Batey Zipline v. Atabey

Case 3:12-cv-01073 Document 1
Filed 02/06/12 Page 1 of 47
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Jorge Perez Veve, Batey Zipline Adventure, Inc. PLAINTIFFS v.
Civ. No.
Julissa Corporan, Atabey Eco Tours Corp. DEFENDANTS
TRADEMARK INFRINGEMENT, TRADE DRESS INFRINGEMENT, FALSE DESIGNATION OF ORIGIN, FALSE ADVERTISEMENT, PRODUCT DISPARAGEMENT, DEFAMATION INJUNCTIVE RELIEF, UNFAIR COMPETITION, DAMAGES, EX PARTE GARNISHMENT AND STATUTORY DAMAGES.
(TRIAL BY JURY DEMANDED)
VERIFIED COMPLAINT TO THE HONORABLE COURT: Plaintiffs Jorge Prez Veve and Batey Zipline Adventure, Inc. (hereinafter Plaintiffs) by, and through their undersigned counsel, allege the claims set forth in this Complaint. Plaintiffs claims, as to themselves, and their own actions, have as a basis the Plaintiffs own personal knowledge. All other allegations are based upon information and belief. A verification of these facts is enclosed, as a declaration made under the penalty of perjury, attached hereto as Exhibit 1. I. JURISDICTION AND PROPER VENUE 1. This action arises under the Trademark Act of 1946, the Lanham Act, (15 U.S.C.A. 1051 et seq.), as amended, and particularly under Sections 32, 34,
35, 43(a)(1)(A) and 43(a)(1)(B) of the Act (15 U.S.C.A. 1114, 1116, 1117 and 1125a) as more fully appears in this Complaint. This United States District Court for the District of Puerto Rico has jurisdiction under Section 39 of the Lanham Act (15 U.S.C.A. 1121). This Court also has jurisdiction over this action pursuant to 15 U.S.C. 1121 (actions arising under the Federal Trademark Act), 28 U.S.C. 1338(a) (acts of Congress relating to trademarks), and 28 U.S.C. 1338(b) (pendent unfair competition claims). 2. This action also arises under Puerto Rico Law 169, enacted the 16th of December 2009, known as The Puerto Rico Trademark Law, 2009 L.P.R. 169 (hereinafter PRTL); Puerto Rico Law 139, enacted the 13th of July 2011, known as Ley del Derecho sobre la Propia Imagen, 2011 L.P.R. 139; and Article 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. 5141. It is requested that the United States District Court for the District of Puerto Rico court assume Ancillary Jurisdiction over any matters that arise under given laws, as they are intimately related and parallel to the Federal trademark and trade dress infringement claims, pursuant to 28 U.S.C. 1367. 3. Venue is proper in this district under 28 U.S.C. 1391 and 1400 because Defendants conduct business in and because claims alleged in this Complaint arose in this judicial district. 4. This action arises out of Defendants false, deceptive and misleading marketing, distribution, offering for sale and sale, of services in a manner that infringes upon the rights that Plaintiffs have in their BATEY ZIPLINE ADVENTURE LINE
trademark and trade dress. 15 U.S.C. 1125(a); Two Pesos Inc. v. Taco Cabana Inc., 505 U.S. 763, 776 (1992) 5. Defendants unauthorized use of a trade dress that is long used by Plaintiffs in connection with the distribution, marketing and sale of its services, is deceptive and may confuse the consumer as to the origin of its services. In fact, the consumer may believe that the services which Defendant markets, distributes and offers for sale, are in some way associated with, licensed by, or otherwise authorized or sponsored by Plaintiffs. 6. Defendant also uses a trademark that is confusingly similar to Plaintiffs trademark and for exactly the same services as Plaintiffs services, in the commerce of Puerto Rico. Both of them have the Internet as their distribution channel. 7. Defendant made and published disparaging statements regarding Plaintiffs business and defamatory remarks concerning the person of Mr. Perez. As a result of these unfair trade actions Defendant has inflicted harm and substantial injury to Plaintiffs commercial and personal reputation. 8. By this action, Plaintiffs seek damages and permanent injunctive relief pursuant to Sections 32, 34, 35, and 43(a) of the Lanham Act, 15 U.S.C. 1116, 1117, and 1125(a), as well as the Common Law. 9. Plaintiffs also seek damages and permanent injunctive relief pursuant to Articles 26 and 27 of the Puerto Rico Trademark Law and damages pursuant to Article 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. 5141.
II. PARTIES 10. The Plaintiff, Batey Zipline Adventure (hereinafter BATEY) now is, and at all times mentioned in this Complaint was, a corporation duly organized and existing under the laws of Puerto Rico, with its principal place of business in Utuado, Puerto Rico. 11. The Plaintiff, Jorge Prez Veve (hereinafter Mr. Prez) now is, and at all times mentioned in this complaint was, a natural person and businessman, who operates under the existing laws of Puerto Rico, with his principal place of business in Utuado, Puerto Rico. 12. Defendant, Atabey Eco Adventures Corp. (hereinafter ATABEY) now is, and at all times mentioned in this complaint was, a corporation duly organized and existing under the laws of Puerto Rico, with its principal place of business in Mayaguez, Puerto Rico. 13. Defendant, Julissa Corporan, (hereinafter Ms. Corporan) now is, and at all times mentioned in this complaint was, a natural person and businesswoman, who operates under the existing laws of Puerto Rico, with her principal place of business in Mayaguez, Puerto Rico. III. FACTUAL BACKGROUND 14. BATEY is a corporation that for years, and certainly long before the acts of infringement, as they are affirmed in this Complaint, has been engaged in the business of eco tourism and agriculture. BATEYs services are provided within Mr. Prez land property. Mr. Prez land property is located in Utuado, Puerto Rico, in an area commonly known as the Tanam River Region.
15.
Mr. Prez is a natural person that for years, and certainly long before the acts of infringement, as they are affirmed in this Complaint, has been engaged in the business of eco tourism and agriculture.
16.
By January, 2003, Mr. Prez began to look for endorsements to launch his business in the Puerto Rico eco tourism industry. In 2003 he submitted a
business proposal to the United States Forest Department (hereinafter the USFA) by way of the Puerto Rico Natural Resources Department (hereinafter the DRNA), for the development of an eco tourism and agricultural project in his land property. The proposal had as objective to build the necessary infrastructure for tourism activities related to adventure, agriculture and education. Said
infrastructure consisted of a suspended bridge and platforms for sightseeing or for the so-called canopy tours. 17. With this project Mr. Perez hoped to make a contribution to the sustained development of the area that surrounds the Tanam River, providing the local economy with tourism, agricultural, gastronomic, educational and cultural related activities, while protecting its natural resources and the communitys traditional knowledge. The aforementioned proposal was approved by the DRNA in 2003 and by January 2006 said infrastructure was fully operational. 18. By January, 2007, Plaintiffs began to use the BATEY ZIPLINE ADVENTURE trademark and BATEYs trade dress in commerce, as source identifiers for their eco tour services. trademark: This is a sample of the BATEY ZIPLINE ADVENTURE
Exhibit 2: Trademark BATEY ZIPLINE ADVENTURE
19.
On September 6, 2011, Mr. Prez applied for the registration of the BATEY ZIPLINE ADVENTURE trademark in the United States Patent and Trademark Office (hereinafter the USPTO) for services related to eco tourism. On the same date he applied for the registration of the same mark in the Puerto Rico Trademark Office (hereinafter the PRTO) for services related to eco tourism. The USPTO has issued a Notice of Allowance for the BATEY ZIPLINE ADVENTURE trademark. The application for trademark registration in the PRTO is pending for examination.
20.
The trade dress of BATEY comprises an overall arrangement of elements that include a suspended bridge, caves, hiking paths, a sustainable or eco friendly farming system, forest and hills, and a network of platforms interconnected by zip lines (or canopies). All of these elements either form part of Plaintiffs land
property or were developed in it for commercial activities related to BATEYs eco tour services. 21. BATEYs trade dress or commercial image is best represented on its Web site: www.elbateydelcemi.com.
22.
BATEYs trade dress has been marketed in relation to the BATEY ZIPLINE ADVENTURE trademark. And both, the BATEY ZIPLINE ADVENTURE trademark and BATEYs trade dress, have been advertised through BATEYs Web sites: www.elbateydelcemi.com and www.bateyziplineadventure.blogspot.com.
Moreover, BATEYs eco tour services, as identified in commerce by the BATEY ZIPLINE ADVENTURE trademark and BATEYs trade dress, are and have been offered and sold through BATEYs Web site. 23. These images are samples of the way the BATEYs trademarks and trade dress are used for marketing purposes: Exhibit 3: the BATEY ZIPLINE ADVENTURE trademark and BATEYs trade dress, as illustrated in BATEYs Web site.
24.
Plaintiffs have, at a great expense and effort, developed, marketed and distributed products and services under the BATEY ZIPLINE ADVENTURE trademark and BATEYs trade dress. These efforts include the advertisement of products and services in different markets in association with businesses such as: ENTERPRISE RENT A CAR, LANES RENT A CAR, PINTOS ARE US,
TAINO DIVERS, RINCON VACATIONS, ACAMPA NATURE ADVENTURES, 8
ECO ACTION TOUR, SAN JUAN TOUR and YUNKE ZIPLINE ADVENTURE. Plaintiffs have run advertising campaigns in towns of Puerto Rico like Rincon, Aguadilla and Isabela, using banners and postcards like for instance: Exhibit 4: BATEY ZIPLINE ADVENTUREs banner.
25.
In 2008 the BATEY ZIPLINE ADVENTUREs products and services (or the BATEY ZIPLINE ADVENTURE experience) were promoted in GEOAMBIENTE, a TV program that was transmitted by local channel WIPR. In 2011 the BATEY ZIPLINE ADVENTURE experience was also promoted in One Caribbean Television, a weather and entertainment TV program transmitted by CBS TV & One Caribbean WSEE.
26.
In 2008 the BATEY ZIPLINE ADVENTURE experience was promoted in Que Pasa, a leisure and tourism magazine. It was also promoted in the TRIP
ADVISOR.com, a website that advertises and provides reviews related to leisure and tourism products and services. In 2011 the TRIP ADVISOR.com awarded
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the BATEY ZIPLINE ADVENTURE experience for its services, as provided in a Certificate of Excellence (2011). 27. In addition, the BATEY ZIPLINE ADVENTURE experience has been and still is offered for sale by e-marketing service providers such as: gustazos.com, puertoricoexplore.com, puertoricodaytrips.com and Rinconvacation.com. 28. From 2007 and as of today, the sales of Plaintiffs under the BATEY ZIPLINE ADVENTURE trademark and BATEYs trade dress are estimated to be in excess of $370,000,000 and the Plaintiffs have spent in excess of $50,000 in the trademark and trade dress development, including advertisements in printed, visual and electronic media. Many visitors from around the world, that is, from places like the US, Europe, China, Japan, and also from Puerto Rico, take trips to Utuado in search for or to enjoy the BATEY ZIPLINE ADVENTURE experience. 29. As a result of Plaintiffs' sales, the advertising and promotion of its product and services under the BATEY ZIPLINE ADVENTURE trademark and BATEYs trade dress, as described above, and as a result of the widespread use and acceptance of the services by the public, BATEYs services have come to be, and now are, well and favorably known to the public under the trademark BATEY ZIPLINE ADVENTURE, and the BATEY ZIPLINE ADVENTUREs trademark and BATEYs trade dress have become distinctive for Plaintiffs' goods, as they are sold in commerce. In fact Plaintiffs trademark and trade dress represent one of Puerto Ricos leading brand in eco tour services as BATEY has become one of
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the island top eco tour service provider, proof of which is found in the Trip Advisor & Puerto Rico Day Trips. 30. The sale of BATEYs services has been significant due to the continuous investment in the advertisement of the BATEY ZIPLINE ADVENTURE experience. The use of the BATEY ZIPLINE ADVENTURE trademark and BATEYs trade dress, in connection with the BATEY ZIPLINE ADVENTURE experience, have been extensive and as such, said trademark and trade dress have become in their own rights distinctive symbols in regards to the source of Plaintiffs products and services, and they stand for their quality and commercial reputation. Accordingly the BATEY ZIPLINE ADVENTUREs trade dress has developed a secondary meaning, a substantial commercial reputation and associated goodwill that makes this mark, together with the BATEY ZIPLINE ADVENTUREs trademark, known in commerce, giving them an added brand value that belongs exclusively to the Plaintiffs. 31. Ms. Corporan and ATABEY began to do eco tours in areas nearby the Tanama River as early as the month of January, 2011. By late February, 2011, Ms. Corporan and ATABEY began to invade Mr. Perez land property in order to do their business, doing eco tours on caves and using facilities such as the suspended bridge, without Mr. Perezs authorization, solely for the benefit of ATABEYs commercial endeavor. 32. By late February and the beginning of March, 2011, Mr. Prez began to notify ATABEY and Ms. Corporan about their unauthorized use of the suspended
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bridge and overall land property. Mr. Prez also notified Ms. Corporan about the use of photos of Plaintiffs property for the advertisement of ATABEYs services. 33. On March the 2nd, 2011, Mr. Prez posted a message on Ms. Corporans Facebook Page to notify her and ATABEY about their non authorized use of the suspended bridge and photos or images of Plaintiffs property, for their business and commercial advertisement. 34. At least a week after posting said notification a tour guide from ATABEY approached Mr. Prez and ask him to consider an agreement for the use Plaintiffs property, in particular for the use of the suspended bridge. Mr. Prez answered by expressing that before considering any agreement ATABEY and Ms. Corporan had to stop using photos of Plaintiffs private property for commercial purposes without his authorization. Mr. Prez added that he had already notified Ms. Corporan about these circumstances. 35. A couple of days later ATABEYs tour guide and Mr. Prez met again. Once again ATABEYs tour guide insisted on the use of the suspended bridge. ATABEYs tour guide told Mr. Perez he informed Ms. Corporan about the photos but that she simply would not accept to remove the photos of Plaintiffs property from ATABEYs website and Facebook Page. At least, as far as Mr. Prez
knows, said tour guide was later fired by Ms. Corporan. 36. ATABEY continued to bring more tourist groups for eco tours in Plaintiffs land property while using Plaintiffs facilities at the same time, and making false representations about the origin of ATABEYs services, by using photos of Plaintiffs property in ATABEYs Web site, for example, images of its caves.
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These are samples of photos of Plaintiffs land property as they are used in ATABEYs website: Exhibit 5: photos of Mr. Prez land property as uploaded and posted in ATABEYs Web Site
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37.
Photos of Plaintiffs property also were promoted in TRIPADVISOR.com under the ATABEY ECO ADVENTURE trademark: Exhibit 6: photo of Plaintiffs suspended bridge as promoted by ATABEY in TRIPADVISOR.com.
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38.
These photos were uploaded in Ms. Corporan personal Facebook page and ATABEYs Facebook: Exhibit 7: photos of tourist group from ATABEYs eco tour and BATEYs Non Trespass sign on the floor.
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39.
By late April and the beginning May, 2011, Mr. Perez and BATEYs personnel had to rescue ATABEYs tour guides and a group of tourist lead by them, from a dangerous situation. They found themselves stranded and been pulled down the
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Tanama River by a stroke of water. The tourists began to scream for help. Mr. Perez instructed BATEYs personnel to assist ATABEYs tour guides and tourist out of the water, and to guide them to a safety zone. Soon after Mr. Perez allowed ATABEYs tour guides and their tourist to pass through the suspended bridge in order to cross the Tanama River. 40. Every eco tour company that passes through Plaintiffs land property or uses its facilities has to be authorized previously by Mr. Perez for reasons such as safety and security. Also, due to the liability behind whatever happens inside Mr. Neither ATABEY nor Ms. Corporan ever had such an
Prez land property. authorization. 41.
By the end of June and the beginning of August, 2011, Mr. Prez and Ms. Corporan had a meeting. Mr. Prez asked her about ATABEYs continuous use of the suspended bridge and invasion of Mr. Prez land property, and also in relation to the use photos that depict Plaintiffs trade dress or commercial image on her and ATABEYs Web site. Ms. Corporan claimed that she and ATABEY could use the suspended bridge any time because it was public, and that she did not had to remove the photos from her or ATABEYs Web site. Mr. Prez once again explained her that the bridge is BATEYs private property, and that neither Ms. Corporan nor ATABEY had the right to use photos of Plaintiffs land property for their commercial benefit. Ms. Corporan stated that she did not care about his reasons and that she would continue to use the bridge, and photos, for commercial purposes.
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42.
From said reunion, and thereafter, Ms. Corporan and ATABEY persisted in their illicit conduct, invading Plaintiffs land property, using its facilities and photos to promote ATABEY eco tour services. Mr. Prez decided to put up No Trespass signs in his property but Ms. Corporan and ATABEY pay no attention to them and continued their illicit actions.
43.
On October the 25th, 2011, Mr. Prez once again called Ms. Corporan in order to discuss ATABEYs continuous unauthorized entrance and use of Plaintiffs property. They met at Parque Ceremonial Caguana, in Utuado. In this reunion Ms. Corporan and ATABEYs tour guides insisted on the fact that ATABEY could go freely into Mr. Prez land property. Ms. Corporan expressed that ATABEY had access to any hiking path in Plaintiffs land property, to any cave, and even to the suspended bridge. Mr. Perez insisted that they had to reach an agreement since both companies, ATABEY and BATEY, were continuously doing eco tours in his land property.
44.
One of ATABEYs eco tour guides told Mr. Prez that he had to make a proposal to ATABEY for the use of Plaintiffs property. Mr. Perez replied by stating that in any case it had to be Ms. Corporan and ATABEY the ones to make an offer because the purpose behind any proposal was the use of Plaintiffs property.
45.
On October the 26th, 2011, Ms. Corporan brought DRNA officials to Plaintiffs land property. Once again Ms. Corporan crossed Plaintiffs suspended bridge and invaded its land property. Mr. Perez stood in one end of the bridge and he recorded Ms. Corporan as she crossed the bridge walking towards him. As she approached Mr. Perez once again notified her that she was entering Plaintiffs
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property and that her access was not authorized. Ms. Corporan continued her way forward and in the end of the breach forced her entry with violence. 46. On November the 2nd, 2011, Ms. Corporan and ATABEY published a letter in the Facebook page of the Utuado Hoy.com, a local newspaper. In said letter Ms. Corporan made a large number of false statements regarding BATEYs eco tour services. This publication was also uploaded in her personal Facebook Page and ATABEYs Facebook Fan Page. Ms. Corporan accusations were made in complete disregard of the truth. As a result Mr. Perez felt humiliated and
BATEYs commercial image and reputation was tarnished; or damaged. 47. Through their false representations Ms. Corporan and ATABEY not only managed to damage BATEYs commercial image but also to harm Mr. Perez personal reputation. Ms. Corporans statements included mendacity regarding Mr. Perez name and personal image, as his photos were uploaded as part of the publication in the same Facebook pages. Exhibit 8: this is a copy of Ms. Corporans false representations as published in Facebook.
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48.
On November the 8th, 2011, Ms. Corporan and ATABEY were notified by Certified Mail of their illicit conduct and of the fact that because of their actions they had incurred in unfair competition, defamation and product/service disparagement, false advertising, beside other violations to Federal and State Trademark and Unfair Competition Laws, and as such, remedies were to be sought in a Federal Court of Law. Ms. Corporan also was advised to
immediately cease and desist in regards to her and ATABEYs illicit conduct and as to any other deceptive commercial practice. IV. ACTS OF INFRINGEMENT FIRST CAUSE OF ACTION Trademark Infringement Section 43(a), 15 U.S.C. 1125(a) of the Lanham Act
49.
Plaintiffs repeat and restate each and every allegation of fact set forth in paragraphs 1 through 48 of this Complaint as though fully set forth herein.
50.
By the month of January, 2007, Plaintiffs began to use THE BATEY ZIPLINE ADVENTURE mark in interstate commerce as a source identifier for eco tour services.
51.
The eco tour services of BATEY have been marketed in relation to Mr. Prez land property and have been offered within said property.
52.
By late February, 2011, Ms. Corporan and ATABEY began to enter and offer eco tour services in Mr. Prez land property without authorization.
53.
In spite of Plaintiffs rights and prior use of the BATEY ZIPLINE ADVENTURE mark Ms. Corporan and ATABEY adopted and began to use a similar designation,
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the ATABEY ECO ADVENTURE mark, to identify services that are identical to the services provided by BATEY. 54. The confusion created by the similarity of the BATEY ZIPLINE ADVENTURE and the ATABEY ECO ADVENTURE marks increases because ATABEY offers eco tour services in Mr. Perez land property. To be precise, Ms. Corporan and
ATABEY have been offering eco tour services in Mr. Prez land property, with no authorization, to the same class of prospective purchasers that pay for BATEYs services. 55. Furthermore Ms. Corporan and ATABEY have used photos of Plaintiffs property, or its commercial image, for instance, images of the suspended bridge and caves, to market their own eco tour services. 56. The adoption and use by ATABEY of the ATABEY ECO ADVENTURE mark on and in connection with eco tour services is likely to cause confusion or mistake, or to deceive customers as to the real origin of its services. Any customer might believe that ATABEYs eco tour services are in fact the services provided by BATEY, or might believe that ATABEY is somehow associated with or authorized by BATEY to do business, particularly if taken into consideration the fact that ATABEY has broken into Mr. Prezs land property and used its facilities to conduct its own eco tour services. 57. The adoption and use by Ms. Corporan and ATABEY of the ATABAEY ECO ADVENTURE mark to identify their eco tour services, together with the use of photos or images of Mr. Prez land property to market them, is intended to capitalize on the fame, visibility, commercial impression and consumer recognition
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of the BATEY ZIPLINE ADVENTURE mark, in order to convey the notion that ATABEY is a service that is made, sponsored, affiliated or somehow associated to the services provided by BATEY. 58. Considering the substantial goodwill developed by the BATEY ZIPLINE ADVENTURE mark, consumers and prospective purchasers are likely to believe that ATABEY ECO ADVENTURE is either sponsored or approved by, or affiliated to, or is made by, the same source that provides product and services under the BATEY ZIPLINE ADVENTURE mark. 59. The adoption and use in commerce by ATABEY of distinctive elements of the BATEYs trademark and trade dress is without permission, leave or authority from Plaintiffs. 60. The actions of Ms. Corporan and ATABEY are and have been anticompetitive, deliberate, and intended to rip off from the goodwill and commercial reputation associated to the BATEY ZIPLINE ADVENTURE mark, and as such constitute trademark infringement, false designations of origin and representations of facts, pursuant to Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a). 61. By such wrongful acts Ms. Corporan and ATABEY have, and unless restrained by the Court will continue to cause serious irreparable injury and damage to Plaintiffs, and to the goodwill associated with the BATEYs trademarks, including but not excluding the diversion of customers, the loss of sales and profits. SECOND CAUSE OF ACTION Trade Dress Infringement Section 43(1)(a) of the Lanham Act, 15 U.S.C.A. 1114(1)(a)
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62.
63.
The trade dress of BATEY comprises an overall arrangement of elements that include a suspended bridge, caves, hiking paths, a sustainable or eco friendly farming system, forest and hills, and a network of platforms or canopies interconnected by zip lines. All of these assets are either part of or were developed in Mr. Prez land property
64.
For the purpose and with the intention of trading on and profiting from the reputation and good will that BATEY owns from marketing its services under its BATEY ZIPLINE ADVENTURE mark and trade dress, ATABEY has used Plaintiffs property, including images of the suspended bridge, hiking trails and caves, to offer, advertise and market their eco tour services.
65.
The unauthorized use of BATEYs trade dress by ATABEY causes confusion and misleads the public as to the real origin of ATABEYs eco tour services, and enables ATABEY to palm off its eco tour services in place of BATEYs, whenever the latter is called for by a customer or prospective purchaser. For instance, the suspended bridge is associated by consumers at large with BATEYs trade dress or commercial image, making ATABEYs use of such property, either by crossing it while offering their eco tour services or by advertising it as a highlight in ATABEYs Web site, indicative of trade dress infringement.
66.
In fact ATABEYs Web site has the same look and feel or overall commercial impression as BATEYs Web site. It includes photos of Plaintiffs property and
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replicates the color scheme (a combination of dark colors with yellow lettering) that is used in the BATEYs Web site. These are images of ATABEY and BATEYs home page: Exhibits 3 and 5: ATABEY and BATEYs home page, side by side:
67.
What is more, ATABEY has been offering their eco tour services in Mr. Prez land property to the same class of prospective purchasers that pay for BATEYs services. Both of them, BATEY and ATABEY, have used the Internet as the channel to market their respective eco tour services.
68.
The adoption by ATABEY of an overall arrangement of graphic elements on its Web site that is similar to the arrangement employed by BATEY on its Web site, together with the use of the ATABEY ECO ADVENTURE mark, which is similar to the BATEY ZIPLINE ADVENTURE mark, and the unauthorized use of property and images of Plaintiffs property for commercial purposes, is intended to capitalize on the fame, the commercial visibility and the public recognition achieved by BATEY as one of Puerto Ricos leading eco tour services, in order to convey the notion that ATABEY eco tour services are offered by, or sponsored by, affiliated or in any form associated to the services provided by BATEY.
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69.
Ms. Corporan and ATABEY have engaged in these illicit acts despite been notified in several occasions about their illegal entrance and use of Plaintiffs property, and of their illegal use of BATEYs trade dress.
70.
Ms. Corporan and ATABEY had full-knowledge of Plaintiffs prior rights regarding the use of the BATEY ZIPLINE ADVENTURE mark and BATEYs trade dress. Therefore they acted unlawfully and maliciously with the willful and deliberate intent to cause confusion among customers and prospective purchasers as to the origin of the services provided by ATABEY.
71.
Plaintiffs have never in any way authorized, licensed, permitted or consent to the use by either Ms. Corporan, or ATABEY, of its distinctive and valuable trade dress or any colorable or distinctive imitation thereof.
72.
The adoption, use and advertising by ATABEY of a trade dress that is confusingly similar to the BATEYs trade dress is likely to cause confusion, deception, or mistake, as members of the trade and purchasing public are likely to believe that defendant is somehow connected or affiliated to BATEY, or that the services offered and sold by ATABEY are produced by, authorized, or are in some way approved or sponsored by BATEY.
73.
The adoption and use in commerce by ATABEY of the ATABEY ECO ADVENTURE mark and its unauthorized use of the BATEYs trade dress results in, and will continue to produce, irreparable harm to Plaintiffs business, for which there is no adequate remedy in law. Unless permanently enjoined, Ms. Corporan and ATABEY will continue to offer eco tour services under the ATABEY ECO ADVENTURE mark, while using BATEYs trade dress and/or property, thereby
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resulting in substantial and irreparable harm to Plaintiffs, and to the goodwill associated with the BATEYs trade dress and/or commercial image, or else, to the reputation of BATEY in the Puerto Rico eco tourism industry. 74. Ms. Corporan and ATABEYs use, without leave or license, of the BATEYs trade dress and/or commercial image, or of images that show its private property, constitutes trade dress infringement pursuant to Section 43(1)(a) of the Lanham Act, 15 U.S.C.A. 1114(1)(a). 75. The aforesaid acts of ATABEY further constitute the use in commerce of a false designation of origin, or a false representation of fact which is likely to cause confusion, or to cause mistake, or to deceive as to the origin, sponsorship or approval of ATABEYs services by BATEY. THIRD CAUSE OF ACTION False Advertising Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)(2)
76.
77.
Section 43(a) of the Federal Trademark Act, as amended, provides a cause of action against whoever in or through commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin of his or herservices, or commercial activities." 15 USC (a)(2) (emphasis added). Plaintiffs affirm that Ms. Corporan and ATABEY have used, and still use, photographs that depict Plaintiffs property for advertising purposes, for the promotion of its services in commerce, and therefore, Ms. Corporan and
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ATABEY misrepresent the nature, characteristics, qualities or geographic origin of its services. The use of photos of Mr. Prez land property in ATABEYs web site, and in the Facebook and Trip Advisor web page, is deceptive, since clients may believe that the land property and facilities depicted, as they appear advertised by ATABEY, belong to Ms. Corporan and ATABEY, or else form part of ATABEYs business or commercial image. Clients might even think that Ms. Corporan and ATABEY are entities that are associated with BATEY or authorized to do their business in Mr. Prez land property. 78. Ms. Corporan and ATABEYs false advertising has and is likely to have more negative impacts on Plaintiffs services such as a loss of revenues and damages to its goodwill and/or business reputation. 79. Moreover, Ms. Corporan and ATABEYs use of anothers commercial image is a false designation as to the origin of its services, a false representation of facts or false description in regards to the nature of ATABEYs services, and as such it misrepresents, misleads and deceives the public, consumers or any prospective purchaser in relation to ATABEYs services. Ms. Corporan and ATABEYs false advertising has resulted in, and will continue to produce, irreparable harm to the public, to consumers or any prospective purchaser. Unless permanently enjoined, Ms. Corporan and ATABEY will continue to mislead the public, consumers and prospective purchasers in respect to its eco tour services, thereby resulting in substantial and irreparable harm to Plaintiffs, as well as to the public and the Puerto Rico eco tourism industry. FOURTH CAUSE OF ACTION Product/Service Disparagement
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Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a)(2) 80. Plaintiffs repeat and restate each and every allegation of fact set forth in paragraphs 1 through 79 of this Complaint as though fully set forth herein. 81. Section 43(a) of the Federal Trademark Act, as amended, provides a cause of action against whomever in or through commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin ofanother person's goods, services, or commercial activities." 15 USC (a)(2) (emphasis added). On November the 2nd, 2011, Ms. Corporan published a letter in the Facebook page of the UtuadoHoy.com, in her personal Facebook Page and ATABEYs Facebook Fan Page. In said publication Ms. Corporan made false and misleading representations of facts regarding Mr. Perez and BATEYs business. In doing so Ms. Corporan acted with malice and obvious disregards as to the truth. 82. With her publication Ms. Corporan procured to include a photo of Mr. Prez, his phone number and BATEYs Web site addresses. What is more, Ms. Corporan also included her phone number and ATABEYs Web site address for further details. Said publication in fact was publicly accessed, viewed and read by consumers, prospective purchasers, competitors and members of the Puerto Rico eco tour industry. 83. Ms. Corporans publication and ATABEYs illicit acts are likely to have more negative impacts on BATEYs services such as a loss of revenues and irreparable harm to its good will or business reputation.
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84.
Ms. Corporan and ATABEYs illicit acts have resulted in, and will continue to produce irreparable harm to BATEYs services. Unless permanently enjoined, Ms. Corporan and ATABEY not only will continue to disparage BATEYs services, but also to mislead the public, consumers and prospective purchasers regarding BATEYs business, thereby resulting in substantial and irreparable harm to Plaintiffs, as well as to the public and the Puerto Rico eco tourism industry. FIFTH CAUSE OF ACTION Auxiliary or Pendent Claim Libel and Slander Article 1802 Puerto Rico Civil Code, 31 L.P.R.A. 5141
85.
86.
On November the 2nd, 2011, Ms. Corporan published a letter in the Facebook page of the Utuado Daily.com, in her personal Facebook Page and ATABEYs Facebook Fan Page, in which Ms. Corporan made a large number of false and defamatory statements regarding BATEYs services and the person of Mr. Prez. Ms. Corporan also included a photograph of Mr. Prez as part of the Facebook publication.
87.
Through her malicious and false representations Ms. Corporan not only managed to damage BATEYs commercial image, but also Mr. Perez personal reputation. Ms. Corporans statements included mendacity in regards to Mr. Perez name, character and personal image, as his photos were also uploaded and incorporated in Facebook as part of the defamatory statements made by Ms. Corporan.
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88.
Ms. Corporan and ATABEYs illicit acts have resulted in, and will continue to produce irreparable harm to the reputation of Mr. Prez. Mr. Prez is a private person and his business is a family business. Ms. Corporan and ATABEYs
libelous and slanderous acts not only have inflicted considerable damage to Mr. Prrez name, image and/or character, but also brought about tremendous emotional distress to himself and to his family. 89. Thus, Mr. Prez and his family seek reparation for the damages that have been inflicted by Ms. Corpran and ATABEYs illicit acts, pursuant to Article 1802 of the Puerto Rico Civil Code, 31 LPRA 5141. SIXTH CAUSE OF ACTION Auxiliary or Pendent Claim Trademark Infringement Article 26 and 27 of the Puerto Rico Trademark Law; Law Number 169, as amended; approved on December 16, 2009
90.
91.
By the month of January, 2007, Plaintiffs began to use THE BATEY ZIPLINE ADVENTURE mark in interstate commerce as a source identifier for eco tour services.
92.
The eco tour services of BATEY have been marketed in relation to Mr. Prez land property and have been offered within said property.
93.
By late February, 2011, Ms. Corporan and ATABEY began to enter and offer eco tour services in Mr. Prez land property without authorization.
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94.
In spite of Plaintiffs rights and prior use of the BATEY ZIPLINE ADVENTURE mark, Ms. Corporan and ATABEY also adopted and began to use a similar designation, the ATABEY ECO ADVENTURE mark, to identify services that are identical to the services provided by BATEY.
95.
The confusion created by the similarity of the BATEY ZIPLINE ADVENTURE and the ATABEY ECO ADVENTURE marks increases because ATABEY offers eco tour services in Mr. Perez land property. To be precise, Ms. Corporan and
ATABEY have been offering eco tour services in Mr. Prez land property, with no authorization, to the same class of prospective purchasers that pay for BATEYs services. 96. Furthermore, Ms. Corporan and ATABEY have used photos of Plaintiffs property, or its commercial image, for instance, of the suspended bridge and caves, to market their own eco tour services. 97. The adoption and use by ATABEY of the ATABEY ECO ADVENTURE mark on and in connection with eco tour services is likely to cause confusion or mistake, or to deceive customers as to the real origin of its services. Any customer might believe that ATABEYs eco tour services are in fact the services provided by BATEY, or might believe that ATABEY is somehow associated with or authorized by BATEY to do business, particularly if taken into consideration the fact that ATABEY has broken into Mr. Perezs land property and used its facilities to conduct its own eco tour services. 98. The adoption and use by Ms. Corporan and ATABEY of the ATABAEY ECO ADVENTURE mark to identify their eco tour services, together with the use of
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photos or images of Mr. Prez land property to market them, is intended to capitalize on the fame, visibility, commercial impression and consumer recognition of the BATEY ZIPLINE ADVENTURE mark, in order to convey the notion that ATABEY is a service that is made, sponsored, affiliated or somehow associated to the services provided by BATEY. 99. Considering the substantial goodwill developed by the BATEY ZIPLINE ADVENTURE mark, consumers and prospective purchasers are likely to believe that ATABEY ECO ADVENTURE is either sponsored or approved by, or affiliated to, or is made by, the same source that provides product and services under the BATEY ZIPLINE ADVENTURE mark. 100. The adoption and use in commerce by ATABEY of distinctive elements of the BATEYs trademark and trade dress is without permission, leave or authority from Plaintiffs. 101. The actions of Ms. Corporan and ATABEY are and have been anticompetitive, deliberate, and intended to rip off from the goodwill and commercial reputation associated to the BATEY ZIPLINE ADVENTURE mark, and as such constitute trademark infringement, false designations of origin and/or representations of facts, pursuant to Articles 26 and 27 of the Puerto Rico Trademark Law. 102. By such wrongful acts Ms. Corporan and ATABEY have, and unless restrained by the Court will continue to cause serious irreparable injury and damage to Plaintiffs, and to the goodwill associated with the BATEYs trademarks, including, but not excluding, the diversion of customers, the loss of sales and profits.
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103.
By such wrongful acts Ms. Corporan and ATABEY have, and unless restrained by the Court will continue to cause serious irreparable injury and damage to Plaintiffs and to the goodwill associated with BATEYs trademarks, including but not limited to the diversion of customers, the loss of sales and profits.
104. Ms. Corporan and ATABEYs use without leave, or license, of BATEYs trademark, trade dress or images of its private property constitutes trademark infringement, pursuant to Articles 26 and 27 of The Puerto Rico Trademark Law. SEVENTH CAUSE OF ACTION Auxiliary or Pendent Claim Trade Dress Infringement Articles 26 and 27 of the Puerto Rico Trademark Law; Law Number 169, as amended; approved on December 16, 2009
105.
106.
The trade dress of BATEY comprises an overall arrangement of elements that include a suspended bridge, caves, hiking paths, a sustainable or eco friendly farming system, forest and hills, and a network of platforms or canopies interconnected by zip lines. All of these assets are either part of or were developed in Mr. Prez land property
107.
For the purpose and with the intention of trading on and profiting from the reputation and good will that BATEY owns from marketing its services under its BATEY ZIPLINE ADVENTURE mark and trade dress, ATABEY has used Plaintiffs property, including images of the suspended bridge, hiking trails and caves, to offer, advertise and market their eco tour services.
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108.
The unauthorized use of BATEYs trade dress by ATABEY causes confusion and misleads the public as to the real origin of ATABEYs eco tour services, and enables ATABEY to palm off its eco tour services in place of BATEYs, whenever the latter is called for by a customer or prospective purchaser. For instance, the suspended bridge is associated by consumers at large with BATEYs trade dress or commercial image, making ATABEYs use of such property, either by crossing it while offering their eco tour services or by advertising it as a highlight in ATABEYs Web site, indicative of trade dress infringement.
109.
In fact ATABEYs Web site has the same look and feel or overall commercial impression as BATEYs Web site. It includes photos of Plaintiffs property and replicates the color scheme (a combination of dark colors with yellow lettering) that is used in the BATEYs Web site. These are images of ATABEY and BATEYs home page: Exhibits 3 and 5: ATABEY and BATEYs home page, side by side:
110.
What is more, ATABEY has been offering their eco tour services in Mr. Prez land property to the same class of prospective purchasers that pay for BATEYs
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services. Both of them, BATEY and ATABEY, have used the Internet as the channel to market their respective eco tour services. 111. The adoption by ATABEY of an overall arrangement of graphic elements on its Web site that is similar to the arrangement employed by BATEY on its Web site, together with the use of the ATABEY ECO ADVENTURE mark, which is similar to the BATEY ZIPLINE ADVENTURE mark, and the unauthorized use of property and images of Plaintiffs property for commercial purposes, is intended to capitalize on the fame, the commercial visibility and the public recognition achieved by BATEY as one of Puerto Ricos leading eco tour services, in order to convey the notion that ATABEY eco tour services are offered by, or sponsored by, affiliated or in any form associated to the services provided by BATEY. 112. Ms. Corporan and ATABEY have engaged in these illicit acts despite been notified in several occasions about their illegal entrance and use of Plaintiffs property, and of their illegal use of BATEYs trade dress. 113. Ms. Corporan and ATABEY had full-knowledge of Plaintiffs prior rights regarding the use of the BATEY ZIPLINE ADVENTURE mark and BATEYs trade dress. Therefore they acted unlawfully and maliciously with the willful and deliberate intent to cause confusion among customers and prospective purchasers as to the origin of the services provided by ATABEY. 114. Plaintiffs have never in any way authorized, licensed, permitted or consent to the use by either Ms. Corporan, or ATABEY, of its distinctive and valuable trade dress or any colorable or distinctive imitation thereof.
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115.
The adoption, use and advertising by ATABEY of a trade dress that is confusingly similar to the BATEYs trade dress is likely to cause confusion, deception, or mistake, as members of the trade and purchasing public are likely to believe that defendant is somehow connected or affiliated to BATEY, or that the services offered and sold by ATABEY are produced by, authorized, or are in some way approved or sponsored by BATEY.
116.
The adoption and use by ATABEY of the ATABEY ECO ADVENTURE mark and its unauthorized use of the BATEYs trade dress results in, and will continue to produce, irreparable harm to Plaintiffs business, for which there is no adequate remedy in law. Unless permanently enjoined, Ms. Corporan and ATABEY will continue to offer eco tour services under the ATABEY ECO ADVENTURE mark, while using BATEYs trade dress and/or property, thereby resulting in substantial and irreparable harm to Plaintiffs, and to the goodwill associated with the BATEYs trade dress and/or commercial image, or else, to the reputation of BATEY in the Puerto Rico eco tourism industry.
117.
Ms. Corporan and ATABEYs use, without leave or license, of the BATEYs trade dress and/or commercial image, or of images that show its private property, constitutes trade dress infringement pursuant to Articles 26 and 27 of the Puerto Rico Trademark Law.
118.
The aforesaid acts of ATABEY further constitute the use in commerce of a false designation of origin, or a false representation of fact which is likely to cause confusion, or to cause mistake, or to deceive as to the origin, sponsorship or approval of ATABEYs services by BATEY.
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EIGHT CAUSE OF ACTION Auxiliary or Pendent Claim False Advertising Articles 26 and 27 of the Puerto Rico Trademark Law; Law Number 169, as amended; approved on December 16, 2009
119.
120.
Article 27 of the Puerto Rico Trademark Law, as amended, provides a cause of action against whoever in or through commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin of his or herservices, or commercial activities." ___LPRA___ (emphasis added). Plaintiffs affirm that Ms. Corporan and ATABEY have used, and still use, photographs that depict Plaintiffs property for advertising purposes, for the promotion of its services in commerce, and therefore, Ms. Corporan and ATABEY misrepresent the nature, characteristics, qualities or geographic origin of its services. The use of photos of Mr. Prez land property in ATABEYs web site, and in the Facebook and Trip Advisor web page, is deceptive, since clients may believe that the land property and facilities depicted, as they appear advertised by ATABEY, belong to Ms. Corporan and ATABEY, or else form part of ATABEYs business or commercial image. Clients might even think that Ms. Corporan and ATABEY are entities that are associated with BATEY or authorized to do their business in Mr. Prez land property.
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121.
Ms. Corporan and ATABEYs false advertising has and is likely to have more negative impacts on Plaintiffs services such as a loss of revenues and damages to its goodwill and/or business reputation.
122.
Moreover Ms. Corporan and ATABEYs use of anothers commercial image is a false designation as to the origin of its services, a false representation of facts or false description regarding the nature of ATABEYs services, and as such it misrepresents, misleads and deceives the public, consumers or any prospective purchaser regarding ATABEYs services. Ms. Corporan and ATABEYs false
advertising has resulted in, and will continue to produce, irreparable harm to the public, to consumers or any prospective purchaser. Unless permanently enjoined, Ms. Corporan and ATABEY will continue to mislead the public, consumers and prospective purchasers regarding its eco tour services, thereby resulting in substantial and irreparable harm to Plaintiffs, as well as to the public and the Puerto Rico eco tourism industry. NINTH CAUSE OF ACTION Auxiliary or Pendent Claim Product/Service Disparagement Articles 26 and 27 of the Puerto Rico Trademark, as amended; Law Number 169, as amended; approved on December 16, 2009
123.
124.
Article 27 of the Puerto Rico Trademark Law, as amended, provides a cause of action against whomever in or through commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin
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ofanother person's goods, services, or commercial activities." __ LPRA __ (emphasis added). On November the 2nd, 2011, Ms. Corporan published a letter in the Facebook page of the UtuadoHoy.com, in her personal Facebook Page and ATABEYs Facebook Fan Page. In said publication Ms. Corporan made false and misleading representations of facts regarding Mr. Perez and BATEYs business. In doing so Ms. Corporan acted with malice and obvious disregards as to the truth. 125. With the publication Ms. Corporan procured to include a photo of Mr. Prez, his phone numbers and BATEYs web site addresses. What is more Ms. Corporan also included her phone number and ATABEYs web site address for further details. Said publication in fact was publicly accessed, viewed and read by
competitors and members of the Puerto Rico eco tour industry. 126. Ms. Corporans publication and ATABEYs illicit acts are likely to have more negative impacts on BATEYs services such as a loss of revenues and irreparable harm to its good will or business reputation. 127. Ms. Corporan and ATABEYs illicit acts have resulted in, and will continue to produce irreparable harm to BATEYs services. Unless permanently enjoined, Ms. Corporan and ATABEY not only will continue to disparage BATEYs product and services, but also to mislead the public, consumers and prospective purchasers regarding BATEYs eco tour services, thereby resulting in substantial and irreparable harm to Plaintiffs, as well as to the public and the Puerto Rico eco tourism industry. TENTH CAUSE OF ACTION Auxiliary or Pendent Claim Illegal Trespass Articles 180, 205 and 206 of the Puerto Rico Penal Code,
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33 L.P.R.A. 4808, 4833 and 4834 128. Plaintiffs repeat and restate each and every allegation of fact set forth in paragraphs 1 through 127 of this Complaint as though fully set forth herein. 129. By late February, 2011, Ms. Corporan and ATABEY began to invade Mr. Prez land property and to use Plaintiffs property without authorization. 130. Ms. Corporan and ATABEY were notified about their illegal entries and the unauthorized use of Plaintiffs property. However, Ms. Corporan and ATABEY paid no attention to said notifications and against the will of continued to break into Mr. Prez land property to offer their eco tour services. 131. The acts of Ms. Corporan and ATABEY are of a criminal nature and sanctioned pursuant to Articles 108, 205 and 206 of the Puerto Rico Penal Code, 33 L.P.R.A. 4808, 4833 and 4834.
UNFAIR COMPETION AND DAMAGES
132.
133.
Pursuant to Article 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. 5141, a person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. Concurrent imprudence of the party aggrieved does not exempt from liability, but entails a reduction of the indemnity.
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134.
ATABEY is unfairly trading on and appropriating the reputation and good will of BATEY, as represented by BATEY's trademark and trade dress, and is deceiving the public.
135.
Plaintiffs are informed and believe, and on the basis of such information and belief allege, that Ms. Corporan and ATABEYs unauthorized adoption and use of the ATABEY ECO ADVENTURE mark, along with a trade dress that is a colorable imitation of BATEYs trademark and trade dress, was and is deliberate, and had and has the intention of investing ATABEY's eco tour service with more marketability, provoked by confusion of the public, which it would not otherwise have.
136.
Based upon the Lanham Act and the Puerto Rico Trademark Law, Ms. Corporan and ATABEYs acts represent unfair competition and unfair and deceptive acts or practices, as the use of the infringing trade dress by ATABEY is likely to induce persons to buy and use and to recommend and refer to ATABEYs services when instead they intend to buy and use and to recommend and refer to BATEY's eco tour services.
137.
As a result of the acts of unfair competition such as trademark and trade dress infringement, product/service disparagement, false advertising and defamation, by Ms. Corporan and ATABEY, as set out in all causes of action, Plaintiffs has suffered damage to its business, reputation and good will in a sum not less than $500,000.00
138.
Ms. Corpran and ATABEYs use of the infringing trademark and trade dress, besides its continuous unauthorized use of Plaintiffs property, defamatory acts
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and service disparagement, is damaging and will continue to damage Plaintiffs substantially and irrevocably unless restrained by this court. 139. Plaintiffs have no adequate remedy at law.
V. REQUEST FOR RELIEF
WHEREFORE, Plaintiff requests the court grant relief as follows: 1. Under 15 U.S.C. 1116 and 1117 and the laws of the Commonwealth of Puerto Rico, that Defendants, their agents, servants, employees, attorneys, assigns, and all others privy to or acting in concert with it be permanently enjoined from: a) Using the ATABEY ECO ADVENTURE designation and any other mark, logo or trade dress that is confusingly similar to the BATEY ZIPLINE ADVENTURE mark and trade dress. b) Using any photo or image of Plaintiffs land property, facilities and/or commercial image for their or any commercial endeavor, interest or activity. c) Using in any manner any photo or image of Plaintiffs land property, facilities and/or commercial image, that misrepresents the nature, characteristics, qualities, or the geographic origin of ATABEYs services or commercial activities. d) Using in any manner any service mark, trademark, trade name, trade dress, words, numbers, abbreviations, designs, colors, arrangements, collocations, or any combinations thereof, which would imitate, resemble or suggest Plaintiffs mark and trade dress;
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e) otherwise infringing Plaintiffs mark, trade dress or logo; f) Unfairly competing with Plaintiffs by publishing disparaging remarks regarding BATEYs services in any manner, by any means, being physical or electronic. g) Unfairly competing with Plaintiffs by publishing defamatory statements regarding the private person of Mr. Prez, his family and business, in any manner, by any means, being physical or electronic. h) Unfairly competing with Plaintiffs by invading Mr. Prez land property and using Plaintiffs property for ATABEYs commercial endeavor or for conducting ATABEYs eco tour services. i) Using, registering or reserving any mark, label, symbol, trade dress or logo that is confusingly similar to the BATEYs trademark and/or trade dress, marks and logo. 2. Under 15 U.S.C. 1118 and the laws of the Commonwealth of Puerto Rico, be directed to deliver up for destruction all products, advertisements, labels, signs, prints, packages, wrappers, receptacles and all other materials in their possession or under their control that contains the mark ATABEY ECO ADVENTURE or any other name or mark or trade dress that resembles the BATEYs mark and trade dress, or any other reproduction, counterfeit, copy or colorable imitation of BATEYs trade dress, marks and logo. 3. Under 15 U.S.C. 1117 and the law of the Commonwealth of Puerto Rico, account and pay to Plaintiffs damages in an amount sufficient to fairly compensate Plaintiffs for the injury it has sustained in the sum not less than $500,000 and all
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profits that are attributable to the infringing sale of goods or services with the trademark, trade dress, name and mark described in this complaint plus the amount that accrues from the filing of the complaint, and further that the amount of the monetary award granted herein be trebled in view of the willful and deliberate nature of defendants unlawful conduct. 4. That pursuant to Article 26 of the Puerto Rico Trademark Law three times the damages would be awarded for ATABEYs bad faith or intentional trademark infringement. 5. Under 15 U.S.C. 1117 and Article 26 of the Puerto Rico Trademark Law, defendant be ordered to pay the costs of this action and Plaintiffs attorney fees. 6. As a result of the acts of unfair competition such as trademark and trade dress infringement, product/service disparagement, false advertising and defamation, by Ms. Corporan and ATABEY, as set out in all causes of action, Plaintiffs has suffered damage to its business, reputation and good will in a sum not less than $500,000.00. That Plaintiffs be granted such other, further, different or additional relief as this Court deems equitable and proper.
Respectfully submitted, February 6, 2012 s/Rafael Aponte Garca Rafael Aponte Garca USDC No. 216802 E-mail: aponteip@gmail.com P.O. Box 194221, San Juan, Puerto Rico 00919-4221 Telephone: 787-429-9983
Attorneys for Plaintiffs
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Case 3:12-cv-01073 Document 1

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Jorge Perez Veve, Batey Zipline Adventure, Inc. PLAINTIFFS v.

Julissa Corporan, Atabey Eco Tours Corp. DEFENDANTS

(TRIAL BY JURY DEMANDED)

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Exhibit 2: Trademark BATEY ZIPLINE ADVENTURE

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TAINO DIVERS, RINCON VACATIONS, ACAMPA NATURE ADVENTURES, 8

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Prez land property. authorization. 41.

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