Yeti Enterprises Complaint

Exhibit A
Case 3:13-cv-01203-ST Document 1-1 Filed 07/17/13 Page 1 of 40 Page ID#: 4

Exhibit A
Page 1 of 39
1
JUN 1 7 2013
2
3
4
5
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
6 YETI ENTERPRISES IN CORPORA TED,
an Oregon corporation,
7
8
Plaintiff,
v.
9
NPK, LLC, f/k/a N.P.K. DISTRIBUTORS,
10 LLC, an Oregon Limited Liability
Company, and ORION TANG, an
1 1 individual,
12
13
14
15
16
17
18
Defendants.
No.
1306-08611
COMPLAINT
(Trademark Infringement and Unfair
Competition; False Advertising; Common
Law Infringement and Unfair Competition;
Fraud- Federal Trademark Registration;
Common Law Fraud; Breach of Contract;
Breach of the Implied Covenant of Good
Faith and Fair Dealing; Declaratory
Judgment)
NOT SUBJECT TO MANDATORY
ARBITRATION .
JURY TRIAL DEMANDED
Prayer amount in excess of$76,873.87
Fee Authority: ORS 21.160(l)(c)
19 Plaintiff Yeti Enterprises Incorporated ("Yeti"), for its Complaint against NPK, LLC,
20 f/k/a N.P.K. Distributors, LLC ("NPK") and Orion Tang, an individual ("Tang") states as
21 follows:
22 I. PARTIES, JURISDICTION AND VENUE
23 1.
24 Yeti is an Oregon corporation that was founded in Portland, Oregon, and is
25 headquartered in Medford, Oregon. Yeti invented, manufactures and sells horticulture
26 products known as plant "washes" that are used by consumers to prevent pest infestation and
Page 1 COMPLAINT
74034342.4 0048752 00001
Exhibit A
Page 2 of 39
mold growth, and to clean plants. Yeti sells its products throughout Oregon, the United
2 States, Canada, the United Kingdom, and Spain.
3 2.
4 NPK is an Oregon Limited Liability Company headquartered in Medford, Oregon.
5 NPK is in the business of selling and distributing horticulture products, and operates a
6 business known as "In and Out Gardens Hydroponic Superstore'' in Medford, Oregon.
7 3.
8 Jurisdiction in this Court is proper pursuant to ORS 10.030 and ORCP 4 A, 4 C and 4
9 E, because the patiies are domestic Oregon business entities and the dispute concerns acts,
10 services, goods, and contracts arising and performed within this state.
11 4.
12 Venue in Multnomah County is proper pursuant to ORS 14.080 because the
13 Distribution Agreement (the "Agreement") between the parties that is the subject ofthis
14 dispute was negotiated and executed in Portland, Oregon, and provides: "In the event suit or
15 action is necessary to enforce the terms of this Agreement, jurisdiction shall be exclusively in
16 the State of Oregon with venue in Multnomah County." A true copy of the Agreement is
17 attached hereto as Exhibit A.
18
19 A.
20
II. GENERAL ALLEGATIONS
Yeti Used the Trademarks "That Stuff," "Mighty Wash", "Power Wash," "PM
Wash," the "Power Button," and "Frequency Imprinted H20."
21 5.
22 Yeti invented and manufactures three plant washes using a confidential and
23 proprietary formula and process that includes electronic frequency imprinting. In March
24 2009, Yeti began selling the washes from its Portland, Oregon, headquarters using the trade
25 name "That Stuff."
26 Ill
Page 2 COMPLAINT
74034342.4 0048752" 00001
Exhibit A
Page 3 of 39
:;

Q-.<;::,

a.t::;:;::;-
:j 0 <:::>
l:l.lQ.

J 1'1"1
1'1"1
o1:l..;.

oo<;;;-
..c:c:::.
<l::lQ.
.e;

ell
8
Q-,
1 6.
2 Yeti sold its products in specialty garden and plant stores throughout Oregon,
3 Washington, Colorado and Montana. One ofthe stores in which Yeti sold its products was
4 NPK's garden store called "In and Out Gardens Hydroponic Superstore."
5 7.
6 In 2010, Yeti consulted with NPK to design new marks for Yeti to use on Yeti's
7 products. On October 8 , 2010, Yeti began selling its three products with labels using the
marks "Mighty Wash," "Power Wash'' and "PM Wash," respectively. Each label also
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
contained the colored "Power Button" and a distinctive logo containing an electronic
frequency graph and the words "Frequency Imprinted H20." Each label also contained the
words "'That Stuff' presents" and identifies the products as "Manufactured by Yeti
Enterprises, Inc." The marks "That Stuff, "Mighty Wash," "Power Wash," "PM Wash," the
"Power Button, and the "Frequency Imprinted H20" mark shall be referred to herein
collectively as "Yeti's Marks." Copies of each ofthe three labels using Yeti's Mark's in
October 2010 are attached hereto as Exhibit Band also pictured below:
23 Ill
24 Ill
25 Ill
26 Ill
Page 3 COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 4 of 39
2
3
4
5
6
7
8
9
10
11
12
DlRMCJlOM> FOR US:B:
l'nwf'W..111b.*ttafd
wwAM ...'W)'allreitlw
to.ltb<bmd ....,,;,
.,n)., Stcihlc ihc

lcna,l-1

Oood IJ WI'IIYI1i;l
rC'If .ucteb, .aJ'Pl)'.,. on('l\
1u the
d.ly orbna& -..co
.. .._
RI!ADYTO USI!
DO NOT DILUTE
13 8.
ki!AI>YTOutn

Mlll ....... .
.,.,,.I... Dir
... HI'JCI.-..r-
14 Using the marks shown above, Yeti manufactured, bottled, labeled, marketed, and
15 sold Mighty Wash, Power Wash and PM Wash (collectively, the "Products") to garden and
16 plant stores throughout Oregon, Washington, Colorado and Montana.
17 B. Yeti Entered into a Distribution Agreement with NPK.
18 9.
19 On November 11, 2010, after Yeti began using Yeti's Marks, Yeti entered into a
20 Distribution Agreement with NPK. The Agreement recognizes that Yeti manufactures "That
21 StuffMight Wash," "That StuffPM Wash,'' and "That Stuff Power Wash," and requires
22 NPK to bottle, label, market and physically distribute Yeti's Products. The term ofthe
23 Agreement is ten (1 0) years.
24 10.
25 NPK agreed to purchase a minimum of 12 totes of Products per month at specified
26 prices. A "tote" is a plastic vessel and each one contains 260 gallons of liquid. The
Page 4 COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 5 of 39
Agreement was later modified to require NPK to purchase a minimum of 3 7 totes of Mighty
2 Wash per month, and a combined total of 14 totes of Power Wash and PM Wash per month,
3 at set prices.
4 11.
5 NPK further agreed to purchase and maintain insurance for the Products, or to
6 reimburse Yeti ifNPK failed to do so. and Yeti was forced to cover insurance costs.
7 c.
8
9
NPK Misappropriated Yeti's Trademarks and Engaged in Unfair Competition
and False Advertising.
12.
10 The parties commenced perfonnance of the Agreement and NPK began bottling,
11 labeling, marketing and physically distributing Yeti's Products.
12 13.
13 On July 21, 201 I, without Yeti's knowledge or permission, NPK applied for federal
I4 trademark registration of the mark "Mighty Wash," in international Class 003. In the
15 application, NPK fraudulently misrepresented to the Trademark Office that NPK was the
16 owner of the mark. NPK also fraudulently misrepresented to the Trademark Office that the
17 mark was first used on November I, 20 I 0. The specimen submitted with the application was
18 a copy of Yeti's label for "Mighty Wash" that included Yeti's other marks, "That Stuf('' the
19 "Power Button," and a confusingly similar version of"Frequency Imprinted H20." NPK's
20 Vice President, Orion Tang, signed a declaration in support of the fraudulent application.
21 14.
22 On March 19, 2012, without Yeti's knowledge or permission, NPK applied for
23 federal trademark registration of the mark "Mighty Wash," in international Class 005. In this
24 application, NPK fraudulently misrepresented to the Trademark Office that NPK was the
25 owner of the mark. NPK also fraudulently misrepresented to the Trademark Office that the
26 mark was first used by NPK or its "related company or licensee predecessor in interest" as
Page 5 COMPLAINT
74034342.4 0048752 00001
Exhibit A
Page 6 of 39
1 early as November 1, 2010. The specimen submitted with the application was a copy of
2 Yeti's label for "Mighty Wash" that included Yeti's other marks, "That Stuff," the "Power
3 Button," and a confusingly similar variation of"Frequency Imprinted H20." NPK's Vice
4 President, Orion Tang, signed a declaration in support of the fraudulent application.
5 15.
6 In or around April, 2012, NPK told Yeti that the Envirorunental Protection Agency
7 ("EPA") had contacted NPK and demanded removal ofthe trademark "That Stuff' and the
8 words "Manufactured by Yeti Enterprises, Inc." from the labels of Yeti's Products. NPK did
9 not explain the basis for the supposed demand and refused to provide Yeti a copy of the
1 0 EPA's correspondence. In fact, the EPA did not demand removal of those marks at all, and
11 NPK's statement to Yeti was a fraudulent misrepresentation.
12 16.
13 In bad faith and without Yeti's permission, NPK removed the marks "That Stuff' and
I
14 ''Manufactured by Yeti Enterprises, Inc" from the labels on Yeti's Products. NPK replaced
15 the words "That Stuffpresents," with "NPK Industries presents."
16 17.
17 In bad faith and without Yeti's permission, in or around April 2013, NPK began
18 selling its own knock off product using Yeti's marks, "Mighty Wash," "Power Wash," "PM
19 Wash," and the "Power Button." NPK also used a confusingly similar variation of Yeti's
20 "Frequency Imprinted H20'' mark. The labels on NPK's products were virtually identical to
21 those on Yeti's Products. Copies ofthe labels from NPK's knock offproducts are attached
22 hereto as Exhibit C and also pictured below:
23 Ill
24 Ill
25 Ill
26 Ill
Page 6 COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 7 of 39

1'--
0\C.

ON
.c:6

,.;joe

'
c.

Iii; u,...,

f'-l<IY1'

.s

en
0
0
C7\
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
flll : fo l lt l 'll f t l I j
"'-"' ..... -
..
.. . .
t,.J . , .
I
,.._
..
IU4111
rttl Ull.l'l
,.
r
a-

/:f. -

.....)
18.
, .. ''"lhl,ll ., .... ,.
Jl' '-PYlfll ,.

........ rw:
. .. :. M
23
24
25
NPK sold and continues to sell its own knock off products using Yeti's Marks as
shown above, and/or marks confusingly similar to Yeti's Marks, in direct competition with
Yeti, through the same channels and to the same group of users. As a result, NPK is causing
26 actual consumer confusion in the marketplace.
Page 7 COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 8 of 39
1 19.
2 On information and belief, NPK's knock off products are not manufactured using
3 Yeti's proprietary formula and process.
4 20.
5 NPK's knock off products are also substantially less effective than Yeti's Products.
6 21.
7 As a result, NPK is causing irreparable harm to Yeti's goodwill and reputation.
8 22.
9 NPK is also advertising and selling other products using Yeti's "Power Button" mark
1 0 and claiming that they are "From the Creators of' Mighty Wash'." Examples are attached
11 hereto as Exhibit D and also pictured below:
12
13
14
15
16
17
18
19
20
21
22
23
24
25 ///
26
Page 8 COMPLAINT
74034342.4 0048752- 0000 I
lOOxiD t:lW ~ (!j}
1118HTY WAIH"
"""" ldolrt ''"'""'"
Revolutionary New Plant Technology,
discovered while researching a
solution for world hunger
J (I through Increasing
1
r-:
food crop
yields.

Exhibit A
Page 9 of 39
23.
2 NPK is advertising using Yeti's Marks in direct competition with Yeti through the
3 same channels and to the same group of users, and is causing actual and likely consumer
4 confusion in the marketplace. Yeti has received inquiries from customers confused that
5 "Stack" and "Multiply" were Yeti's Products, because those products are marked with the
6 "Power Button," when in fact "Stack" and "Multiply" are NPK's products. This false
7 advertising is causing further irreparable harm to Yeti's goodwill and reputation.
8 24.
9 Yeti discovered the above misappropriation and false advertising in 2013, and
10 demanded that NPK discontinue use of Yeti's Marks and discontinue advertising its products
11 as being "from the creators of 'Mighty Wash."' NPK refuses to cooperate.
12 c. NPK Breached the Distribution Agreement.
25.
13
14 In addition to making knockoff versions of Yeti's Products, NPK failed to perform its
15 obligations under the Agreement.
16 26.
17 NPK refused to pay for insurance or to reimburse Yeti for such insurance, as required
18 by the Agreement, for 2011,2012 and 2013. Consequently, Yeti purchased insurance at a
19 total cost of$20,013.56.
20 27.
21 NPK also failed to timely pay for Products delivered under the Agreement in 2010
22 and 20 11. As a result, pursuant to the terms of the Agreement, Yeti is entitled to interest in
23 the amount of $56,860.31.
24 28.
25 NPK also failed to order the requisite number oftotes of Products from Yeti, as
26 required by the Agreement, and in May 2013 discontinued orders altogether. NPK's failure
Page 9 COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 10 of 39
to order the requisite number of totes for the remaining duration of the Agreement will result
2 in lost revenue for Yeti in the amount of$5,370,820.00.
3 29.
4 Yeti notified NPK that it was in breach ofthe Agreement.
5 30.
6 NPK refuses to stop using Yeti's Marks and to pay amounts due and owing
7 31.
8 Yeti also notified one of its customers, Sunlight Supply Incorporated ("Sunlight"),
9 that Yeti was no longer working with NPK, and would instead work directly with SlU1light.
10 In response, NPK claimed that, by contacting customers directly, Yeti tortiously interfered
11 with NPK's relationship and sued Yeti in Jackson County Circuit Court, Case No.
12 13CV01641. However, the Agreement provides for exclusive jurisdiction in Multnomah
13 County Circuit Court, and Yeti has moved to dismiss the Jackson County action on those
14 grounds.
15 Ill. CLAIMS FOR RELIEF
16 FIRST CLAIM FOR RELIEF (AGAINST NPK)
17 Trademark Infringement and Unfair Competition- 15 U.S.C. 112S(a)
18 32.
19 Yeti realleges and incorporates by reference its allegations in each of the preceding
20 paragraphs of this Complaint.
21 33.
22 Yeti's Marks are valid and protectable trademarks.
23 34.
24 NPK used Yeti's Marks in connection with the sale of goods in commerce without
25 permission.
26 Ill
Page 10 - COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 11 of 39
35.
2 NPK's use of the Yeti's Marks occurred after Yeti began using the marks.
3 36.
4 NPK' s use of Yeti's Marks, or variations of Yeti's Marks, is likely to cause consumer
5 confusion or mistake, or to deceive, as to the affiliation, connection, or association of NPK
6 with Yeti.
7 37.
8 NPK is therefore liable under 15 U.S.C. 1125(a) for infringement of Yeti's Marks
9 and for unfair competition.
10 38.
11 Pursuant to 15 U.S.C. 1117(a), Yeti is entitled to recover its actual damages, NPK's
12 profits, and the costs of the action.
13 39.
14 Because NPK's actions in using Yeti's Marks were intentional and in bad faith, the
15 court should enter an award of enhanced damages under 15 U.S. C. 111 7 ( a)(3) in an amount
16 up to three times the actual damages.
17
40.
18 This case is exceptional under 15 U.S.C. 1117(a)(3), and Yeti should be awarded its
19 reasonable attorneys' fees.
20 41.
21 In addition, because Yeti's remedies under 15 U.S.C. 1117(a), while necessary, are
22 not sufficient to fully protect Yeti's continuing interest in preserving its marks against future
23 infringement by NPK, Yeti is entitled to an injunction against NPK's use in the future of
24 Yeti's Marks, or any colorable imitation or confusingly similar variation of Yeti's Marks.
25 Ill
26 Ill
Page 11 - COMPLA1NT
74034342.4 0048752- 0000 I
Exhibit A
Page 12 of 39
SECOND CLAIM FOR RELIEF (AGAINST NPK)
2 False Advertising- 15 U.S.C. 1125(a)
3 42.
6
7 Yeti's Marks are valid and protectable trademarks.
8 44.
9 Without Yeti's permission, NPK used Yeti's Marks in with the sale of
10 goods in commercial advertising or promotion ofNPK's knock offproducts, thereby
11 misrepresenting the nature, characteristics, and qualities ofNPK's goods. NPK's goods are
12 not "from the creators of 'Mighty Wash."'
13 45.
14 NPK is also falsely representing that its products are manufactured using an imprinted
15 electronic frequency, like Yeti's Products.
16 46.
17 NPK' s use of the Yeti's Marks occurred after Yeti began using the marks.
18 47.
19 NPK is therefore liable under 15 U.S.C. 1125(a) for false advertising and unfair
20 competition.
21 48.
22 Pursuant to 15 U.S.C. 1117(a), Yeti is entitled to recover its actual damages, NPK's
23 profits, and the costs of the action.
24 Ill
25 Ill
26
Page 12 - COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 13 of 39
49.
2 Because NPK' s false advertising was intentional and in bad faith, the court should
3 enter an award of enhanced damages under 15 U.S.C. 1117(a)(3) in an amount up to three
4 times the actual damages.
5 50.
6 This case is exceptional under 15 U.S.C. 1117(a)(3), and Yeti should be awarded its
7 reasonable attorneys' fees.
8 51.
9 In addition, because Yeti's remedies under 15 U.S.C. 1117(a), while necessary, are
10 not sufficient to fully protect Yeti's continuing interest in preserving its marks against future
11 infringement by NPK, Yeti is entitled to an injunction against NPK's use in the future of
12 Yeti's Marks, or any colorable imitation or confusingly similar variation of Yeti's Marks.
13 THIRD CLAIM FOR RELIEF (AGAINST NPK)
14 Common Law Infringement and Unfair Competition
15 52.
17 paragraphs ofthis Complaint.
18 53.
19 Prior to NPK's unlawful use, Yeti's Marks were well recognized by the consuming
20 public of horticulture products and had come to be associated with and to identify the source
21 of Yeti's Products.
22 54.
23 By misappropriating Yeti's Marks, NPK has created confusion or a likelihood of
24 confusion, deception, and mistake in the marketplace, and in the minds of the public, as to
25 the origin, sponsorship, and/or affiliation ofNPK's products and services, thereby doing
26 great and irreparable harm to Yeti's reputation and goodwill.
Page 13 - COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 14 of 39
55.
2 NPK's actions as herein alleged constitute common law unfair competition.
3 56.
4 NPK's conduct as herein alleged has caused, and unless restrained and enjoined will
5 continue to cause, irreparable harm to Yeti that cannot be adequately compensated or
6 measured by money alone. Yeti has no adequate remedy at law and is entitled to permanent
7 injunctive relief stopping NPK's continued unfair competition using Yeti's Marks.
8 57.
9 In addition, as a direct and proximate result of NPK' s conduct, Yeti has suffered and
1 0 will continue to suffer damages in an amount that is presently unknown but that will be
11 determined according to proof at trial.
12 58.
13 Upon information and belief, as a direct and proximate result ofNPK's wrongful
14 conduct, NPK has realized and will continue to realize profits, gains, and other advantages
15 from its infringing activities, all to the detriment of. Yeti. As a direct and proximate result of
16 NPK's wrongful conduct, Yeti has been damaged and is entitled to recover NPK's wrongful
17 profits and Yeti's actual damages, together with Yeti's attorneys' fees incurred in this action.
18 FOURTH CLAIM FOR RELIEF (AGAINST NPK AND TANG)
19 (Fraud- Federal Trademark Registration)
20 (Count 1)
21 59.
24 Ill
25 Ill
26 Ill
Page 14 - COMPLAINT
74034342.4 0048752- 0000 I
Exhibit A
Page 15 of 39
60.
2 NPK registered Yeti's trademark "Mighty Wash" in international Class 003, by
3 fraudulently misrepresenting that NPK was the owner of the mark and that the mark was first
4 used by NPK on November 1, 2010.
5 61.
6 Tang signed a declaration in support of the fraudulent application. Tang's declaration
7 contains intentional misrepresentations made for the purpose of attempting to misappropriate
8 Yeti's Marks.
9
62.
10 As a result of the fraud by NPK and Tang, Yeti is entitled to damages in an amount to
II be determined at trial, plus punitive damages, plus its reasonable attorneys' fees and costs
12 incurred herein.
13 63.
14 As a result of the fraud by NPK and Tang, Yeti is further entitled to a declaration that
15 NPK's registration of "Mighty Wash" in international Class 003 is invalid and void.
16
17
(Count 2)
64.
20 65.
21 NPK registered Yeti's trademark "Mighty Wash" in international Class 005, by
22 fraudulently misrepresenting that NPK was the owner of the mark and that the mark was first
23 used by NPK or its "related company or licensee predecessor in interest" on November 1,
24 2010.
25 Ill
26 Ill
Page 15 - COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 16 of 39
66.
2 Tang signed a declaration in support of the fraudulent application. Tang's declaration
3 contains intentional misrepresentations made for the purpose of attempting to misappropriate
4 Yeti's Marks.
5 67.
6 As a result of the fraud by NPK and Tang, Yeti is entitled to damages in an amount to
7 be determined at trial, plus punitive damages, plus its reasonable attorneys' fees and costs
8 incurred herein.
9 68.
1 0 As a result of the fraud by NPK and Tang, Yeti is further entitled to a declaration that
11 NPK's registration of"Might Wash" in international Class 005 is invalid and void.
12 FIFTH CLAIM FOR RELIEF (AGAINST NPK)
13 (Common Law Fraud)
14 69.
15 Yeti realleges and incorporates by reference its allegations in each ofthe preceding
17
70.
18 In or around Apri12012, NPK told Yeti that the EPA had contacted NPK and
19 demanded removal of the trademark "That Stuff' and the words "Manufactured by Yeti
20 Enterprises, Inc." from the labels of Yeti's Products. NPK's statement was a material
21 misrepresentation and was false.
22 71.
23 At the time NPK made the misrepresentation regarding the EPA's purported demand,
24 NPK knew its misrepresentation was false.
25 Ill
26 Ill
Page 16 - COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 17 of 39
72.
2 NPK intended Yeti to rely on the misrepresentation in order to misappropriate Yeti's
3 Marks.
4 73.
5 Yeti justifiably relied on NPK's misrepresentation.
6 74.
7 As a result ofNPK's fraud, Yeti is entitled to damages in an amount to be determined
8 at trial, plus punitive damages, plus its reasonable attorneys' fees and costs incurred herein.
9
SIXTH CLAIM (AGAINST NPK)
(Breach of Contract)
(Count 1)
75.
Yeti real leges and incorporates by reference its allegations in each of the preceding
15 76.
16 The Agreement is a valid and enforceable contract between the parties.
17 77.
18 Yeti performed its obligations and conditions precedent under the Agreement.
19 78.
20 NPK breached the Agreement by misappropriating Yeti's Mark and engaging in false
21 advertising and unfair competition.
22 79.
23 As a result ofNPK's breach, Yeti has suffered damages in the amount of$20,013.56
24 for insurance costs, plus $56,860.31 in interest on untimely paid invoices, plus lost profits in
25 an amount to be determined at trial, plus reputational damage in an amount to be detennined
26 at trial.
Page 17 - COMPLAINT
74034342.4 0048752 00001
Exhibit A
Page 18 of 39
80.
2 Yeti is also entitled to recover its reasonable attorneys' fees and costs incurred herein,
3 pursuant to section 21 of the Agreement.
4 (Count 2)
5 81.
8 82.
10 83.
12 84.
13 NPK breached the Agreement by failing to pay for insurance or to reimburse Yeti for
1 4 insurance costs.
15 85.
16 As a result ofNPK's breach, Yeti has suffered damages in the amount of$20,013.56
17 for insurance costs, pl.us $56,860.31 in interest on untimely paid invoices, plus lost profits in
1 8 an amount to be determined at trial, plus reputational damage in an amount to be determined
19 at trial.
20 86.
23 (Count 3)
24 87.
Page 18 - COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 19 of 39
88.
3
4 89.
6 90.
7 NPK breached the Agreement by failing to pay interest owed on untimely paid
8 invoices.
9 91.
10 As a result ofNPK,s breach, Yeti has suffered damages in the amount of$20,013.56
12 an amount to be determined at trial, plus reputational damage in an amount to be determined
13 attrial.
14 92.
17
(Count 4)
18 93.
19 Yeti realleges and incorporates by reference its allegations in each ofthe preceding
21 94.
23 95.
25 1//
26 /II
Page 19 - COJ\.fl>LAINT
74034342.4 0048752- 00001
Exhibit A
Page 20 of 39
96.
2 NPK breached the Agreement by failing to order the required number of totes of
3 Product.
4 97.
5 As a result ofNPK's breach, Yeti has suffered damages in the amount of $20,013.56
7 an amount to be determined at trial , plus reputational damage in an amount to be determined
8 at trial.
9
98.
12 SEVENTH CLAIM FOR RELIEF (AGAINST NPK)
13 (Breach of the Implied Covenant of Good Faith and Fair Dealing)
14 99.
17
100.
19 101.
21 102.
22 The Agreement contains an implied covenant of good faith and fair dealing.
23 103.
24 NPK breached the implied covenant of good faith and fair dealing by
25 misappropriating Yeti's Marks and engaging in unfair competition and false advertising as
26 alleged in this Complaint.
Page 20 - COMPLAINT
74034342.4 0048752- 0000 I
Exhibit A
Page 21 of 39
104.
2 As a result ofNPK's breach, Yeti has suffered damages in the amount of $20,013.56
4 an amount to be detennined at trial, plus reputational damage in an amount to be determined
5 at trial.
6 105.
7 Yeti is also entitled to recover its reasonable attorneys' fees and costs incuned herein,
9 EIGHTH CLAIM FOR RELIEF (AGAINST NPK)
10 (Dedaratory Judgment- ORS Chapter 28)
11 106.
14 107.
15 There is a justiciable controversy between the parties regarding whether the
16 Agreement provides NPK the exclusive right to distribute Yeti's products, whether Yeti may
17 notify its buyers, including Sunlight, that Yeti will no longer be working with NPK, and
18 whether Yeti may sell its products directly to buyers, including Sunlight, using Yeti's Marks.
19 108.
20 This court has jurisdiction over the dispute because it arises out of the parties',
21 Agreement which provides for jurisdiction only in Multnornah County.
22 109.
23 Yeti is entitled to a declaratory judgment that: (a) the Agreement does not give NPK
24 exclusive rights to distribute ofYeti's Products; (b) NPK has breached the Agreement; (c)
25 Yeti's communication with Sunlight or any other buyer does not constitute tortious
26
Page 21 - COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 22 of 39
interference; and (d) Yeti may sell its Products directly to Sunlight or any other buyer using
2 Yeti's Marks.
3 PRAYER FOR RELIEF
4 WHEREFORE, Yeti requests a judgment in its favor and against NPK and Tang,
5 including the following:
6
7
A. On Yeti's First and Second Claims for Relief:
1. Pursuant to 15 U.S.C. 1117(a), Yeti's actual damages, NPK's profits,
8 and the costs of the action;
9 2. Pursuant to 15 U.S.C. 11 17(a)(3), enhanced dan1ages in an amount
10 up to three times actual damages;
11 3. Pursuant to 15 U.S.C. 1117(a)(3), Yeti's reasonable attorneys' fees
12 and costs; and
13 4. An injunction against NPK's use in the future of Yeti's Marks, or any
14 colorable imitation or confusingly similar variation of Yeti's Marks, or any indication that
15 Yeti's Products are affiliated with NPK's products.
16 B. On Yeti's Third Claim for Relief:
17
18
19
20
21 Yeti's Marks.
1.
2.
3.
4.
Yeti's actual damages in an amount to be determined at trial;
NPK's profits;
Yeti's reasonable attorneys' fees and costs; and
An injunction against NPK's continued unfair competition using
22
23
24
25
26
c. On Yeti's Fourth Claim for Relief (Counts 1 and 2):
1.
2.
3.
Page 22 - COMPLAINT
74034342.4 0048752 00001
Punitive damages;
Yeti's reasonable attorneys' fees and costs;
Exhibit A
Page 23 of 39
4. A declaratory judgment that NPK's trademark registration of "Mighty
2 Wash" in international Class 003 is invalid and void; and
3 5. A declaratory judgment that NPK's trademark registration of"Mighty
4 Wash" in international Class 005 is invalid and void.
5
6
7
8
9
D. On Yeti's Fifth Claim for Relief:
1.
2.
3.
Punitive damages; and
Yeti's reasonable attorneys' fees and costs.
E. On Yeti's Sixth Claim for Relief (Counts 1, 2, 3, and 4) and Seventh
I 0 Claim for Relief:
11
12
13 invoices;
14
15
16
17 fees and costs.
I.
2.
3.
4.
5.
Damages in the amount of$20,013.56 for insurance costs;
Damages in the amount of $56,860.31 for interest on untimely paid
I b 671f57
J
Yeti's lost profits in an amount to be determined at trial;
Yeti's reputational damage in an amount to be determined at trial; and
Pursuant to section 21 of the Agreement, Yeti's reasonable attorneys'
18
19
F. On Yeti's Eighth Claim for Relief:
I. A declaratory judgment that: (a) the Agreement does not give NPK
20 exclusive rights to distribute Yeti's Products; (b) NPK has breached the Agreement; (c)
21 Yeti's communication with Sunlight or any other buyer does not constitute tortious
22 interference; and (d) Yeti may sell its products directly to Sunlight or any other buyer using
23 Yeti's Marks.
24 Ill
25 Ill
26 Ill
Page 23 - COMPLAINT
74034342.4 0048752- 00001
Exhibit A
Page 24 of 39

(1\<;::,

.<;::.

:St!;;;::;-
,..o<:::>

<;::.
J
"""'
o!:l,:.

(j!Q.
.s

Cl)
8
a..
1 G. On All Claims for Relief:
2 1. Yeti's prevailing party fees, attorneys' fees, costs, pre-judgment and
3 post-judgment interest; and
4
2. For such further relief as the Court deems just and equitable.

5 DATED: June 17, 2013.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Page 24 - COMPLAINT
74034342.4 0048752- 00001
STOEL RIVES LLP
DANI L INTI, 0 B No. 084353
dcocchi pinti@stoel. com
STEVEN T. LOVETT, OSB No. 910701
stlovett@stoel.com
Attorneys for Yeti Enterprises, Inc.
Exhibit A
Page 25 of 39
DISTRIBUTION AGREEMENT
{ .
.
l.
Exhibit A
Page 1 of 12
Exhibit A
Page 26 of 39
-. ::;
,.:;. ,1 L :: E:

--'
.. n.
,. r
:T r 1 ', ::

R::.s r.
fl ve
I::, '
-. -'! year:s
1
,.
,, I 2DH.
?a c:-. men ::.n.
Exhibit A
Page 2 of 12
Exhibit A
Page 27 of 39
,/;:"1'--

.... e .. : :-:-
' ... :.:..:.
;.; :. -. .:. ,::! ; '
' r..:. .... ...;,.,. ;:
. _. \,. - I
:. 1. :
- S<'::.Jf .
.:.. ..,,
- :c
e::-;-:.::-: 1-:Jr:.
':. -,: s
-- ......
!-"l:l.!. '-
Exhibit A
Page 3 of 12
Exhibit A
Page 28 of 39
' - . ~ , . . .
.. - 'J' f
1 1 . s
J1STR:5lJTOR
-:..-.:: rge,
t: oa,
. ,
keej:: t:;r::
.:on:.zst.e:::
l.l.
as sa s S:Tier: t ~ , , or
Exhibit A
Page 4 of 12
Exhibit A
Page 29 of 39
rna ir.ta :.:1
:: : R B . J -:' 0 P GJ:' r.. l l
;...
,,
.. d -! 1.:, ._, f l ": _; ::: 1;:. L:.. ... r:...: [ I
:a:.lu..:-e
::: rr.:ne :-1 :..;; L.. r :. t i :; -:
::
-.,.....,....-c..
.. " .. ....
,.;i
. r:
......
i -,surar.ce,
'i
- w'
Exhibit A
Page 5 of 12
Exhibit A
Page 30 of 39
..
. . .": : . t..t
-" .:..
_; = .: ''- ! : i:;. r.
.!
.. ,.
.
-'::
1.., r... ; _:.. c T r 1 t- E' !'
n-."-
' '
.J.... '
: J. ; __ j
... - -. . .
II - I . 1_... -
:. ,, ::-- : :,J.
r- :- :.:-: : ... .. :J
...... - F- L
' I j' I.!.', I- I;"
- :
,.
. -
:- . .:. .. : -:--. ;_ ' ;
,. =1n::: n)t
.1.' .
L. : ,_;, ...
j: ''..l
by
::i :- l:m.L:.;;t:.cr.
-.-
.. -
t,
s .- r rr a v : 'J <;
:. : .;> L i.::
. ;, : 1.
... '
__ :ng
Exhibit A
Page 6 of 12
Exhibit A
Page 31 of 39
; ,; -.
- -, ....

.. -. ...
.,;
-,. ;-..;
... '

.-
. ' .-
.-
.....
,. : .. .
.. J . ..
:. t . l ....
::! .I '.1 .. .
- , .. .: ..
:-: r.
. .. _ ..
,-::
,:,,, ... :.
==-=
.:._ ....... ! ::..H
'
.;., .. i ,.. .. ..:._1
: --=-. ..... :. .:.. r
I ...
I I ''"
... . 1.
1.- .. ;-.
:
. ', .. t l, :_' .:: . '-
t r __,

. . . "'
..... - -
: .. !
i _ _ I
..
-
. ;. r: .:. ,, .::.
.j : ; . "ft:- 5 ..
. -. .-
1
-:.:..
i ,. ,,
. '
L.::
:;- r. - ,--
... ;-::.i-.

.":'"
; .. !;
!,_ . : , l: I= :
.. -; ._:_. r
l
'
.. -.
... : : .. :. :
.. ..
J: 1
.1 I';-.
' .
, ........ .
,. .... -
-
. ..
. ' .
. - L -.
".: ..-; .... :,._ :: -.
l :..--::
.-
- ' ..
Exhibit A
Page 7 of 12
Exhibit A
Page 32 of 39
I t
.:. l .
r:c
- -.
'
--.
2?..
.;::. fcrce
NCt"C:?:S;
tne terms ::>
JlSlR:SJIOKS,
1574
Medfo:d, OR
- '
''
p05' tage an::J
'fET:I H::::Cf'.PC?.?-.':'!:.C
1 4 12 r:. S E [) i ._.:.sic r. 3:: t .:: e t:
:::;;;,
SIE:VEN ::':'P
:.l:
8 5 C s . t:J s :_: s F t r, : c d
.3 .: :. t e 3 :)
l?o:t:.eno, OR 97:::27.
t; e r:- f f e c: i v e
Exhibit A
Page 8 of 12
Exhibit A
Page 33 of 39
.. \' -:'I 11.:;
,... ...... ..
.
-:.::- .!' =: ::.::e
r , ..
' ..! - .

: , !}
... h
,.
..
,I '
-,.L .. : . L:.;
;; ..
;,
...
i: i
'!..' ;:: '
I
i:o.:- t .. ' .' ?
-..: .,
:'
1,.
:-: :: ::1:
:-: ,=: : --. i.
,. ,.
..
:":'
,.
t:'.-- ...
'T . -''
- .t J.
:- . - .- ,: :- -
. ! -:. :. ! - f;
I ,.. r
'1- ; l l!J.
!. ... -;I i
. .
- : ::
. ..
. -
''
!.I
' I
. ... :
.
i: ::."E.:--
1 - .!.: .
,.: J't:- I I -
- .. /;: l
., . . I
. '
.
_,
. . .
.. .::'::."'
n . , ... ,: .-. -
.:.
;.: :
I ' l:
- :-. \' - - ... - .::_ j_ - j I
,.
.... J . ... - ':...,- , _-_-.,:_, -:., :,t , .:.r.: ' ':
,.
, I
;:;
1
..
\ ,.:.
/."
_ ;:.; , .......,_ ...
_ ... r
. .. -.
::I .
: r;- t , -
...... f
;: .... _
.-.
; t... .. L
.1.-::
.... o
!!:... :i ...
Exhibit A
Page 9 of 12
Exhibit A
Page 34 of 39

NFK Ll:

'::
1
:-rnp;;. rJ
.......
I
::.; : / /
_ __._, .-- --::?---

Exhibit A
Page 10 of 12
Exhibit A
Page 35 of 39
~ : : . . . ~ ,
. .
.. . : ~ . ' : ,_: ~ :. - ..
.. .. _ :'
I
- _ _ , - ..I
Exhibit A
Page 11 of 12
Exhibit A
Page 36 of 39
Yeti Final Proposal
2/17/2011
We will lower our prices to you for 2012 they will be $5.00 i:l
g<J!lnn. l'n\vcr Wash rq; $3.00 a gallon, and PM @ $3.00 a gallon.
Pricing to be reviewed in July 2012 and to be sure that we are on tract with
this <Jgrccment.
only way that we can do this pricing is to rise how much you order. It
must increase appro:ximatdy 30%. As follows:
Last year 2011 )'ou ordered a total of 314 totes of Mighty.
Mighty nrdc::rs nit!l.!d to he 408 totes a yr = 3 7 totes per month.
Lust year 201 I y<)U ordered a total of41 totes of Power Wash.
Pov.cr Wash orders need to be 66 totes a yr. = 6 totes nf Power Wash.
Last ycur 2011 you ordered a total of 64 totes or PM.
PM orders need to be 88 totes a yr. = 8 totes of PM.
Thl.! Power Wash and PM Wash can be in any combination as long \:IS the
two tntul 14 totes a month. _,
We will nceJ to have these prices reviewed asain at th!! end of the year Dec.
2012. Because at these Yeti will make very little pro1it. In fact we will
loose monc> the lirsl 6 months. We hope to make it up the second half of
ycur.
lf sah:s tlon 't incrl!ase the 30%. Yeti will be forced to raise there prices to nt
lcusl to Mighty $6.00. PM and Power Wash to $4.00.
J:vcry order musl he paid in full45 days from the billing date. If it is not paid
in full ull1..1rders will be paid C.O.D. when product is ordered. until NPK c.:an
pay the balance in Cull on time for 2 billing cycles. 1l1i:; is to show there
willingness to stuy in l:ompliance.
The balant.:c that will sti II be owed t$199,294.00 less payments of $70.000.00
by April 1. 2012 lcavt!s a balance of$129.294.00) to be paid throughout the
year .2012 in Pink Sauce us needed. Ifat the end ufthc year (Dec 24, 2012)
any h.alancc still owed will be paid to us in full by Dec 24.2012. At that Lime
will be able to pay for sauce when ordered.
lf cruJ be agreed to we will not charge interest on the balance being used
ror Pink Sauce. But if at the end of the year (Dec 24. 2012) we are not paid
in full you will be charged interest at the rate of18l< from April I. 20121o
J;llc // /f 1' -?__ , '
/!/
.( f'i._ _ c Exhibit A C
"" /7 /J Page 12 of 12
'' l..-<c::: '' K'J
1
rr::..
Exhibit A
Page 37 of 39
DIRECTIONS FOR USE:
Ptnrr Wah tlo.:si,gncd
111 \\'Hsh awuy all residue
left behind from olhcr
Sutur.nc the
and the tops pf
::!4 lo -18 hours nfh:r
the usc or olhcr
Cinod CUVL"TIItlL' is ,.,St,JfiaJ
lor apply as t>J\cn
needed, including tbc
dny or blllVcsl. Only
directed
READY TO USE
JNOTDILUTE
..
. ,
"That Stuf(" ,, ,,.

,Powe h
IUIAD rousa
00 NOT OlU1Il!
\Vater .. . .
lm:rt Ingredients .0.{){1111%
llliADY '1'0 USE
DONOTDILtnli
J J,l,,
Exhibit A
Page 38 of 39
I ' ' ' - 1 I t : I
I ot1 11' !fl\-, I
,..._ ...... j, , I 1':.
I" '' ! ' ;I ._, J
, 1 \. L . , .1
01jw " ' t I '1..1. ! ft o I JJ., I
I : otr. " I I \'h
"' , M hol h I
...... , : ,,,,, ,,

oJCt f"' to; tt& :; L .
t,,-4 h ,"11 lfAifll !1 I I'
' , ' ' I ' ' ' , " ' ' . ' -. I
II',, '"'i I>L iJ ' ' I
\j ;h ' r1, n ,. .. '
lt. th....luv. 1hr .t., I "-' -"'
I I hi J1 I I o J
RLAII I 1111J.'Jt.

74Mitn31 I OU4R752.(Jll00 I
' ' JI J , , ,.
IU . .\IIt lll
1)0 n11 1 n
"'lll)-
"
Exhibit C
Page 1 of 1
Exhibit A
Page 39 of 39
"NPK Industries" presents
Revolutionary New Plant Technology,
discovered while researching a
solution for world hunger
through increasing ( ~
food crop
yields.
Soan Code tor Time-lapse VIdeo
NPK-Industrles.com :6
Exhibit D
Paae 1 of 1

Yeti Enterprises Complaint

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Yeti Enterprises Complaint

Uploaded by

Copyright:

Available Formats

Exhibit A

Case 3:13-cv-01203-ST Document 1-1 Filed 07/17/13 Page 1 of 40 Page ID#: 4

You might also like