Case 1:11-cv-00539-SM Document 1

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

ORIGINAL GOURMET FOOD COMPANY, INC. Petitioner, v. JELLY BELLY CANDY COMPANY Respondent.

CIVIL ACTION NO. 1:11-cv-0539 JURY DEMAND

PETITION FOR DECLARATORY J UDGMENT DEMAND FOR JURY TRIAL NOW COMES the Petitioner, Original Gourmet Food Company, Inc., (Original Gourmet), through its attorneys, Daniels Patent Law, PLLC, and pursuant to 28 U.S.C. 2201(a) files this Petition for Declaratory Judgment against Jelly Belly Candy Company (Jelly Belly). In support of its Petition for Declaratory Judgment, Petitioner states and avers as follows: PRELIMINARY STATEMENT This is an action seeking a declaration that Petitioner Original Gourmets use of its Original Gourmet Food Co. trade name, as well as its ORIGINAL GOURMET trademark as evidenced in U.S. Trademark Application Serial No. 85/101,655, and the ORIGINAL GOURMET mark and design as embodied in U.S. Trademark Registration No. 3,077,543, including the distinctive chefs hat and slanted stylized O, does not infringe any rights of 1

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Respondent Jelly Belly. A copy of Original Gourmets U.S. Trademark Application Serial No. 85/101,655 and Registration No. 3,077,543 are attached hereto as Exhibits A and B, respectively. THE PARTIES 1. Original Gourmet, Petitioner, is a corporation incorporated under the laws of the

State of New Hampshire, with its principal place of business at 52 Stiles Road, Suite 201, Salem, NH 03709. 2. Jelly Belly, Respondent, is a corporation organized under the laws of California,

with its corporate office and headquarters located at One Jelly Belly Lane, Fairfield, CA 94533. J URISDICTION AND VENUE 3. Jurisdiction is proper in this court because this litigation arises under federal law,

namely 15 U.S.C. 1051 et seq. (Lanham Act). The Court has jurisdiction over this action under 28 U.S.C. 1331 (federal question), 28 U.S.C. 1338(a) (trademarks), and 28 U.S.C. 22012202 (Declaratory Judgment Act). 4. This Court has personal jurisdiction over Jelly Belly, because Jelly Belly conducts

business in the State of New Hampshire, including selling its products to New Hampshire companies, making its products available at New Hampshire stores, and advertising and selling its products through the Internet to New Hampshire residents, e.g., through their website, www.jellybelly.com. In addition, Jelly Belly has sent two (2) cease and desist letters to Original Gourmet in New Hampshire. 5. Venue is proper in this district under 28 U.S.C. 1391(b) and 1391(c).

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6.

This action for declaratory judgment is proper and timely.

An actual case or

controversy exists between the parties as evidenced by Jelly Bellys request for an extension of time for opposition and cease and desist letters, as described in further detail below.

STATEMENT OF FACTS 7. Original Gourmet was incorporated in February, 2000, and has used the Original

Gourmet Food Co. trade name since that time. In addition, Original Gourmet has used its ORIGINAL GOURMET trademark in commerce since at least as early as September 30, 2004, as evidenced by Petitioners incontestable U.S. Trademark Registration No. 3,077,543 (the `543 trademark). 8. Petitioner has used the Original Gourmet Food Co. trade name, ORIGINAL

GOURMET trademark, and ORIGINAL GOURMET mark and design as embodied in the `543 trademark on baked goods, e.g., pretzels, brownies, cookies, wafers, and popcorn, and also on candy. Original Gourmet produces a line of unique gourmet lollipops, and sells these lollipops in commerce under the ORIGINAL GOURMET trademark. 9. On July 7, 2011, Respondent Jelly Belly filed a 30 day request for extension of

time with the United States Patent and Trademark Office to oppose Original Gourmets trademark application Ser. No. 85/101,655 (the `655 application) for cookies. 10. On July 19, 2011, Respondent Jelly Belly sent a first cease and desist letter to

Petitioner Original Gourmet regarding the infringement of Jelly Bellys trademarks. The first cease and desist letter specifically requested that Original Gourmet cease all use of the ORIGINAL GOURMET mark on candy. A redacted copy of the first cease and desist letter is attached hereto as Exhibit C.

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11.

Among other things, Jelly Belly asserted that Original Gourmets use of its

trademark(s), ORIGINAL GOURMET, in connection with candy, is likely to cause consumer confusion in light of the following Jelly Belly trademarks: U.S. Trademark Registration Nos. 1,942,689 and 3,771,488 for THE ORIGINAL GOURMET JELLY BEAN, attached hereto as Exhibits D and E, respectively; U.S. Trademark Registration Nos. 2,085,121 and 3,378,061 for THE ORIGINAL GOURMET CANDY CORN, attached hereto as Exhibit F and G, respectively; and U.S. Trademark Registration No. 3,391,945 for THE ORIGINAL GOURMET JELLY BEAN JELLY BELLY and anthropomorphic character, attached hereto as Exhibit H. 12. On July 27, 2011, Original Gourmet responded to the first cease and desist letter

by sending a first reply letter, refuting Jelly Bellys positions. Original Gourmet stated that its use of its trade name and trademarks does not conflict with Jelly Bellys asserted rights, in part because there was no likelihood of confusion between Petitioners and Respondents marks. 13. On August 25, 2011, Jelly Belly sent a second cease and desist letter to Original

Gourmet stating that Original Gourmets positions in its first reply letter are not supported by law and continuing to demand that Original Gourmet cease use of ORIGINAL GOURMET on candy. A redacted copy of the second cease and desist letter is attached hereto as Exhibit I. 14. On September 28, 2011, Respondent Jelly Belly filed a 90 day request for

extension of time with the United States Patent and Trademark Office extending the time to oppose Original Gourmets `655 application until December 4, 2011. 15. On October 3, 2011, Original Gourmets counsel, Scott A. Daniels, telephoned

Jelly Bellys counsel, Mr. Jonathan Hyman, and left a voice message indicating a desire to discuss the issues.

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16.

On October 4, 2011, Original Gourmet responded to Jelly Belly with a second

reply letter, once again refuting Jelly Bellys positions.

17.

On October 28, 2011 a telephone discussion was undertaken between Original

Gourmets counsel, Scott A. Daniels, and Jelly Bellys counsel, Mr. Jonathan Hyman, regarding the dispute over Original Gourmets use of its trade name and trademarks. No agreement was reached regarding the parties respective trademark rights.

18.

Accordingly, it is reasonable for Original Gourmet to anticipate that if it continues

to use its ORIGINAL GOURMET marks, Respondents will file an infringement action against Original Gourmet. 19. Although Jelly Belly has filed requests for extension of time to file an opposition

for the `655 application, they have not filed an actual opposition yet. Even if they had filed an opposition, that opposition would not resolve all of the issues between the parties, namely Original Gourmets continued right to use the ORIGINAL GOURMET trademarks in connection with candy and baked goods. 20. Therefore, the interests of the parties and judicial economy are best served by

obtaining a decision as to Original Gourmets continued right to use its trade name and trademarks in connection with candy and baked goods. COUNT I ORIGINAL GOURMET 21. Original Gourmet hereby restates and re-alleges the allegations set forth in

paragraphs 1-20. 22. An actual and justiciable controversy exists between the parties in that

Respondent Jelly Belly claims it has rights and interest to the phrase Original Gourmet and that Original Gourmets use of its Original Gourmet Food Co. trade name, ORIGINAL 5

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GOURMET trademark, and ORIGINAL GOURMET marks as embodied in the `543 trademark and `655 application would cause a likelihood of confusion as to the source of Original Gourmets goods. 23. Original Gourmet denies there is a likelihood of confusion between its use of its

trade name and trademarks in connection with candy and baked goods and Jelly Bellys valid trademarks as used on their respective goods. 24. Original Gourmet also denies that Jelly Belly is solely entitled to trademark rights

in the phrase Original Gourmet. 25. After multiple letters, emails, and phone calls, the controversy between the parties

has not been resolved, thus, a declaration from the Court is needed to resolve the controversy. The Court is authorized to issue a declaration of rights under these circumstances pursuant to the Federal Declaratory Judgments Act, 28 U.S.C. 2201-2202. 26. Accordingly, Original Gourmet hereby seeks a declaratory judgment that Original

Gourmets use of its Original Gourmet Food Co. trade name, ORIGINAL GOURMET trademark, and ORIGINAL GOURMET marks as embodied in the `543 trademark and `655 application does not infringe any valid trademark rights of Jelly Belly. P RAYER FOR R ELIEF WHEREFORE, Original Gourmet respectfully requests this Honorable Court rule, order, and decree: A. Original Gourmets use of its Original Gourmet Food Co. trade name in

connection with candy and baked goods does not infringe any of Jelly Bellys valid trademark rights;

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B.

Original Gourmets use of its ORIGINAL GOURMET trademarks in connection

with candy and baked goods does not infringe any of Jelly Bellys valid trademark rights; C. Original Gourmets use of its ORIGINAL GOURMET mark and design as

embodied in U.S. Trademark Registration No. 3,077,543 in connection with candy and baked goods does not infringe any of Jelly Bellys valid trademark rights; D. Original Gourmets use of its ORIGINAL GOURMET mark as evidenced in U.S.

Trademark Application Serial No. 85/101,655 in connection with candy and baked goods does not infringe any of Jelly Bellys valid trademark rights; E. In the alternative, to the extent that Jelly Belly has obtained sole trademark rights

in the phrase Original Gourmet, that such rights are limited to the goods of jelly beans and candy corn; F. G. Award Original Gourmet its costs and attorneys fees; and Enter such other further relief to which Original Gourmet may be entitled as a

matter of law or equity, or which the Court determines to be just and proper.

/s/ Scott Daniels______ Scott Daniels N.H State Bar No. 14001 Daniels Patent Law PLLC 43 Centre Street Concord, New Hampshire 03301 Telephone: (603)226-8610 Fax: (603)226-8611 scott@danielspatentlaw.com

Attorney for Petitioner

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CERTIFICATE OF SERVICE I hereby certify that on this ______ day of _________, ____, I have caused a true copy of the foregoing COMPLAINT FOR DECLARATORY JUDGMENT OF NON-INFRINGEMENT OF TRADEMARK RIGHTS to be served via 1st Class Mail on the ___ day of _______, ____ on the following counsel of record: Jonathan Hyman CA Bar No. 266723 Knobbe Martens Olson & Bear LLP 10100 Santa Monica Blvd 16th Floor Los Angeles, CA 90067 Telephone: (310)551-3450 Fax: (310)551-3458 jhyman@kmob.com

/s/ Scott A. Daniels Scott A. Daniels

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INDEX OF EXHIBITS 1:11-cv-0539

ORIGINAL GOURMET FOOD COMPANY, INC., Petitioner, v. JELLY BELLY CANDY COMPANY, Defendants. Civil No. EXHIBIT A ............................Petitioners Federal Trademark Application EXHIBIT B ............................Petitioners Federal Trademark Registration EXHIBIT C ............................Respondents Cease and Desist Letter 1 EXHIBIT D ............................Respondents Federal Trademark Registration 1 EXHIBIT E ............................Respondents Federal Trademark Registration 2 EXHIBIT F ............................Respondents Federal Trademark Registration 3 EXHIBIT G ............................Respondents Federal Trademark Registration 4 EXHIBIT H ............................Respondents Federal Trademark Registration 5 EXHIBIT I .............................Respondents Cease and Desist Letter 2

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EXHIBIT A

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PTO Form 1478 (Rev 9/2006) OMB No. 0651-0009 (Exp 12/31/2011)

Trademark/Service Mark Application, Principal Register TEAS Plus Application

Serial Number: 85101655 Filing Date: 08/06/2010 NOTE: Data fields with the * are mandatory under TEAS Plus. The wording "(if applicable)" appears where the field is only mandatory under the facts of the particular application.

The table below presents the data as entered.

Input Field TEAS Plus YES Entered

MARK INFORMATION
*MARK *SPECIAL FORM USPTO-GENERATED IMAGE LITERAL ELEMENT *COLOR MARK *COLOR(S) CLAIMED (If applicable) *DESCRIPTION OF THE MARK (and Color Location, if applicable) PIXEL COUNT ACCEPTABLE PIXEL COUNT

\\TICRS\EXPORT11\IMAGEOUT 11\851\016\85101655\xml1\ FTK0002.JPG YES NO ORIGINAL GOURMET NO

The mark consists of a rectangular cookie tin having a colored border containing the words Original Gourmet and an inner rectangle with raised graphical design. YES 738 x 883 Principal

REGISTER

APPLICANT INFORMATION
*OWNER OF MARK *STREET

Original Gourmet Food Company Inc. 52 Stiles Road Suite 201

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*CITY *STATE (Required for U.S. applicants) *COUNTRY *ZIP/POSTAL CODE (Required for U.S. applicants only) PHONE

Salem New Hampshire United States 03079 (603)894-1200

LEGAL ENTITY INFORMATION

*TYPE * STATE/COUNTRY OF INCORPORATION

CORPORATION New Hampshire

GOODS AND/OR SERVICES AND BASIS INFORMATION

* INTERNATIONAL CLASS IDENTIFICATION *FILING BASIS FIRST USE ANYWHERE DATE FIRST USE IN COMMERCE DATE

030 Cookies SECTION 1(a) At least as early as 09/01/2001 At least as early as 09/01/2001

SPECIMEN FILE NAME(S) JPG FILE(S)

\\TICRS\EXPORT11\IMAGEOUT 11\851\016\85101655\xml1\ FTK0003.JPG \\TICRS\EXPORT11\IMAGEOUT11\851\016\85101655\xml1\FTK0004.JPG

ORIGINAL PDF FILE CONVERTED PDF FILE(S) (1 page) SPECIMEN DESCRIPTION

spec-7624195130-081433240_._ORGOFO-T13AUS-declaration.pdf \\TICRS\EXPORT11\IMAGEOUT11\851\016\85101655\xml1\FTK0005.JPG cookie tin product and declaration of use

ADDITIONAL STATEMENTS SECTION

*TRANSLATION (if applicable) *TRANSLITERATION (if applicable)

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*CLAIMED PRIOR REGISTRATION (if applicable) *CONSENT (NAME/LIKENESS) (if applicable) *CONCURRENT USE CLAIM (if applicable)

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ATTORNEY INFORMATION
NAME ATTORNEY DOCKET NUMBER FIRM NAME STREET CITY STATE COUNTRY ZIP/POSTAL CODE PHONE FAX EMAIL ADDRESS AUTHORIZED TO COMMUNICATE VIA EMAIL OTHER APPOINTED ATTORNEY

Scott A. Daniels ORGOFO T13AUS Daniels Patent Law PLLC 43 Centre Street Concord New Hampshire United States 03301 603 226 8610 603 226 8611 inbox@danielspatentlaw.com Yes Claire Zopf

CORRESPONDENCE INFORMATION
*NAME FIRM NAME *STREET *CITY *STATE (Required for U.S. applicants) *COUNTRY *ZIP/POSTAL CODE

Scott A. Daniels Daniels Patent Law PLLC 43 Centre Street Concord New Hampshire United States 03301

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PHONE FAX *EMAIL ADDRESS *AUTHORIZED TO COMMUNICATE VIA EMAIL

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603 226 8610 603 226 8611 inbox@danielspatentlaw.com Yes

FEE INFORMATION
NUMBER OF CLASSES FEE PER CLASS *TOTAL FEE PAID

1 275 275

SIGNATURE INFORMATION
* SIGNATURE * SIGNATORY'S NAME * SIGNATORY'S POSITION * DATE SIGNED

/sdaniels68/ Scott A. Daniels Attorney of Record 08/06/2010

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PTO Form 1478 (Rev 9/2006) OMB No. 0651-0009 (Exp 12/31/2011)

Filed 11/19/11 Page 6 of 11

Trademark/Service Mark Application, Principal Register TEAS Plus Application

Serial Number: 85101655 Filing Date: 08/06/2010

To the Commissioner for Trademarks:

MARK: ORIGINAL GOURMET (stylized and/or with design, see mark) The literal element of the mark consists of ORIGINAL GOURMET. The mark consists of a rectangular cookie tin having a colored border containing the words Original Gourmet and an inner rectangle with raised graphical design. The applicant, Original Gourmet Food Company Inc., a corporation of New Hampshire, having an address of 52 Stiles Road Suite 201 Salem, New Hampshire 03079 United States requests registration of the trademark/service mark identified above in the United States Patent and Trademark Office on the Principal Register established by the Act of July 5, 1946 (15 U.S.C. Section 1051 et seq.), as amended, for the following: For specific filing basis information for each item, you must view the display within the Input Table. International Class 030: Cookies

In International Class 030, the mark was first used at least as early as 09/01/2001, and first used in commerce at least as early as 09/01/2001, and is now in use in such commerce. The applicant is submitting one specimen(s) showing the mark as used in commerce on or in connection with any item in the class of listed goods and/or services, consisting of a(n) cookie tin product and declaration of use. JPG file(s): Specimen File1 Specimen File2 Original PDF file: spec-7624195130-081433240_._ORGOFO-T13AUS-declaration.pdf Converted PDF file(s) (1 page) Specimen File1

The applicant's current Attorney Information: Scott A. Daniels and Claire Zopf of Daniels Patent Law PLLC

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43 Centre Street Concord, New Hampshire 03301 United States The attorney docket/reference number is ORGOFO T13AUS. The docket/reference number is ORGOFO T13AUS.

The applicant's current Correspondence Information: Scott A. Daniels Daniels Patent Law PLLC 43 Centre Street Concord, New Hampshire 03301 603 226 8610(phone) 603 226 8611(fax) inbox@danielspatentlaw.com (authorized) A fee payment in the amount of $275 has been submitted with the application, representing payment for 1 class(es). Declaration The undersigned, being hereby warned that willful false statements and the like so made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001, and that such willful false statements, and the like, may jeopardize the validity of the application or any resulting registration, declares that he/she is properly authorized to execute this application on behalf of the applicant; he/she believes the applicant to be the owner of the trademark/service mark sought to be registered, or, if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes applicant to be entitled to use such mark in commerce; to the best of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his/her own knowledge are true; and that all statements made on information and belief are believed to be true.

Signature: /sdaniels68/ Date Signed: 08/06/2010 Signatory's Name: Scott A. Daniels Signatory's Position: Attorney of Record

RAM Sale Number: 6250 RAM Accounting Date: 08/06/2010 Serial Number: 85101655 Internet Transmission Date: Fri Aug 06 08:23:39 EDT 2010 TEAS Stamp: USPTO/FTK-76.24.195.130-2010080608233948 9914-85101655-4705e36718de2d7e7fe7356e4f 7865470fa-CC-6250-20100806081433240184

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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EXHIBIT G

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EXHIBIT H

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EXHIBIT I

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OJS 44 (Rev. 12/07)

Case 1:11-cv-00539-SM Document 1-10

Filed CIVIL COVER SHEET 11/19/11 Page 1 of 2

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS

ORIGINAL GOURMET FOOD COMPANY, INC.

DEFENDANTS

JELLY BELLY CANDY COMPANY

(b) County of Residence of First Listed Plaintiff

Rockingham County, NH

County of Residence of First Listed Defendant

Solano County, CA

(EXCEPT IN U.S. PLAINTIFF CASES)

(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

Scott Daniels, Daniels Patent Law PLLC, 43 Centre Street, Concord, NH, 03301, (603)226-8610

(c) Attorneys (Firm Name, Address, and Telephone Number)

Jonathan Hyman, Knobbe Martens Olson & Bear LLP, 10100 Santa Monica Boulevard, 16th Floor, Los Angeles, CA, 90067, (310) 551-3450
DEF 1 and One Box for Defendant) PTF DEF Incorporated or Principal Place 4 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation

Attorneys (If Known)

II. BASIS OF JURISDICTION

1
U.S. Government Plaintiff

(Place an X in One Box Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for Plaintiff

(For Diversity Cases Only) PTF Citizen of This State 1

3 Federal Question (U.S. Government Not a Party) 4 Diversity

(Indicate Citizenship of Parties in Item III)

U.S. Government Defendant

Citizen of Another State

2 3

5 6

5 6

Citizen or Subject of a Foreign Country

IV. NATURE OF SUIT

CONTRACT

(Place an X in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY 362 Personal Injury Med. Malpractice 365 Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS 510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act
IMMIGRATION 462 Naturalization Application 463 Habeas Corpus Alien Detainee 465 Other Immigration Actions

422 Appeal 28 USC 158 423 Withdrawal 28 USC 157

PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRSThird Party 26 USC 7609

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN
1 Original Proceeding

(Place an X in One Box Only)

Appeal to District Appellate Court

2 Removed from
State Court

3 Remanded from

4 Reinstated or 5 Transferred from 6 Multidistrict another district Reopened Litigation (specify)

7 Judge from Magistrate

Judgment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI. CAUSE OF ACTION Brief description of cause:

28 U.S.C 2201 - 2202 and 15 U.S.C. 1051 et seq. (Lanham Act)

DEMAND $ CHECK YES only if demanded in complaint: Yes No JURY DEMAND: DOCKET NUMBER

CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 COMPLAINT: VIII. RELATED CASE(S) (See instructions): JUDGE IF ANY
DATE

Declaratory Judgment of Non-Infringement of Trademarks

SIGNATURE OF ATTORNEY OF RECORD

11/19/2011
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/s/ Scott A. Daniels

APPLYING IFP

JUDGE

MAG. JUDGE

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JS 44 Reverse (Rev. 12/07)

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the defendant is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section (see attachment). II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an X in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.