Mushrooms Batter
dipped king-oyster mushrooms, spicy
sauteed w/ salt pepper, scallions &
diced bell-peppers
A15. Steamed Vegetable Dumplings
A16. Curry Samosas Home-made
vegetable pastries w/ mint chutney dip
A17. Satay Tempeh Indonesian soy
cake, grilled in satay sauce
A18. Cooled Silken Tofu Mushroom
sauce, dry seaweed & sesame garnish
N7. Edamame Soy beans in the pod

A15. Stuffed Wontons Deep-fried

wontons w/ soy cheese & spinach
A17. Crispy Soy Protein Breaded, deepfried soy protein nuggets w/ plum sauce
A13. Grilled Eggplant w/ miso sauce
A18. Tofu Skin Wraps Shredded
vegetables & tofu rolled in tofu skin and
deep fried; w/ tangy sauce
A11. Pan-Fried Vegetable Dumpling
A14. Seitan Skewers Tender seitan,
onions & bell peppers, grilled in satay
sauce
A8. Scallion Pancakes w/ homemade
mango salsa
A3. Oshitashi Cold, boiled spinach rolls
soy-citrus sauce.
A19. King-Oyster Mushrooms Batter
dipped king-oyster mushrooms, spicy
sauteed w/ salt pepper, scallions &
diced bell-peppers
A6. Steamed Vegetable Dumplings
A16. Curry Samosas Home-made
vegetables pastries w/ mint chutney dip
A12. BBQ Satay Tempeh Indonesian soy
cake, grilled in satay sauce
A4. Cooled Silken Tofu Mushroom
sauce, beets, alfalfa & sesame garnish
A7. Edamame Soy beans in the pod

See Exhibit A and Exhibit C. Note that the order of the items on Defendants menu has been
reorganized in the above chart to demonstrate Defendants blatant replication of Plaintiffs
Wild Ginger Menu.
37.

The very fact that both Plaintiffs Wild Ginger Menu and Defendants menu

contain a period at the end of the description of Oshitashi when no other item descriptions on
either menu contain a period, is evidence that Defendants copied and pasted the item names
and descriptions from the Wild Ginger Menu, as this could not possibly be a mere coincidence.

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Similarly, there is an unnecessary semicolon in the descriptions for Tofu Skin Wraps on both
Plaintiffs menu and Defendants menu. See Exhibit A and Exhibit C.
38.

Just as Defendants copied the Starters section of Plaintiffs Wild Ginger

Menu, Defendants menu contains the same replication of Plaintiffs Soup & Salads,
Mains, Noodles, Rice & Rice Bowls, Lunch Specials, Side, Dessert, Homemade
Iced-drinks, Organic Hot Teas & Coffee, Juice, and Water & Soda sections, again
copying all the section titles, food item names descriptions, and even coping alpha-numeric
item numbers. Indeed, the Juice section was replicated verbatim, even down to the price
charged for each item. Also, Wild Gingers unique homemade iced drinks, including the
Virgin Mojito, Passion Fruit Lemonade and Thai Iced-Coffee all appear on Defendants
menu. See Exhibits A and C.
39.

Defendants descriptions of the menu items contents as described on

Defendants menu, also demonstrates that Defendants are using Plaintiffs trade secrets and
confidential and proprietary Wild Ginger recipes at Jujube. Moreover, many of the dishes that
Defendants have replicated and are serving at Jujube include Plaintiffs trade secret sauces that
Plaintiffs have gone to great efforts to keep confidential.
40.

Upon information and belief, defendants Ren, Song and Zhou surreptitiously

gained access to Plaintiffs trade secret recipes for its sauces while employed by Plaintiffs and
shared those recipes with Jiang and others. Defendants have misappropriated the trade secret
recipes by using them in the food served at Jujube.
41.

In addition to intentionally replicating the Wild Ginger Menu in its entirety,

Defendants are also blatantly plating and presenting the food served at Jujube in an identical
manner to the Wild Ginger Plating, even down to the detail of Defendants use of identical

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dishware to that used by Plaintiffs at Wild Ginger. Photographs posted by customers of Wild
Ginger and Jujube to the website Yelp.com demonstrate that the food items are being plated in
an identical manner:
Plaintiffs Wild Ginger Plating
Avocado Salad

Defendants Jujube Plating

Avocado Salad

Tofu Skin Wraps

Tofu Skin Wraps

Peanut Butter bomb

Peanut Butter bomb

Ice cream

Ice cream

Printouts of customer reviews of Wild Ginger on Yelp.com and customer reviews of Jujube on
Yelp.com are attached hereto as Exhibits D and E, respectively.
42.

Furthermore, Defendants are providing their food services at Jujube in a

virtually identical setting to that of Wild Ginger in that the interior dcor of Jujubes dining

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room mimics the look and feel of the distinctive Wild Ginger Dcor. For example, not only are
the interior walls of Jujubes dining room painted in the same lime green color and include the
same red brick walls as Wild Gingers dining room walls, but Jujubes interior even features
the same tongue and groove dark wood paneling that is found in the interior of Wild Ginger.
E.

ACTUAL CUSTOMER CONFUSION

43.

Defendants use of an identical menu, identical presentation and plating style,

and replication of distinctive elements of Plaintiffs Wild Ginger Dcor is in direct violation of
Wild Gingers valuable Trade Dress and copyright rights, as it is already creating consumer
confusion (and will continue to do so) as to the source of Jujubes goods and services.
44.

For example, Plaintiffs have already received inquiries from customers and

potential customers who believed that Defendants Jujube is affiliated with Plaintiffs Wild
Ginger.
45.

Additionally, consumers have posted comments to Yelp.com, among other

websites, which demonstrate their confusion. For example, one consumer reviewing Jujube on
Yelp.com stated I was ridiculously excited to see that Jujube Tree, of LuAnn's Wild Ginger
fame, opened in Astoria. Another commentator reviewing Jujube stated if youve ever gone
to Wild Ginger in Brooklyn, you'll know what to expect from Jujube Tree, and I suspect the
two restaurants might have the same owner, as many of the menu items, as well as choice of
dishware and tea cups, were near identical. A commenter on the website weheartastoria.com
stated about Jujube that the menu and pictures look extremely similar to Wild Ginger in
Williamsburg. It has to be the same owner right? Examples of such consumer confusion from
various internet sources are attached as Exhibit F.

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46.

Thus, consumers already are, and will continue to invariably believe that

Defendants restaurant Jujube is authorized, affiliated, connected or sponsored by or with

Plaintiffs Wild Ginger.
47.

Defendants aforementioned activities amount to blatant and willful unfair

competition, trade dress infringement and copyright infringement and violation of other state
and common laws.
F.

BREACHES OF FIDUCIARY DUTIES

48.

Defendant Ren as Acting Manager and Kitchen Supervisor at Wild Ginger,

defendant Song as a Main Chef at Wild Ginger, and defendant Zhou as the Salad Chef at Wild
Ginger, were all in management positions at Wild Ginger that are comparable to a senior level
executive at a corporation.
49.

Defendants Ren, Song and Zhou had access to Plaintiffs confidential and

proprietary information regarding recipes, operations, books and records, budgets, staff,
compensation, vendors, suppliers and clients. Thus, defendants Ren, Song and Zhou were in
positions of trust and confidence that makes them fiduciaries to Plaintiffs.
50.

Defendants Ren, Song and Zhou breached their fiduciary duties to Plaintiffs by

misappropriating and using at Jujube Plaintiffs trade secrets and confidential and proprietary
information they gained access to while employed at Wild Ginger in management positions.
51.

Defendants Ren, Song and Zhou also breached their fiduciary duties to Plaintiffs

by infringing on Plaintiffs Wild Ginger Trade Dress and copyright protected menu.
G.

DEFENDANT JIANGS PERSONAL LIABILITY

52.

Upon information and belief, defendant Jiang has actively and consciously

directed Jujube Tree, Inc.s wrongful actions described herein, and is individually liable for the
infringing and unlawful activities described herein. At all relevant times, defendant Jiang
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personally participated in, had the ability and right to control, direct and supervise the
infringing and unlawful activities herein alleged.
53.

In addition, upon information and belief, with regard to the acts alleged herein,

defendant Jiang and defendant Jujube Tree, Inc. are the agents of one another, and each was
acting within the scope, purpose, and authority of that agency and with the knowledge,
permission and consent of the other.
54.

Upon information and belief, there has existed such a unity of interest between

defendant Jiang and defendant Jujube Tree, Inc. that any individuality and separateness of the
individual defendant Jiang and corporate defendant Jujube Tree, Inc. has ceased, such that each
is the agent and alter-ego of the other in the acts hereinafter alleged.
55.

Upon information and belief, any and all acts herein ascribed to Jujube Tree,

Inc. or defendant Jiang were done with the permission, consent, knowledge and active
inducement on the part of the other defendant, and these defendants together acted as coconspirators and/or agents in the performance of the acts herein described.
56.

Upon information and belief, defendant Jiang has and continues to derive direct

financial benefits from the infringing and unlawful activities herein alleged.
H.

PLAINTIFFS NOTICE TO DEFENDANTS

57.

Immediately

after

discovering

Defendants

infringing

conduct

and

misappropriation of Plaintiffs trade secrets and proprietary and confidential information,

Plaintiffs counsel wrote to Jiang and Jujube Tree, Inc. by letter dated March 24, 2015 and
demanded Defendants cease and desist their conduct. A copy of the Match 24, 2015 letter is
attached hereto as Exhibit G.
58.

By letter dated April 3, 2015, Defendants counsel responded by admitting that

the menus at Defendants and Plaintiffs restaurants are substantially similar visually and that
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he has advised [Defendants] to re-design by its entirety said menu . . . . A copy of the April
3, 3015 letter is attached hereto as Exhibit H.
59.

Plaintiffs counsel responded thereto by letter dated April 9, 2015 stating that a

menu change alone would not be sufficient because Plaintiffs just discovered that several of the
individuals operating Jujube, defendants Ren, Song and Zhou herein, were current and former
key employees of Plaintiffs at Wild Ginger who, while employed by Plaintiffs, conspired to
unlawfully compete with Wild Ginger and misappropriate Wild Gingers goodwill by opening
up a knock-off restaurant. A copy of the April 9, 2015 letter is attached hereto as Exhibit I.
60.

In the April 9 letter, Plaintiffs counsel also listed Plaintiffs proprietary dishes

and recipes that were created by Plaintiffs for Wild Ginger, but were being replicated and
served by Defendants at Jujube, and demanded they be removed from Jujubes menu. See
Exhibit I at pp. 2-3. In addition, Plaintiffs counsel demanded that all of Plaintiffs proprietary,
trade secret sauces used in the dishes listed in the letter must be discontinued.
61.

Defendants have failed to comply with the Plaintiffs demands and are

continuing to infringe on Plaintiffs rights and misappropriate Plaintiffs trade secrets and
proprietary information.
COUNT I
FALSE DESIGNATION OF ORIGIN, UNFAIR
COMPETITION AND TRADE DRESS INFRINGEMENT
UNDER THE LANHAM ACT
62.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
63.

Defendants providing restaurant services using a menu, plating, and dcor that is

identical to Plaintiffs protectable distinctive and nonfunctional Wild Ginger Trade Dress
(Menu, Plating and Dcor) and copyright protected menu, as described above, is likely to
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cause, and has already caused confusion or mistake and/or to deceive in violation of Section
43(a) of the Lanham Act (15 U.S.C. 1125(a)).
64.

Defendants have misappropriated a valuable property right and the goodwill of

Plaintiffs and have attempted to falsely create confusion and the impression in the mind of
consumers that Jujube is associated with, affiliated with or sponsored or endorsed by Plaintiffs
and/or Wild Ginger, which it is not.
65.

Defendants activities misrepresent the nature, characteristics, or qualities of

Defendants restaurant services and food products.

66.

Defendants activities, as alleged herein, constitute unfair competition, false

designation of origin, trade dress infringement, and false description and representation in
violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
67.

Defendants have committed such acts of false designation of origin and false

description and representation deliberately, willfully and with full knowledge of Plaintiffs
prior use of, and rights in, its Wild Ginger Trade Dress and copyrighted Menu.
68.

The Individual Defendants direct, control, ratify, participate in, and are the

moving force behind the infringing activity, and are therefore personally liable for such
infringement.
69.

As a result of Defendants acts of unfair competition, Plaintiffs have suffered

and will continue to suffer serious and irreparable harm for which there is no adequate remedy
at law.

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COUNT II
COPYRIGHT INFRINGEMENT, 17 U.S.C. 106, 501
70.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
71.

By reason of Defendants acts of copyright infringement described above and

the continuation of such acts, Plaintiffs have sustained and will continue to sustain substantial
injury, loss and damage to its ownership rights in the copyrighted Wild Ginger Menu.
72.

Plaintiffs are entitled to a permanent injunction that restrains Defendants, their

officers, directors, agents, employees, representatives and all persons acting in concert with
them from engaging in further such acts of copyright infringement, including without
limitation, from distributing, promoting or otherwise using a menu which infringes on the Wild
Ginger Menu.
73.

Plaintiffs are entitled to recover from Defendants actual damages resulting from

Defendants acts of copyright infringement. Plaintiffs are currently unable to determine the full
extent of the monetary damages they have suffered by reason of Defendants acts of copyright
infringement.
74.

Plaintiffs are entitled to recover Defendants gains, profits and advantages

obtained as a result of their acts of copyright infringement. Presently, Plaintiffs are unable to
determine the full extent of those gains, profits and advantages.
75.

The Individual Defendants direct, control, ratify, participate in, and are the

moving force behind the infringing activity, and are therefore personally liable for such
infringement.

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76.

Unless enjoined by this Court, Defendants wrongful acts will continue and

Plaintiffs will continue to suffer irreparable harm for which they have no adequate remedy at
law.
COUNT III
COMMON LAW TRADE DRESS INFRINGEMENT AND
UNFAIR COMPETITION
77.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
78.

Plaintiffs own all rights, title, and interest in its Wild Ginger Trade Dress and

copyrighted Menu, as described above, including all common law rights therein.
79.

Defendants aforesaid acts constitute infringement of Plaintiffs rights in its

Wild Ginger Trade Dress and copyrighted Menu and tend to falsely describe or represent that
Defendants restaurant services and food products at Jujube are provided by, or sponsored by,
or approved by, or licensed by, or affiliated with or in some other way legitimately connected
to Plaintiffs and/or Wild Ginger and are of the same character, nature and quality as the
restaurant services and food products provided by Plaintiffs, thereby damaging Plaintiffs and
Plaintiffs reputation.
80.

Defendants consumer-oriented conduct was directed at the public, materially

misleading to the public, has affected the public interest of New York and has resulted in injury
to consumers in New York.
81.

Defendants acts complained of hereinabove constitute acts of trade dress

infringement and unfair competition against Plaintiffs under the common law of the State of
New York, which acts have been committed knowingly and willfully and have injured
Plaintiffs in its trade and business.

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82.

By reason of the aforesaid acts, Defendants have caused damage to Plaintiffs

and to the goodwill associated with Plaintiffs Wild Ginger Trade Dress and copyrighted Menu,
as well as injury to the public.
83.

Unless enjoined by this Court, Defendants wrongful acts will continue and

Plaintiffs will continue to suffer irreparable harm for which they have no adequate remedy at
law.
COUNT IV
CIVIL CONSPIRACY
84.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
85.

While employed by Plaintiffs, and with the intent of unfairly competing with

Plaintiffs, Defendants and their John Doe co-conspirators conspired and agreed to infringe on
Plaintiffs Wild Ginger Trade Dress and copyrighted Menu, misappropriate Plaintiffs trade
secrets and confidential and proprietary information, and to engage in other improper conduct
to Plaintiffs detriment.
86.

Defendants and their co-conspirators agreed to participate in this conspiracy and

took steps in furtherance of the conspiracy as described herein, including creating and
distributing a menu for Jujube Tree which is nearly identical to the copyrighted Wild Ginger
Menu, infringing on Plaintiffs Wild Ginger Plating and Dcor, and serving food items at
Jujube that were created using Plaintiffs trade secret and proprietary recipes.
87.

Defendants and their co-conspirators conduct was malicious, willful and

wanton.
88.

As a direct and proximate result of Defendants and their co-conspirators

participation in the conspiracy, Plaintiffs have suffered injury to its businesses.

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COUNT V
DECEPTIVE ACTS AND PRACTICES IN VIOLATION OF
SECTION 349 OF NEW YORK GENERAL BUSINESS LAW
89.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
90.

Plaintiffs are the exclusive owner of its trade dress and copyright protected

91.

Defendants use of a menu, plating and dcor that is identical to that of Plaintiffs

menu.

is deceptive and materially misleading to the public in that such use tends to falsely describe or
represent that Defendants restaurant services and food products at Jujube are provided by, or
sponsored by, or approved by, or licensed by, or affiliated with or in some other way
legitimately connected to Plaintiffs and/or Wild Ginger and are of the same character, nature
and quality as the restaurant services and food products provided by Plaintiffs, thereby
damaging Plaintiffs and Plaintiffs reputation.
92.

Defendants consumer-oriented conduct was directed at the public, materially

misleading to the public, has affected the public interest of New York and has resulted in injury
to consumers in New York.
93.

Defendants acts complained of hereinabove constitute acts of unfair

competition against Plaintiffs under the common law of the State of New York, which acts
have been committed knowingly and willfully and have injured Plaintiffs in its trade and
business.
94.

By reason of the aforesaid acts, Defendants have caused damage to Plaintiffs

and to the goodwill associated with Plaintiffs trade dress and menu, as well as injury to the
public.

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95.

Unless enjoined by this Court, Defendants wrongful acts will continue and

Plaintiffs will continue to suffer irreparable harm for which they have no adequate remedy at
law.
COUNT VI
DILUTION IN VIOLATION OF SECTION 360-L OF NEW
YORK GENERAL BUSINESS LAW
96.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
97.

Defendants have already caused confusion about the business association

between Plaintiffs and Defendants and their restaurants.

98.

This confusion has led customers and potential customers, as well as vendors

and suppliers to believe that Defendants and/or Jujube have a business relationship with
Plaintiffs.
99.

Due to that erroneous belief, Plaintiffs have suffered and will continue to suffer

injury to their business and their business reputation.

100.

Defendants actions, as stated above, have caused a likelihood of injury to

Plaintiffs business reputation in violation of New York General Business Law 360-l.
101.

By advertising their infringing menu, plating and decor and selling its restaurant

services and food products, Defendants also have caused dilution of the distinctive quality of
Plaintiffs Wild Ginger Trade Dress in violation of New York General Business Law 360-1.
102.

Unless enjoined by this Court, Defendants wrongful acts will continue and

Plaintiffs will continue to suffer irreparable harm for which they have no adequate remedy at
law.

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COUNT VII
USE OF TRADE DRESS WITH INTENT TO DECEIVE IN
VIOLATION OF SECTION 133 OF NEW YORK GENERAL
BUSINESS LAW
103.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
104.

Defendants are misleading the public into believing that a connection exists

between the Defendants and Plaintiffs and their restaurants by assuming, adopting and using
Plaintiffs Wild Ginger Trade Dress and copyrighted Menu with intent to deceive or mislead
the public, for advertising purposes and for the purposes of trade in violation of New York
General Business Law 133.
105.

By reason of the foregoing, Plaintiffs have been injured and has suffered

damages in an amount not yet ascertained and is entitled to the remedies provided for in New
York General Business Law 133.
106.

Unless enjoined by this Court, Defendants wrongful acts will continue and

Plaintiffs will continue to suffer irreparable harm for which they have no adequate remedy at
law.
COUNT VIII
UNJUST ENRICHMENT
107.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
108.

Upon information and belief Defendants have been and will continue to be

unjustly enriched as a result of their unauthorized use of Plaintiffs Wild Ginger Trade Dress
and copyrighted Menu, thereby depriving Plaintiffs of revenues they rightfully should receive
by virtue of the use of their trade dress and menu.
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109.

By the acts described herein, Defendants have retained revenues to which they

are not equitably or legally entitled and are thereby unjustly enriched at Plaintiffs expense, in
violation of the common law of the State of New York.
110.

Upon information and belief, Defendants conduct is malicious, intentional, and

111.

As a direct and proximate result of Defendants wrongful acts, Plaintiffs have

willful.

suffered irreparable harm for which they have no adequate remedy at law.
112.

Unless enjoined by this Court, Defendants wrongful acts will continue and

Plaintiffs will continue to suffer irreparable harm for which they have no adequate remedy at
law.
COUNT IX
BREACH OF FIDUCIARY DUTY
113.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
114.

As Acting Manager and Kitchen Supervisor, Main Chef and Salad Chef at Wild

Ginger, the defendants Ren, Song and Zhou owed Plaintiffs a fiduciary duty to act in Plaintiffs
best interests and to exercise requisite loyalty and care in discharging such duty.
115.

Through their aforementioned wrongful conduct, including acts of conspiracy,

self-dealing, misappropriation and infringement, defendants Ren, Song and Zhou have willfully
and maliciously, and with actual intent to harm Plaintiffs, violated their fiduciary obligations
and duties of loyalty and care to Plaintiffs.
116.

Defendants Ren, Song and Zhous wrongful acts in this regard constitute

transgressions of an ongoing nature, for which Plaintiffs have no adequate remedy at law, and

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unless defendants Ren, Song and Zhou are restrained and enjoined from further wrongful acts,
Plaintiffs will suffer irreparable injury.
117.

As a result of the forgoing, Plaintiffs have been injured and are entitled to

damages in an amount to be set forth at trial, including the disgorgement of the salaries
defendants Ren, Song and Zhou received from Wild Ginger, and restitution of all employment
related taxes, costs and expenses in connection with the Ren, Song and Zhous employment at
Wild Ginger during the period they were conspiring to unlawfully compete with Plaintiffs.
COUNT X
BREACH OF FAITHLESS SERVENT DOCTRINE
118.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
119.

Defendants Ren, Song and Zhou were all employed by Plaintiffs, and during that

time, defendants Ren, Song and Zhou were entrusted to act in the best interest of Plaintiffs in,
among other things, operating Wild Ginger, preparing the food items, overseeing and
supervising vendors and inventory, employees, and customers.
120.

As such, defendants Ren, Song and Zhou owed Plaintiffs duties of loyalty and

fidelity, were prohibited from acting in a manner inconsistent with their agency or trust and
were bound to exercise the utmost good faith and loyalty in performance of their duties to
Plaintiffs.
121.

As detailed above, in the fall of 2014, if not earlier, defendants Ren, Song and

Zhou, while all employed by Plaintiffs at Wild Ginger, embarked on an elaborate and
intentional scheme to deceive the public, infringe upon Plaintiffs Wild Ginger Trade Dress and
copyrighted Menu, misappropriate Plaintiffs trade secrets and proprietary information and

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otherwise engage in unfair competition by forming and operating the competing Jujube
restaurant.
122.

Defendants have misappropriated and converted Plaintiffs corporate assets for

Defendants own benefit, including customers and goodwill, by deceiving Plaintiffs customers
and suppliers.
123.

Defendants Ren, Song and Zhou have acted in a manner wholly inconsistent

with their employment with Plaintiffs and failed to exercise the utmost good faith in the
performance of their duties. By engaging in this improper conduct, defendants Ren, Song and
Zhou acted in a manner directly adverse to and wholly inconsistent with their agency
obligations to Plaintiffs.
124.

Because defendants Ren, Song and Zhou have acted as faithless servants and

violated their duties to Plaintiffs, defendants Ren, Song and Zhou must disgorge, and Plaintiffs
are entitled to recover, among other things, all sums paid as compensation, including salary,
from at least September 2014 until present.
COUNT XI
MISAPPROPRIATION OF TRADE SECRETS AND
CONFIDENTIAL AND PROPRIETARY INFORMATION
125.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
126.

Plaintiffs trade secrets and confidential and proprietary information, which are

entitled to protection, include Plaintiffs recipes for its food items and secret sauces served at
Wild Ginger, as well as information regarding Plaintiffs operations, staff compensation,
suppliers and clients

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127.

Plaintiffs trade secrets and confidential and proprietary information are known

only to Plaintiffs and are sufficiently secret.

128.

Plaintiffs trade secrets and confidential and proprietary information have

economic value.
129.

During their employment by Plaintiffs at Wild Ginger, defendants Ren, Song

and Zhou were afforded access to Plaintiffs confidential and proprietary information
concerning, among other things, their recipes, operations, staff compensation, suppliers and
clients.
130.

Upon information and belief, defendants Ren, Song and Zhou intentionally

misappropriated Plaintiffs confidential and proprietary information by disclosing it to the

others, including defendants Jiang and Jujube Tree Inc.
131.

Defendants have misappropriated and are using Plaintiffs trade secrets and

confidential and proprietary information for their own benefit at Jujube in order to unlawfully
compete with Plaintiffs.
132.

As a result of the misappropriation of Plaintiffs trade secrets and confidential

and proprietary information, Plaintiffs have been injured and are entitled to damages.
133.

Unless Defendants are enjoined from using Plaintiffs confidential and

proprietary information, Defendants will continue to profit from their dishonest and unlawful
exploitation of Plaintiffs confidential and proprietary information, and Plaintiffs will be
irreparably harmed.

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COUNT XII
TORTIOUS INTERFERENCE WITH PROSPECTIVE
BUSINESS RELATIONS
134.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
135.

As set forth herein, Defendants engaged in unlawful, tortious, unreasonable, and

unjustifiable acts intended to interfere with prospective business relationships between

Plaintiffs and third parties including Plaintiffs current and future customers.
136.

As set forth herein, Defendants intentionally and without justification or excuse,

interfered with Plaintiffs potential relationships with current and future customers by
misappropriating Plaintiffs confidential information and infringing on Plaintiffs Wild Ginger
Trade Dress and copyrighted Menu in a deliberate attempt to solicit and divert customers and
potential customers away from Plaintiffs, all for the purpose of causing harm to Plaintiffs.
137.

Defendants foregoing acts of tortious interference with prospective economic

advantage have caused, and continue to cause, injury and damages to Plaintiffs.
COUNT XIII
INJUNCTION
138.

Plaintiffs repeat and reallege each and every allegation contained in the

proceeding paragraphs of the Complaint as if they were set forth in full herein.
139.

Plaintiffs will be irreparably harmed if Defendants are not enjoined from

infringing upon Plaintiffs Wild Ginger Trade Dress and copyrighted Menu, misappropriating
Plaintiffs trade secrets and confidential and proprietary information, and from continuing to
steal and otherwise harm Plaintiffs business interests.

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140.

Plaintiffs do not have an adequate remedy at law for Defendants infringement,

misappropriation and their other ongoing misconduct.

141.

Plaintiffs are substantially likely to succeed on the merits of its claims against

Defendants.
142.

Entry of an injunction will serve the public interest.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs demands judgment in its favor and against Defendants as

follows:
1.

That Defendants Jujube Restaurant be immediately closed.

2.

That Defendants, and their members, officers, agents, servants, distributors,

affiliates, employees, attorneys and representatives and all those in privity or acting in concert
with Defendants, and each of them, be permanently enjoined and restrained from, directly or
indirectly:
(a)

Using the identical trade dress as Wild Ginger or any other trade dress
confusingly similar thereto, in connection with Defendants restaurant;

(b)

Using in any other way the Wild Ginger Menu or any other menu so
similar to Plaintiffs Wild Ginger Menu as to be likely to cause confusion,
mistake or deception;

(c)

Falsely designating the origin, sponsorship, or affiliation of the

Defendants services in any manner;

(d)

Otherwise competing unfairly with Plaintiffs in any manner;

(e)

Using any trade dress or menu which create a likelihood of injury to the
business reputation of Plaintiffs and the goodwill associated therewith;

(f)

Using any trade practices whatsoever including those complained of herein,

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which tend to unfairly compete with or injure Plaintiffs business and

goodwill pertaining thereto; and
(g)

Continuing to perform in any manner whatsoever any of the acts

complained of in this Complaint.

3.

That Defendants be required to pay to Plaintiffs compensatory damages for the

injuries sustained by Plaintiffs in consequence of the unlawful acts alleged herein and that such
damages be trebled pursuant to 15 U.S.C. 1117 because of the willful and unlawful acts as
alleged herein.
4.

That Defendants be required to pay Plaintiffs punitive damages in an amount to

be determined at trial
5.

That Defendants be required to account for and pay over to Plaintiffs all gains,

profits and advantages derived by them from the unlawful activities alleged herein.
6.

That Defendants be required to deliver for destruction all stationary, signs,

advertisements, promotional flyers, cards, brochures, menus, promotional materials, packaging,

labels and any other written materials which contain Defendants infringing menu, together
with all plates, molds, matrices and other means and materials for making or reproducing the
same.
7.

That Defendants be required to pay to Plaintiffs all of its litigation expenses,

including but not limited to reasonable attorneys fees and the costs of this action.
8.

That Plaintiffs be awarded such other and further relief as the Court may deem

just and proper.

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WOLFF & SAMSON, PC

140 Broadway, 46th Floor
New York, NY 10005
973-325-1500
Attorneys for Plaintiffs
Wild Ginger Vegetarian Kitchen NY Inc. and
Wildginger Pan-Asian Vegan Restaurant, Inc.

By: /s/ Ronald L. Israel________

RONALD L. ISRAEL
Dated: July 27, 2015
New York, New York

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