JS 44C/SDNY REV.

4/2012

flJD&fiUUiflnU)
initiating the civildocket sheet.

CIVIL COVER'

)r\^>leTient filing ani The JS-44 civil cover sheet and the information contained hereiiflWUherjUace nor'*i0pl9Fientthe

pleadings or other papers as required by law, except as provided by local rules ofcourt. This form, appi Dse 51 or Judicial Conference oftheUnited States in September 1974, isrequired for useoftheClerk ofCourt for the purpose

mc8 9 ^t
^ ^^

9iAR?8;XH4
DEFENDANTS

PLAINTIFFS

CONOPCO, INC. d/b/a UNILEVER

WELLS ENTERPRISES, INC.

ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER
Gregory P. Gulia, Vanessa C. Hew, Mitchell A. Frank
Duane Morris LLP

ATTORNEYS (IF KNOWN)

1540 Broadway, New York, NY 10036-4086 (212)692-1000 CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE ABRIEF STATEMENT OF CAUSE)
(DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY)

Federal trade dress infringement, federal unfair competition & false designation of origin, common law dilution &injury to business reputation, deceptive tradejjractices qt al.
Has this ora similar casebeen previously filed in SDNY atany time? No |x] Yes • Judge Previously Assigned
~'0

If yes, was this case Vol. D Invol. D Dismissed. No •

Yes •

If yes, give date.

& Case No.

IS THIS AN INTERNATIONAL ARBITRATION CASE?
(PLACE AN [x] INONEBOXONLY)
TORTS

No [^

YeS LJ
NATURE OF SUIT
ACTIONS UNDER STATUTES

PERSONAL INJURY

PERSONAL INJURY

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

[ [ I [

] 110 ] 120 P30 ]1«0

INSURANCE MARINE MILLER ACT NEGOTIABLE

[ ] 310 AIRPLANE

[]362 PERSONAL INJURY-

1)315 AIRPLANE PRODUCT
LIABILITY

MED MALPRACTICE

1 j 620
[ ] 625

[]610

AGRICULTURE

[ ] 422 APPEAL
28 USC 158

[ ]400 STATE
REAPPORTIONMENT

OTHER FOOD &
DRUG

[ ] 365 PERSONAL INJURY
PRODUCT LIABILITY

[ ] 423 WITHDRAWAL
28 USC 157

[ ] 320 ASSAULT, LIBEL &
SLANDER

INSTRUMENT

[ J 368

ASBESTOS PERSONAL
INJURY PRODUCT
LIABILITY

DRUG RELATED SEIZURE OF
PROPERTY 21 USC 881

[ ]150

RECOVERY OF

[ ] 330 FEDERAL
EMPLOYERS'
LIABILITY

[ ] 151 I I 152

OVERPAYMENT & ENFORCEMENT OF JUDGMENT MEDICARE ACT
RECOVERY OF DEFAULTED

PROPERTY RIGHTS

[ ]410 []430 [ ]450 [ )460 [ ]470

ANTITRUST

BANKS & BANKING COMMERCE DEPORTATION RACKETEER INFLU

[ ] 340 MARINE

PERSONAL PROPERTY

[ ] 345 MARINE PRODUCT
LIABILITY

STUDENT LOANS

[ ] 350 MOTOR VEHICLE [ ] 355 MOTOR VEHICLE
PRODUCT LIABILITY

[ ] 370 OTHER FRAUD [ ] 371 TRUTH IN LENDING [ ) 380 OTHER PERSONAL
PROPERTY DAMAGE

[ [ [ [

]630 ]640 J 650 )660

LIQUOR LAWS
RR & TRUCK

AIRLINE REGS OCCUPATIONAL SAFETY/HEALTH
OTHER

[ ] 820 COPYRIGHTS [ ] 830 PATENT W 840 TRADEMARK
SOCIAL SECURITY

ENCED & CORRUPT ORGANIZATION ACT

(RICO) [ ]480 11490 I 1810 [ I 850
CONSUMER CREDIT CABLE/SATELLITE TV SELECTIVE SERVICE SECURITIES/ COMMODITIES/ EXCHANGE [ I 875 CUSTOMER CHALLENGE
12USC3410

[ ]690

(EXCL VETERANS)
[ ] 153
RECOVERY OF OVERPAYMENT OF VETERAN'S
BENEFITS

[ ] 360 OTHER PERSONAL
INJURY

[ ] 385 PROPERTY DAMAGE
PRODUCT LIABILITY LABOR

[ ]710
I I 720
PRISONER PETITIONS

FAIR LABOR

[ I 160

STOCKHOLDERS
SUITS OTHER CONTRACT CONTRACT PRODUCT LIABILITY FRANCHISE

STANDARDS ACT
LABOR/MGMT RELATIONS LABOR/MGMT REPORTING &

[ [ [ [ [

] 861 ) 862 ] 863 ] 864 ] 865

HIA(1395ff) BLACK LUNG(923) DIWC/DIWW (405(g)) SSID TITLE XVI RSI (405(g))

[ J 890 OTHER STATUTORY
ACTIONS

[ ]190 [ ] 195

I I 730

[ ]510
ACTIONS UNDER STATUTES
CIVIL RIGHTS

MOTIONS TO
VACATE SENTENCE

FEDERAL TAX SUITS

[1891 AGRICULTURAL ACTS [ I 892 ECONOMIC
STABILIZATION ACT

DISCLOSURE ACT

20 USC 2255

[ ] 740

RAILWAY LABOR ACT
OTHER LABOR
LITIGATION

( ]870 TAXES (U.S. Plaintiffor
Defendant) [ ] 871 IRS-THIRD PARTY
26 USC 7609

[ ] 893 ENVIRONMENTAL
MATTERS

[ ]196

[ ] 530 HABEAS CORPUS
[ ] 535 DEATH PENALTY

[ ] 790

[ I 894 ENERGY

REAL PROPERTY

[ ]441 VOTING [ ] 442 EMPLOYMENT [ ) 443 HOUSING/
ACCOMMODATIONS

[ ] 540 MANDAMUS & OTHER [ l 791

EMPL RET INC SECURITY ACT

[ J 895 [ I 900

IMMIGRATION

I 1210 ]220
1230

LAND

CONDEMNATION
FORECLOSURE

[ ] 444 WELFARE [ ] 445 AMERICANS WITH
DISABILITIES -

PRISONER CIVIL RIGHTS

[ ]462

RENT LEASE &
EJECTMENT

EMPLOYMENT

[ ] 550 CIVIL RIGHTS [ ] 555 PRISON CONDITION

[)463 [ ]465

NATURALIZATION APPLICATION HABEAS CORPUSALIEN DETAINEE

ALLOCATION ACT FREEDOM OF INFORMATION ACT APPEAL OF FEE DETERMINATION UNDER EQUAL ACCESS TO JUSTICE

[ J 950 CONSTITUTIONALITY
OF STATE STATUTES

[ ] 446 AMERICANS WITH
DISABILITIES -OTHER

[ ]240 []245 [ ]290

TORTS TO LAND
TORT PRODUCT LIABILITY
ALL OTHER

OTHER IMMIGRATION
ACTIONS

[ ] 440 OTHER CIVIL RIGHTS
(Non-Prisoner)

REAL PROPERTY

Check if demanded in complaint:

CHECK IF THIS IS A CLASS ACTION
UNDERF.R.C.P. 23

DO YOU CLAIM THIS CASE IS RELATED TO A CIVIL CASE NOW PENDING IN S.D.N.Y.?
IF SO, STATE:

DEMAND $

OTHER

JUDGE

DOCKET NUMBER,

Check YES only if demanded in complaint

JURY DEMAND: S YES • NO

NOTE: Please submit at the time of filing an explanation of whycases are deemed related.

(PLACEAN x IN ONE BOX ONLY)

ORIGIN

S 1 original

Proceeding

2 Removed from
state Court

3 Remanded I—I 4 Reinstated or
from Reopened
Appellate
Court

Lj 5 Transferred from [~J 6 Multidistrict
(Specify District) Litigation

l~1 7 Appeal toDistrict
Judge from Magistrate Judge Judgment

| | 3. all parties represented I I b. Atleastone
party is pro se.

(PLACE AN x IN ONEBOXONLY)

BASIS OF JURISDICTION

IF DIVERSITY, INDICATE
CITIZENSHIP BELOW.

• 1 U.S. PLAINTIFF

• 2 U.S. DEFENDANT [X] 3 FEDERAL QUESTION
(U.S. NOT A PARTY)

D4 DIVERSITY

(28 USC 1322, 1441)

CITIZENSHIP OF PRINCIPAL PARTIES (FOR DIVERSITY CASES ONLY)
(Place an [X] in one box for Plaintiffand one box for Defendant)
PTF DEF 1 PTF DEF

PTF

DEF 5

CITIZEN OF THIS STATE

1

CITIZEN OR SUBJECT OF A FOREIGN COUNTRY

|3

3

INCORPORATED and PRINCIPAL PLACE OF BUSINESS IN ANOTHER STATE
FOREIGN NATION

5

CITIZEN OF ANOTHER STATE

INCORPORATED or PRINCIPAL PLACE OF BUSINESS IN THIS STATE

PLAINTIFF(S) ADDRESS(ES) AND COUNTY(IES)
Conopco, Inc. d/b/a Unilever 700 Sylvan Avenue

Englewood Cliffs, New Jersey 07632

DEFENDANT(S) ADDRESS(ES) AND COUNTY(IES)
Wells Enterprises, Inc. One Blue Bunny Drive
Le Mars, Iowa 51031

DEFENDANT(S) ADDRESS UNKNOWN REPRESENTATION IS HEREBY MADE THAT, ATTHIS TIME, I HAVE BEEN UNABLE, WITH REASONABLE DILIGENCE, TOASCERTAIN THE
RESIDENCE ADDRESSES OF THE FOLLOWING DEFENDANTS:

Checkone:

THIS ACTION SHOULD BE ASSIGNED TO:
SIGNATURE OF ATTORNEY
/c

WHITE PLAINS

[X] MANHATTAN

(DO NOTcheck either box ifthis a PRISONER PETITION/PRISONER CIVIL RIGHTS COMPLAINT.)

DATE 3/28/2014
RECEIPT*

ADMITTED TO PRACTICE IN THIS DISTRICT

X YES (DATE ADMITTED Mo. 11

Y, 1993-

/L«

Atiorney Bar Code # 4093175

Magistrate Judge is to be designated by the Clerk of the Court.

Magistrate Judge
Ruby J. Krajick, Clerk of Court by.

HlM* Tr^^^lS
Deputy Clerk, DATED.

is so Designated.

UNITED STATES DISTRICT COURT (NEW YORK SOUTHERN)

DUANE MORRIS LLP

Gregory P. Gulia
Vanessa C. Hew Mitchell A. Frank

1540 Broadway
New York, New York 10036-4086

Telephone: (212) 692-1000 Facsimile: (212) 692-1020 Attorneys for Plaintiff
CONOPCO, INC. D/B/A UNILEVER

1

2223

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

CONOPCO, INC. D/B/A U
Plainti

se No.:
.—-. j

COMPLAINT AND JURY DEMAND

WELLS ENTERPRISES, INC.,
Defendant

Plaintiff, Conopco, Inc. d/b/a Unilever ("Unilever"), by its undersigned attorneys, Duane
Morris, LLP, for its Complaint alleges as follows:

1.

This action is brought against defendant Wells Enterprises, Inc. ("Defendant") for

federal trade dress infringement, false designation of origin and unfair competition, in violation of the Lanham Act, and for substantial and related claims of unfair competition, deceptive trade
practices and injury to business reputation under the state and common laws of the State of New
York.

2.

Unilever's claims arise from Defendant's use, in connection with the production,

marketing, advertising, promotion, distribution and sale of Defendant's BOMB POPS frozen

confection products, of a trade dress that is likely to cause confusion with Unilever's famous and
distinctive trade dress used in connection with its well-known and distinctive FIRECRACKER®

products.

3.

Unilever seeks injunctive relief and monetary damages.
PARTIES

4.

Unilever is a New York corporation, with a place of business at 700 Sylvan Avenue,

Englewood Cliffs, New Jersey 07632. Unilever and its affiliated companies are leading manufacturers of food and personal care products. Among their products and widely recognizable
brands, Unilever and/or its affiliates and their licensees manufacture, market and sell frozen

confections, ice cream, and a variety of other products under the federally registered and famous
SICLE®, POPSICLE® (the "POPSICLE® Mark"), FUDGSICLE®, CREAMSICLE®,

CHOCSICLE® and YOSICLE® trademarks (collectively, the "SICLE Marks").

5.

Upon information and belief, defendant Wells Enterprises, Inc. is a corporation,

having a place of business at One Blue Bunny Drive, Le Mars, Iowa 51031.
JURISDICTION AND VENUE

6.

This Court has jurisdiction under Section 39 of the Lanham Act, 15 U.S.C. § 1121,

Sections 1332(a), 1338(a), 1338(b) and 1367(a) of the Judicial Code, 28 U.S.C. 1332(a), § 1338(a),

§ 1338(b) and § 1367(a), and under principles of supplementary jurisdiction.

7.

This Court has personal jurisdiction over the Defendant, and venue is proper in this

district, pursuant to 28 U.S.C. § 1391(b) and (c), because Defendant does business in and/or has

substantial contacts with the State of New York and/or the events giving rise to the claims alleged in this complaint have a substantial effect in New York and a substantial part of such events occurred
and/or will occur in this district.

8.

Upon information and belief, Defendant's marketing, distribution and sale of

products bearing the Infringing Product Packaging (defined below) throughout the United States,
including in New York, through distributors and retailers, some of which are located in New York,

constitute substantial contacts with the State of New York, such that Defendant may reasonably
anticipate being brought into a New York court.

9.
costs.

The amount in controversy exceeds the sum of $75,000, exclusive of interest and

FACTS COMMON TO ALL CLAIMS FOR RELIEF A. Unilever's the FIRECRACKER® Mark and Trade Dress

10.

Unilever's rights in its SICLE Marks date back more than ninety years. Over this

more than nine decades, Unilever and/or its affiliates, and their predecessors and/or their licensees (Unilever's affiliates, predecessors and their licensees are hereinafter collectively referred to as the

"Related Entities"), have successfully grown and expanded the famous and well-known federally
registered SICLE Marks to include, among others, SICLE®, POPSICLE®, POPSICLE THE ORIGINAL BRAND (and Design)®, CREAMSICLE®, FUDGSICLE®, CHOCSICLE® and

YOSICLE®, for frozen confections and other products.

11.

For decades, Unilever and/or the Related Entities have extensively marketed,

advertised, promoted and sold frozen confections under the SICLE Marks throughout the United
States. Unilever and/or the Related Entities have sold, and continue to sell, frozen confections under

the numerous SICLE Marks individually and in multi-packs through retail stores, including grocery and convenience stores, and mobile vending carts, trucks and stands across the country. Products sold under the SICLE Marks have been promoted for many years through a wide variety of national
media, including television, radio, print and a website located at the domain name
"www.popsicle.com."

12.

As a result of the longstanding, extensive, and widespread use, marketing and

promotion of the SICLE Marks and products by Unilever and/or the Related Entities, Unilever's

SICLE Marks are widely recognized by the general consuming public as a designation of source for Unilever's frozen confections and other products. Indeed, POPSICLE® brand frozen confections
are the number one kids frozen novelty brand in the United States.

13.

Unilever is the exclusive owner of numerous federal registrations for its SICLE

Marks, including, but not limited to, the following:
Mark

Registration
Number

Registration
Date

International Class
International Class 30

Goods

POPSICLE THE ORIGINAL

Reg. No.
1,840,718

June 21, 1994

"frozen

confections"

BRAND® (and Design)

0«*%*««terfQ

§fe^§Bi§
Oo6o6ooo°
POPSICLE®

Reg. No.
2,421,400

January 16,
2001

International

"frozen confections"
"frozen

Class 30 International Class 30

FUDGSICLE®

Reg. No.
434,594

November 25,
1947

confections and

powdered
concentrates for

making the
same" CREAMSICLE®

Reg. No.
1,839,541

June 14, 1994

International

"frozen

Class 30

confections"
"frozen confections"

CHOCSICLE®

Reg. No.
3,178,063

November 28,
2006

International
Class 30 International Class 30

YOSICLE®

Reg. No. 4,150,906

May 29, 2012

"ice creams,
frozen confections and

frozen yogurt"

Mark

Registration
Number

Registration
Date

International
Class
International Class 30

Goods

SICLE®

Reg. No.
4,396,616

September 3,
2013

"ice creams and
frozen confections"

Unilever's registrations for the SICLE Marks provide constructive notice of Unilever's claim of

ownership under 15 U.S.C. § 1072.
14. Unilever's federal registrations for POPSICLE THE ORIGINAL BRAND® (and

Design) (Reg. No. 1,840,718), POPSICLE® (Reg. No. 2,421,400) and CREAMSICLE® (Reg. No. 1,839,541), are incontestable pursuant to 15 U.S.C. § 1065, and thus provide conclusive evidence of Unilever's exclusive right to use the marks covered by the registrations in commerce in connection with the goods specified in the registrations.
15. Unilever markets, distributes and sells its POPSICLE® brand frozen confections in

Unilever's well-known and distinctive POPSICLE® product packaging (the "POPSICLE® Trade
Dress") which consists of: (a) a yellow background; (b) the POPSICLE® Logo (defined below); and

(c) a graphic depiction of the actual specific POPSICLE® product contained in the packaging. The

POPSICLE® Logo consist of an oval-shaped burst in which the POPSICLE® Mark appears in large,
white, rounded lettering against a red and blue background. Above the oval shaped burst containing

the POPSICLE® Mark, the words "The Original Brand" appear—this is also an element of the
POPSICLE® Logo.

16.

Unilever has been marketing, distributing and selling its POPSICLE® brand

products and different varieties thereof in the POPSICLE® Trade Dress since at least as early as
1994.
17.

One of the varieties of Unilever's POPSICLE® brand frozen confection treats is its

FIRECRACKER® brand frozen confections. Unilever has been marketing, advertising, promoting

and selling frozen confections under the FIRECRACKER® trademark ("FIRECRACKER® Mark") since at least as early as 1989. Unilever is also the exclusive owner of a United States Trademark
Registration No. 3,346,742 for the FIRECRACKER® Mark for "frozen confections." This

registration is incontestable and serves as conclusive evidence of Unilever's exclusive right to use
the FIRECRACKER® Mark and the validity thereof.
18. Unilever markets, distributes and sells its FIRECRACKER® brand of frozen

confection treats in Unilever's well-known and distinctive product packaging (the "FIRECRACKER® Trade Dress") in, among other channels, supermarkets, superstores and
drugstores.

19.

The FIRECRACKER® Trade Dress is an inherently distinctive product packaging

which is comprised of the following original and distinctive elements: (a) an illustration featuring
three FIRECRACKER® products positioned at the center of the product packaging with the center

FIRECRACKER® frozen confection prominently positioned in the foreground vertically leaning towards the right at an approximate 75 degree angle and pointing upwards and the remaining FIRECRACKER® products in the background with the closest FIRECRACKER® product partially obscured by the front FIRECRACKER® product and leaning at a 45 degree angle towards the right while pointing upwards and the furthest FIRECRACKER® product also partially obscured by the

front FIRECRACKER® product and leaning towards the left at a 105 degree angle and pointing
upwards; (b) the FIRECRACKER® Mark depicted in red lettering and outlined in both white and
red with the letter "I" depicted as a red and white firecracker dotted with a blue star; (c) streams of

yellow fire emanating from various directions; (d) small yellow stars; (e) prominent yellow

background; (f) distinctive color scheme consisting of yellow, blue, white and red, and (g) the
POPSICLE® logo. Annexed hereto as Exhibit 1 is a photograph of the FIRECRACKER® Trade
Dress.

20.

Unilever's well-known FIRECRACKER® Trade Dress is inherently distinctive and

not functional, has acquired distinctiveness and serves to readily distinguish Unilever's
FIRECRACKER® products from those of its competitors.

21.

Unilever continuously and extensively advertises and promotes the

FIRECRACKER® Mark and FIRECRACKER® Trade Dress and the products sold thereunder.

Unilever and its predecessors have spent substantial sums advertising and promoting
FIRECRACKER® brand frozen confections in the United States.

22.

Unilever operates a website at the domain name address www.popsicle.com, which

serves to advertise and promote its FIRECRACKER® brand products and provide nutritional and

dietary information and support to consumers of FIRECRACKER® frozen confection products.
23. Unilever's FIRECRACKER® products are currently available and sold to

consumers throughout this District, this State, and the United States.

24.

Over the years, the volume of sales of goods in the United States sold under the

FIRECRACKER® Mark and FIRECRACKER® Trade Dress has been enormous. Moreover,

Unilever's FIRECRACKER® frozen confection products are a leading brand of frozen confection
products in the United States with many millions of dollars in sales in the United States since 1989.

25.

The extraordinary success of Unilever's FIRECRACKER® brand products over

many years has fostered wide renown with the trade and public and the products sold under the FIRECRACKER® brand have a reputation for being of the highest quality. As a result of such
success, and the long, continuous and exclusive use of the FIRECRACKER® Mark and

FIRECRACKER® Trade Dress in connection with the marketing of Unilever's frozen confection

products, Unilever's FIRECRACKER® products have also come to be identified by the trade and
public by and with the FIRECRACKER® Mark and FIRECRACKER® Trade Dress alone.

B.

Defendant's Unlawful Activities

26.

Upon information and belief, Defendant manufactures, markets, distributes and sells

frozen confection products under the name BOMB POPS sold through numerous mass retail trade channels, such as supermarkets, drug stores, convenience stores and national chain stores including the same retailers in which Unilever sells its FIRECRACKER® frozen confection products.

27.

Upon information and belief, Defendant's BOMB POPS frozen confection products

are marketed in product packaging ("Infringing Product Packaging") which features simulations,

confusingly similar variations, or colorable imitations of the FIRECRACKER® product packaging,
and include distinctive and protectable elements of the FIRECRACKER® Trade Dress. Annexed

hereto as Exhibit 2 are photographs of Defendant's infringing BOMB POPS products which are

marketed, advertised and sold in the Infringing Product Packaging.
28. The Infringing Product Packaging mimics and imitates Plaintiffs FIRECRACKER®

Trade Dress. As evidence of Defendants' improper and infringing conduct, below is an illustrated

side-by-side comparison of the FIRECRACKER® Trade Dress and Defendant's Infringing Product Packaging. Here, a picture is worth a thousand words as the side-by-side comparison demonstrates
Defendant's blatant and outrageous copying and misappropriation of the FIRECRACKER® Trade
Dress.

POPSICLE® FIRECRACKER®
Trade Dress
Similar distinctive

Infringing BOMB POP
Trade Dress
An illustration featuring
three BOMB POP Similar
distinctive

An illustration featuring
three

color scheme

FIRECRACKERS

products positioned at

color scheme

The POPSICLE* Logo
The FIRECRACKER® Mait

consisting of yeSow, blue.
white andred

products positioned at the center of the product packagng

the center ofthe product
packaging

consisting of yellow, blue,
white andred

The s ark BOMB POP

depicted m red lettering
outlined in both white
andred

depicted in led lettering
outlined in bothwhite andred

Blue starsdesign
elements

Beam soflight emanatingfrom various
directions

Yellow background

FIRECRACKERS'

Center FIRECRACKERS)

FIRECRACKERS

product parba By obscured by the front
FIRECRACKER

fro2 en confection

product and leaning
towards the left at a

105 degree angle and positing upwards

prommentiy positioned m the foreground vertically leaning towardsthe tight at anapproxtmate75 degree ansjteand pointing upwards

product partially obscuredby the front
FIRECRACKERS)

BOMB POP product partially obscuredby
the front BOMB

Center BOMB POP fn>2en

product and leaning at a 45 degree angle towards the tight while pointing upwards

POP product and leanmg towards the left at a 105 degree angle and pointing upwards

confection prommentiy positioned m the foreground vertically leaning towards the tight at an approxim ate 75 degree angle andpomting upwards

BOMB POP product partially obscuredby the
frontBOMB POP

product and leanmg at a 45 degree angle towards the tight while pointing upwards

29.

Defendant's Infringing Product Packaging also features the words "The Original" in

smaller white lettering directly above the BOMB POP name. The words "the Original" are also

depicted in large, white, rounded lettering (outlined in blue) against a red and blue, oval-shaped
device. This graphic was clearly designed to emulate Plaintiff's POPSICLE® logo thereby
increasing the likelihood of resultant consumer confusion.

30.

To further promote consumer confusion, Defendant has also removed its Wells'

"Blue Bunny" house mark from the new packaging of its BOMB POP products, thereby increasing the likelihood that consumers will confuse its BOMB POPS products with Unilever's products.
31. Upon information and belief, Defendant has been and will continue to market,

promote, and sell its frozen confection products bearing the Infringing Product Packaging in the
same or substantially similar types, flavors, and styles of frozen confections that Unilever and its

predecessors have marketed and sold in product packaging imitating the FIRECRACKER® Trade
Dress.

32.

Defendant's unauthorized and infringing use of the Infringing Product Packaging has

caused consumer confusion in the marketplace. Upon information and belief, consumers have been

confused and misled by Defendant's unauthorized and infringing use of the Infringing Product
Packaging to believe that Defendant's BOMB POPS brand products are sponsored by, licensed from
or otherwise affiliated with, Unilever and/or its FIRECRACKER® brand products. 33. Defendant's adoption and use of the Infringing Product Packaging for its BOMB

POP frozen confection products is likely to tarnish the FIRECRACKER® Trade Dress by creating
an association between Defendant's inferior products and Unilever and its FIRECRACKER®

products. Such an association will undermine and damage the substantial goodwill and reputation associated with Plaintiff and its FIRECRACKER® Trade Dress, which Unilever has spent many
years and many millions of dollars to develop, and will dilute the distinctiveness of the
FIRECRACKER® Trade Dress.

C.

Defendant's Unlawful Conduct is Willful and Intentional

34.

Defendant's unlawful conduct is and continues to be knowing, deliberate and willful.

35.

Defendant knew, or should have known, of Unilever's well-established and prior

rights in Unilever's FIRECRACKER® Trade Dress before Defendantadopted and began using the
Infringing Product Packaging for and in connection with its competitive products.
36. Defendant's use of the Infringing Product Packaging in the United States occurred

long after Plaintiff and its predecessors began using the FIRECRACKER® Trade Dress and the FIRECRACKER® Trade Dress had acquired enormous goodwill and become well-known.

37.

Defendant adopted, commenced use of and is using and planning to use the

Infringing Product Packaging with the intent and purpose of trading on the extensive goodwill built

10

up by Unilever in its FIRECRACKER® Trade Dress and to reap the benefits of years of effort and
investment by Unilever to create public recognition of its product.

38.

Defendant has continued to use the InfringingProduct Packaging notwithstanding

Defendant's actual knowledge of Unilever's prior and exclusive rights to its FIRECRACKER®

Trade Dress, and despite Unilever providing Defendant with written notice of its objections to
Defendant's unlawful use of the Infringing Product Packaging and Unilever's demands that
Defendant cease the illegal conduct alleged in this complaint
39. Prior to the filing of this Complaint, Unilever's counsel sent a letter to Defendant,

dated February 17, 2014, advising Defendant of Plaintiff s exclusive rights in the FIRECRACKER® Trade Dress and demanding that Defendant immediately cease its infringing activities. Annexed

hereto as Exhibit 3 is a copy of the demand letter sent to Defendant on February 17, 2014.
40. Despite being put on actual notice of Unilever's exclusive rights, Defendant, to date,

has not ceased its illegal activities in willful violation and disregard of Unilever's exclusive
intellectual property rights.

41.

Despite being put on notice of Unilever's rights in its well-known

FIRECRACKER® Trade Dress, Defendant nonetheless willfully infringed, and continues to
willfully dilute and infringe, Unilever's FIRECRACKER® Trade Dress in violation of Unilever's rights.

42.

Upon information and belief, Defendant has adopted, commenced use of and is using

and planning to use the Infringing Product Packaging for its BOMB POP products with the intent and purpose of commercially exploiting and trading upon the fame, recognition, reputation and

extensive goodwill built up by Unilever in the FIRECRACKER® Trade Dress and to reap the
benefits of years of effort and investment by Unilever to create public recognition of the
FIRECRACKER® Trade Dress.

11

43.

Unless Defendant's illegal activities are enjoined by this Court, Defendant's

unlawful activities will cause and/or are likely to cause consumers to suffer harm and/or injury as a
result of use of Defendant's infringing BOMB POP products.

44.

Defendant's use of the Infringing Product Packaging has caused, and is likely to

continue to cause confusion, mistake or deception, now and in the future, as to the origin, source,
and sponsorship of Defendant's products.

45.

If Defendant is permitted to continue marketing, selling and distributing the

infringing BOMB POP products, Plaintiff is likely to lose future business from consumers who

mistakenly purchased and consumed Defendant's infringing BOMB POP products, which are of
inferior quality.

46.

As a direct and proximate result of Defendant's unlawful conduct, Unilever has

suffered, and will continue to suffer, irreparable injury to its distinctive FIRECRACKER® Trade Dress and to the goodwill and business reputation associated with its distinctive FIRECRACKER®

Trade Dress. Defendant's unlawful conduct will continue unless enjoined and restrained by this
Court. Unilever has no adequate remedy at law for Defendant's continuing violations of its rights as
set forth herein.

FIRST CLAIM FOR RELIEF FEDERAL TRADE DRESS INFRINGEMENT

(15 U.S.C. § 1125(a)(1))

47.

Unilever repeats and realleges paragraphs 1 through 46 above and incorporates them

by reference as if fully set forth herein.

48.

Defendant's use of a copy, variation, simulation or colorable imitation of Unilever's

distinctive FIRECRACKER® Trade Dress infringes Unilever's exclusive rights in the distinctive FIRECRACKER® Trade Dress, is likely to cause confusion, mistake, or deception, and constitutes trade dress infringement, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

12

49.

Defendant has used or intends to use a copy, variation, simulation or colorable

imitation of the FIRECRACKER® Trade Dress with full knowledge of the extensive prior use of such trade dress by Unilever. Defendant's unlawful conduct is and has been knowing, deliberate and
willful.

50.

Defendant's conducthas causedand is causing immediate and irreparable injury to

Unilever, and to its goodwill and reputation, and will continue both to damage Unilever and to confuse the public unless enjoined by this Court. Unilever has no adequate remedy at law.
SECOND CLAIM FOR RELIEF

FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN
(15 U.S.C. §1125(a)(D)

51.

Unileverrepeats and realleges paragraphs 1 through 50 above and incorporates them

by reference as if fully set forth herein.

52.

Defendant's use of the Infringing Product Packaging is likely to cause confusion,

mistake, or deception, and constitutes a false designation of origin, false description and false
representation of Defendant's goods, and a false representation that Defendant's goods originate
with or are sponsored, endorsed, licensed, authorized and/or affiliated or connected with Unilever in

violation of Section 43(a)(1) of the Lanham Act, 15 U.S.C. § 1125(a)(1). Defendant's unlawful
conduct is and has been knowing, deliberate and willful.

53.

Defendant's conduct has causedand is causing immediate and irreparable injury to

Unilever, and to its goodwill and reputation, and will continue both to damage Unilever and to

confuse the public unless enjoined by this Court. Unilever has no adequate remedy at law.

13

THIRD CLAIM FOR RELIEF

DILUTION AND INJURY TO BUSINESS REPUTATION

(N.Y. General Business Law §360-1)

54.

Unilever repeats and realleges paragraphs 1 through 53 above and incorporates them

by reference as if fully set forth herein.

55.

Defendant's use of a copy, variation, simulation or colorable imitation of Unilever's

distinctive FIRECRACKER® Trade Dress has caused and will continue to cause dilution of the

distinctive quality of Unilever's FIRECRACKER® Trade Dress, resulting in injury to Unilever's
business reputation.

56.

Defendant's use of a copy, variation, simulation or colorable imitation of Unilever's

distinctive FIRECRACKER® Trade Dress in connection with goods and services not controlled or

subject to control by Unilever has caused and will continue to cause dilution and/or injury to the
reputation of Unilever and Unilever's goods.

57.

By reason of the foregoing, Unilever is entitled to injunctive relief under New York

General Business Law §360-1.
FOURTH CLAIM FOR RELIEF

DECEPTIVE TRADE PRACTICES (N.Y. General Business Law §349)

58.

Unilever repeats and realleges paragraphs 1 through 57 above and incorporates them

by reference as if fully set forth herein.

59.

By reason of the acts and practices set forth above, Defendant has and is engaged in

deceptive trade practices or acts in the conduct of a business, trade or commerce, or furnishing of
goods and/or services in violation of §349 of the New York General Business Law.

60.

The public is likely to be damaged as a result of the deceptive trade practices or acts

engaged in by the Defendant.
14

61.

Unless enjoined by the Court, Defendant will continue said deceptive trade practices

or acts, thereby deceiving the public and causing immediate and irreparable damage to Unilever.
Unilever has no adequate remedy at law.

FIFTH CLAIM FOR RELIEF

COMMON LAW UNFAIR COMPETITION

62.

Unilever repeats and realleges paragraphs 1 through 61 above and incorporates them

by reference as if fully set forth herein.

63.

Upon information and belief, Defendant was aware of Unilever's prior rights, and

adopted and used the Infringing Product Packaging in willful disregard of Unilever's rights. 64. Upon information and belief, Defendant's use of the Infringing Product Packaging

has resulted in the misappropriation of and trading upon Unilever's goodwill and business reputation
at Unilever's expense and at no expense to Defendant.

65.

The effect of Defendant's misappropriation of the goodwill symbolized by the

FIRECRACKER® Trade Dress is to unjustly enrich Defendant, damage Unilever and confuse
and/or deceive the public.

66.

Defendant's conduct constitutes unfair competition with Unilever, all of which has

caused and will continue to cause irreparable injury to Unilever's goodwill and reputation unless
enjoined by this Court. Unilever has no adequate remedy at law.
WHEREFORE, Unilever demands judgment as follows:

1.

Preliminarily and permanently enjoining Defendant, its employees, agents, attorneys,

successors, and assigns, and all those in active concert and participation with Defendant from:

15

(a)

using and/or authorizing any third party to use the Infringing Product Packaging

and/or any other counterfeit, copy, simulation, confusingly similar variation, and/or colorable

imitation of Unilever's distinctive FIRECRACKER® Trade Dress, or any other trade dress belonging to Plaintiff, in any manner or form, on or in connection with any business, products and/or
services, and/or in the marketing, advertising and/or promotion of same;
(b) imitating, copying or making any unauthorized use of Unilever's distinctive

FIRECRACKER® Trade Dress, or any other trade dress belonging to Unilever, and/or any copy,
simulation, variation and/or imitation thereof;

(c)

making and/or displaying any statement and/or representation that is likely to lead the

public and/or the trade to believe that Defendant and/or the Defendant's products and/or services are

in any manner associated and/or affiliated with and/or approved, endorsed, licensed, sponsored,
authorized and/or franchised by or are otherwise connected with Unilever;

(d)

using and/or authorizing any third party to use in connection with the rendering,

offering, advertising, and/or promotion of any goods, products, and/or services any false description, false representation, and/or false designation of origin, and/or any marks, names, words, symbols,
devices, and/or trade dress which falsely associate such goods, products and/or services with
Unilever and/or tend to do so;

(e)

diluting the distinctive quality of Unilever's distinctive FIRECRACKER® Trade

Dress or any other trade dress belonging to Unilever; (f) registering and/or applying to register as a trademark, service mark, domain name,

trade name and/or other source identifier or symbol of origin, whether alone or in combination with

any other words or designs, any mark, trade dress and/or name that infringes on and/or is likely to be
confused with Unilever's distinctive FIRECRACKER® Trade Dress or any other trade dress
belonging to Unilever;

16

(g)

engaging in any other activity constituting unfair competition with Unilever, and/or

constituting an infringement of Unilever's FIRECRACKER® Trade Dress or any other trade dress
belonging to Unilever, and/or of Unilever's rights therein; and

(h)

aiding, assisting and/or abetting any other party in doing any act prohibited by sub

paragraphs (a) through (g).

2.

Requiring Defendant to identify all distributors, retail establishments and/or

wholesale establishments to whom Defendant distributed and/or sold any products packaged in the
Infringing Product Packaging.

3.

Directing that Defendant deliver for destruction any products, advertisements, and/or

other materials in its possession, and/or under its control, incorporating the Infringing Product
Packaging, and/or bearing simulations, variations and/or colorable imitations of Unilever's

FIRECRACKER® Trade Dress, used alone and/or in combination with other words and/or designs. 4. Directing that Defendant recall all products, packaging, labels, catalogs, containers,

advertisements, signs, displays and/or other related materials in its possession or under its control,

packaged in the Infringing Product Packaging, or any counterfeit, copy, simulation, confusingly
similar variation, or colorable imitation thereof.

5.

Directing such other relief as the Court may deem appropriate to prevent the trade

and/or public from deriving the erroneous impression that any product and/or service manufactured, sold, distributed, licensed and/or otherwise offered, circulated and/or promoted by Defendant is

authorized by Unilever and/or related in any way to Unilever's FIRECRACKER® products. 6. Directing that Defendant file with the Court and serve upon Unilever's counsel within

thirty (30) days after entry of such judgment, a report in writing under oath, setting forth in detail the
manner and form in which Defendant has complied therewith.

17

7.

Awarding Unilever such damages as they have sustained and/orwill sustain by reason

of Defendant's trade dress infringement, trade dress dilution, and/or unfair competition.
8. Awarding Unilever all gains, profits, property and/or advantages derived by

Defendant from such conduct; and pursuant to 15 U.S.C. § 1107, awarding Unilever an amount up to
three times the amount of the actual damages sustained as a result of Defendant's violation of the
Lanham Act.

9.

Awarding Unilever exemplary and punitive damages to deter any future willful

infringement as the Court finds appropriate.

10.

Awarding Unilever its costs and disbursements incurred in this action, including its

reasonable attorneys' fees.

11.

Awarding Unilever interest, including pre-judgment interest, on the foregoing sums.
JURY DEMAND

Unilever hereby demands a trial by jury pursuant to Rule 38, Federal Rules of Civil
Procedure.

Respectfully submitted,
DUANE MORRIS LLP,

Gregory P. Gulia
Vanessa C. Hew Mitchell A. Frank

1540 Broadway
New York, New York 10036-4086

Telephone: 212-692-1000
Fax: 212-692-1020

Attorneys for Plaintiff Conopco, Inc. d/b/a Unilever

18

^li

I

NEW YORK

LONDON
SINGAPORE
PHILADELPHIA CHICAGO

Jluane]Vforris*
FIRM and AFFIUA TE OFFICES

BALTIMORE WILMINGTON MIAMI BOCA RATON PITTSBURGH NEWARK

WASHINGTON, DC
SAN FRANCISCO
SILICON VALLEY SAN DIEGO BOSTON
HOUSTON

STEPHANIE L. JACOBS
LEGAL ASSISTANT 212.471.1837

LAS VEGAS
CHERRY HILL LAKE TAHOE

sljacobs@duanemorris.com
www. duanemorris. com

MYANMAR OMAN
A CCC REPRESENTATIVE OFFICE OF DUANEMORRIS

LOS ANGELES HANOI

HO CHI MINH CITY
ATLANTA

MEXICO CITY

ALLIANCE WITH
MIRANDA & ESTAVILLO

March 11, 2014

BY FEDEX

Natalie M. Hanlon-Leh

Faegre Baker Daniels LLP 3200 Wells Fargo Center
1700 Lincoln St.

Denver, CO 80203

Re:

Infringement of POPSICLE® FIRECRACKER® Trade Dress

Dear Ms. Hanlon-Leh:

Enclosed please find another copy of Greg Gulia's February 17, 2014 letter, with the
intended Exhibits.

We regret the oversight and appreciate your patience.
Sincerely,

Stephanie L. Jacobs Legal Assistant
Enclosure

/slj

Duane Morris llp 1540 BROADWAY NEW YORK, NY 10036-4086
PHONE: +1 212 692 1000 FAX: +1 212 692 1020

NEW YORK

LONDON SINGAPORE
PHILADELPHIA CHICAGO

puanejVforris*
FIRM and'AFFILIATE OFFICES

BALTIMORE

WILMINGTON
MIAMI BOCA RATON

PITTSBURGH
NEWARK

WASHINGTON, DC
SAN FRANCISCO SILICON VALLEY

GREGORY P, C-ULIA DIRECT DIAL: +1 212 692 1027

LAS VBOAS CHERRY HILL

SAN DIEGO BOSTON HOUSTON
LOS ANGELES HANOI

PERSONAL FAX: +1 212202 6014

LAKETAHOE MYANMAR
OMAN

E-MAIL: gpgulia@duanemotris.com
wwf. duanemonls. com

A OCCUW&SEmATlVEOFFlCZ OFDUJWEMORMS

HO CHI MINH CITY
ATLANTA

MFXimCTTY

ALUANCE WITH
MmAND A a. EST AVJLLO

February 17,2014

BY FEDEX

Mr. Mike Wells President and Chief Executive Officer

Wells Enterprises, Inc. One Blue Bunny Drive
LeMars, Iowa 51031
Re: Infringement of POPSICLE® FIRECRACKER® Trade Dress

Dear Mr. Wells:

This firm is outside trademark litigation counsel to Conopco, Inc. d/b/a Unilever ("Unilever"), the owner of the famous POPSICLE®trademark ("the POPSICLE® Mark") and related trade dress in the United States. We are writing to you in connection with the recent changes to Wells Enterprises' ("Wells") BOMB POPS packaging, which infringes the wellknown trade dress used by Unilever in conjunction with its famous POPSICLE® Mark, and especially, the trade dress for Unilever's POPSICLE® FIRECRACKER® frozen confections. Unilever and its predecessors in interest have been selling frozen confection products bearing the POPSICLE® Mark for more than ninety years. Sales of such products have been enormous, and Unilever has invested tremendous amounts of time, money and other resources in connection with the sale and advertising of its POPSICLE® brand products, As part of those efforts, Unilever has developed a distinctive trade dress which is used on the packaging in which products bearing the POPSICLE® Mark are sold ("the POPSICLE® Trade Dress"), consisting of:
(a) a yellow background:

DUANE MORRTS LIP
1540 BROADWAY NEW YORK, NY 10036-4086
PHONE: +1 212 692 1000 FAX: +1 212 692 1020

Mr. Mike Wells

Wells Enterprises, Inc. February 17,2014 Page 2

(b) an oval-shaped burst inwhich the POPSICLE® Mark appears in white lettering against a red andbluebackground ("the POPSICLE® Logo"); and (c) a graphic depiction of the actual specific POPSICLE® product contained in the
packaging.

As a result of Unilever's extensive advertising, marketing and sale of products bearing the POPSICLE® Trade Dress, that trade dress has come to be associated in the minds of consumers solely with Unilever and its POPSICLE® brand products.

Unileverhas also developed a variation of the POPSICLE® Trade Dress whichis used in
connection with its POPSICLE® FIRECRACKER® frozen confection products ("the

FIRECRACKER® Trade Dress"). The FIRECRACKER® Trade Dress, a representation ofwhich
is enclosed as Exhibit A, consists of:

(a) a yellow background; (b) the POPSICLE® Logo;

(c) the mark FIRECRACKER® in bright red letters; and

(d) a grouping of three of the FIRECRACKER® products, which are red, white and blue rocket-shaped ice pops, pointed in an essentially upward direction, with one of the pops in the foreground and the other two pops to either side and
slightly behind the one in the foreground. As a result ofUnilever's extensive advertising, marketing and sale of its POPSICLE® FIRECRACKER® products bearing the FIRECRACKER® Trade Dress, that trade dress has come to be associated in the minds of consumers solely with Unilever and its POPSICLE® FIRECRACKER® products.

Unilever has taken notice that Wells has changed the packaging for its BOMB POPS frozen confections so that it now closely simulates the FIRECRACKER® Trade Dress. The previous BOMB POPS packaging, a representation of which is enclosed as Exhibit B, consisted
of:

(a) a blue background with no yellow anywhere on the package;

(b) the words "The Original" directlybeneath the BOMB POP name in a straight line against a solid red background;

Mr. Mike Wells
Wells Enterprises, Inc. February 17, 2014 Page 3

DuaneMorris
^ L A

(c) a depiction of two of the BOMB POP products, which are also red, white and blue rocket-shaped ice pops, side-by-side,which appear to be moving across the package from left to right, and with one appearingto he slightly forward of the
other; and

(d) thewords "12 POPS" in bluelettering against a white star-shaped background.
The currentBOMB POPS trade dress ("the Infringing Trade Dress"), a representation of
which is enclosed as Exhibit C, consists of:

(a) a background which is now approximatelyhalf yellow;

(b)the words "The Original" in white lettering againsta redand blue,oval-shaped background similar to ourclient's logo and again in the lockup with "Bomb
Pop";

(c) the BOMB POP mark in bright red letters; and

(d) a grouping ofthree BOMB POP products, pointed in an essentially upward direction, with one ofthe pops inthe foreground and the other two pops to either
side of,; and slightly behind, the pop in the foreground.

Our client has also noted that your company has removed "Blue Bunny" from thepackaging. This curious change further increases the likelihood ofconfusion between the respective
products.

The drastic changes made to the BOMB POP packaging sothat it now closely simulates the FIRECRACKER® Trade Dress can lead only to the conclusion that Wells is deliberately
attempting to create confusion in the marketplace, to mislead consumers into believing that its BOMB POPS products are in fact Unilever's FIRECRACKER® products or are somehow associated with Unilever and its POPSICLE® products, and to trade upon the extremely valuable goodwill which Unilever enjoys in its marks and trade dress and specifically, the

FIRECRACKER® Trade Dress. Wells' intentions are made abundantly clear bythe fact that
BOMB POPS products being sold in the Infringing Trade Dress arenowbeing mixed inwith Unilever's POPSICLE® branded products on retail shelves, thereby increasing the likelihood of
confusion.

Ourclient also hasrecognized Wells' use of "The Original" as anobvious attempt to imply that your company is the original icepopbrand which is clearly notthe case,

DuaneMorris
Mr. Mike Wells ~~

|
!

Wells Enterprises, Inc. February 17, 2014

I f
I

Page 4 Lest there be any doubt asto theconfusion being created by virtue of Wells' use ofthe InfringingTrade Dress,recentmarketresearch shows thatmore than 60% of respondents
believed that BOMB POPS are made by the same companythat makes POPSICLE® products.

I

f I
|

f

I
|

Accordingly, we hereby demand, onbehalf ofUnilever, that you provide uswith written
confirmation, by the close of business on February 25 ,2014, that Wells:

f

(a) will ULTmediately cease all use ofthe Infringing Trade Dress; and
(b) will not, in the future, utilize any trade dress which copies, simulates or is
otherwise confusingly similar to, the POPSICLE® Trade Dress or the

f

I
t

!
i

FIRECRACKER® Trade Dress.
While we are hopeful that this matter can beresolved amicably, please be advised that Unilever takes the protection of itsintellectual property rights very seriously, and will, ifwe do

[

j I

not receive the written confirmation requested above, take whatever additional steps itdeems
appropriate in. order to enforce its extremely valuable rights in thePOPSICLE® Trade Dress and

I

j

the FIRECRACKER® Trade Dress.
This letter is written without prejudice to any ofUnilever's claims, rights and/or
remedies, all of which areexpressly reserved.

j

I

\

j

Very truly yours,

Gregory P. Gulia
GPG:slj

DM2W64743.1

Exhibit A

Exhibit B

Exhibit C

E* - -4

m *MfwnHM9*«Mr

vu

»rV