Complaint Flatout

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MICHIGANSOUTHERN DIVISIONFLATOUT, INC.,a Delaware corporation,Plaintiff,v.34 DEGREES LLC,a Colorado limited liability company,Defendant.Civil Action No.:HonorableMagistrate

Demand For Jury TrialCOMPLAINT

Plaintiff Flatout, Inc. (“Flatout”), by and through its attorneys, Dobrusin & ThennischPC, hereby complains against Defendant 34 Degrees LLC (“34 Degrees”) as follows:

NATURE OF THE ACTION

1.

For more than ten (10) years, and prior to 34 Degrees conduct described below,Flatout and its predecessors have manufactured, distributed, promoted, and sold bakery goodsand other food items, including bread and cracker products, to the consuming public under thefederally registered trademark, FLATOUT®. 34 Degrees has recently adopted and began usingthe mark, FLAT OUT GOOD, prominently on its crispbread and cracker products in an attemptto trade off the commercial magnetism and goodwill of Flatout’s FLATOUT® mark and todeceive and confuse the public into believing that 34 Degrees and its crispbread and cracker products that bear the FLAT OUT GOOD mark are somehow connected to, affiliated with, or authorized by Flatout.

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2.

Since learning of 34 Degrees infringement, Flatout has repeatedly attempted toresolve this matter without involving the Court. Flatout has repeatedly asked 34 Degrees tocease use of the designation FLAT OUT GOOD. 34 Degrees, however, has refused to stop, has persisted in its intentional infringement, and has left Flatout no choice but to bring this lawsuit to prevent 34 Degrees from further deceiving and confusing the public and harming Flatout’sgoodwill.3.

Accordingly, Flatout brings this action for (i) federal trademark infringement inviolation of Section 32 of the Lanham Act, 15 U.S.C. § 1114, (ii) federal unfair competition,false designation of origin, and false representations in violation of Section 43 of the LanhamAct, 15 U.S.C. § 1125(a), (iii) false and deceptive trade practices under the laws of the State of Michigan, MICH COMP. LAWS § 4415.901

et seq.

, and of all the states in which 34 Degreeshas sold its products, and (iv) for trademark infringement, unfair competition, and unjustenrichment under state common law.

THE PARTIES

4.

Plaintiff Flatout, Inc. is a corporation organized and existing under the laws of theState of Delaware with its principal place of business in this judicial district, in Saline, Michigan.5.

Defendant 34 Degrees LLC is a limited liability company organized and existingunder the laws of the State of Colorado with its principal place of business in Denver, Colorado.34 Degrees may be served at 668 Clarkson Street in Denver, Colorado 80218.

JURISDICTION AND VENUE

6.

This Court has federal question jurisdiction over the subject matter of this action pursuant to 15 U.S.C. § 1121, 28 U.S.C. §§ 1331, 1338, and 1367(a).

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7.

This Court has personal jurisdiction over 34 Degrees because 34 Degreestransacts business within this state, has caused injury to Flatout’s property which lies in this judicial district, and has otherwise made or established contacts with this state sufficient to permit the exercise of personal jurisdiction over it.8.

Venue is proper in this case under 28 U.S.C. § 1391(b) and (c) because asubstantial part of the events or omissions giving rise to Flatout’s claims occurred in this judicialdistrict, in that 34 Degrees has conducted the activities that are the subject of this action in this judicial district.

FACTUAL BACKGROUND

Flatout and Its Federally Registered FLATOUT® Mark

9.

Flatout is a family-owned and operated producer of innovative bakery productsand concepts that was started in the Ann Arbor, Michigan area by two graduates of MichiganState University and has since grown into a business which provides and distributes food itemsand bakery goods, including bread and cracker products, nationwide in numerous nationalgrocery and supermarket chains, including Kroger®, Meijer®, and Walgreens®, as well as “big box” retailers such as Wal-Mart® and Costco®.10.

Since at least as early as 1999, Flatout and its predecessors have manufactured,distributed, promoted, and sold prepared food items and bakery goods, including bread andcracker products, to the consuming public under the federally registered trademark,FLATOUT®.11.

Due to Flatout’s long and continuous use of the FLATOUT® mark in connectionwith its food products, the mark is widely recognized by the public as an indicator of the sourceof Flatout’s goods.

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