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Natu J. Patel, SBN 188618 Jason Chuan, SBN 261868 THE PATEL LAW FIRM, P.C. 22952 Mill Creek Drive Laguna Hills, California 92653 Phone: 949.955.1077 Facsimile: 949.955.1877 NPatel@thePatelLawFirm.com Attorneys for Plaintiff, Starbuzz Tobacco, Inc., a California corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) Case No.: ) ) COMPLAINT FOR: Plaintiff, ) vs. ) 1. TRADEMARK ) INFRINGEMENT; (UNDER 15 U.S.C. §1114) PHD MARKETING, INC., a California ) ) corporation, E-HOSE 2. TRADEMARK TECHNOLOGIES, LLC, a California ) ) INFRINGEMENT; limited liability company, THAER ) (UNDER 15 U.S.C. §1125) AHMAD, an individual, JOHN ) KAMAR, an individual, SAMIR 3. FALSE ADVERTISING JABER, an individual, and DOES 1-20, ) ) (UNDER 15 U.S.C. §1125) inclusive, ) ) 4. TRADE DRESS Defendants. ) INFRINGEMENT ) (UNDER 15 U.S.C. §1125) ) ) 5. COMMON LAW ) TRADEMARK ) INFRINGEMENT AND ) UNFAIR COMPETITION. ) ) 6. UNFAIR BUSINESS
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STARBUZZ TOBACCO, INC., a California corporation,

Complaint

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) PRACTICES; ) (UNDER BUS. & PROF. ) CODE §17200 ET SEQ.) ) ) 7. DECLARATORY RELIEF ) FOR OWNERSHIP OF ) TRADE DRESS ) ) DEMAND FOR JURY TRIAL ) Plaintiff, Starbuzz Tobacco, Inc. complains and alleges as follows: PARTIES 1. Plaintiff, Starbuzz Tobacco, Inc. (“Starbuzz” or “Plaintiff”), is a

California corporation, with its principal place of business in the City of Garden Grove, Orange County, California. 2. Defendant, E-Hose Technologies, LLC (“E-Hose”), is a California

limited liability company, with its principal place of business in the City of Commerce, Los Angeles County, California. Plaintiff is informed and believes, and on that basis alleges, that E-Hose is a member managed limited liability company. 3. Defendant, PhD Marketing, Inc. (“PhD”), is a California corporation,

with its principal place of business in the City of Pomona, Los Angeles County, California. 4. Defendant, Thaer Ahmad (“Ahmad”), is, and at all times relevant

hereto was, a citizen or permanent resident of the United States, who resided in and
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Complaint

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was domiciled in the State of California. Ahmad was and continues to be the president of PhD and E-Hose. 5. Defendant, John Kamar (“Kamar”), is, and at all times relevant hereto

was, a citizen or permanent resident of the United States, who resided in and was domiciled in the State of California. 6. Defendant, Samir Jaber (“Jaber”), is, and at all times relevant hereto

was, a citizen or permanent resident of the United States, who resided in and was domiciled in the State of California. 7. Plaintiff is informed and believes, and on that basis alleges, that

Ahmad, Kamar, and Jaber are members of E-Hose, as well as officers and shareholders of PhD. 8. Ahmad, Kamar, and Jaber are collectively referred to as the

“Individual Defendants.” 9. E-Hose, PhD, and the Individual Defendants are collectively referred

to as the “Defendants”. 10. Plaintiff is further informed and believes, and on that basis alleges,

that the Individual Defendants are responsible for controlling and directing E-Hose and PhD’s activities.

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Complaint

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11.

Plaintiff is informed and believes, and on that basis alleges, that

Defendants are responsible for their acts and for their conduct, which are the true legal causes for the damages herein alleged. DOE ALLEGATIONS 12. The true names and capacities, whether individual, corporate,

associate or otherwise, of defendants DOES 1 through 20, inclusive, are unknown to Plaintiffs at this time, and Plaintiffs, therefore, sues said defendants by such fictitious names. Plaintiffs will ask leave of Court to amend this complaint when the same shall have been ascertained. Plaintiffs are informed and believes, and thereon alleges that, each DOE defendant was responsible intentionally, or in some other actionable manner, for the events and happenings referred to herein, which proximately caused injury and damage to Plaintiffs, as hereinafter alleged. 13. Any reference to Defendants shall refer to the named defendants and

all DOE defendants, and to each of them. JURISDICTION AND VENUE 14. This action is properly before this Court as the Plaintiffs’ causes of

action arose in Orange County, California. This Court has jurisdiction over the subject matter of the cause of action under the Lanham Act. 15. Venue is proper pursuant to 28 U.S.C. § 1391(b) and (c) since all of

the Defendants reside in this District. E-Hose is a California limited liability

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Complaint

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company with its principal place of business in Los Angeles County, California, PhD is a California corporation with its principal place of business in Los Angeles County, California, and Ahmad, Kamar and Jaber are individuals residing in Los Angeles County, California. Venue is also proper pursuant to 28 U.S.C. § 1391(e) as Plaintiffs’ cause of action arose in Orange County, California. INTRODUCTION 16. This is an action concerning Defendants’ infringement of Starbuzz’s

trademarks. Defendants have flagrantly disregarded Starbuzz’s trademarks and used Starbuzz’s name, without authorization, to promote their products. Defendants have done so with the intent to steal the goodwill in Starbuzz’s name and injure Starbuzz’s reputation. PERTINENT FACTS 17. Starbuzz was incorporated in or about 2005, and since then has been

involved in the business of manufacturing and distribution of high quality flavored tobacco and other related products. Starbuzz’s Trademarks 18. Starbuzz sells and distributes tobacco products under various

registered federal trademarks incorporating its business name, including, but not limited to, the following (the “Starbuzz Marks”):

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Complaint

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Trademark

Serial/Reg. Register No.

First Use At Least As Early As April 3, 2005 February 25, 2010 June 18, 2006

Registration Exhibit Date

STARBUZZ STARBUZZ

3,113,110 4,032,280

Principal Principal

July 4, 2006 September 27, 2011 May 22, 2012 July 14, 2009 February 28, 2012 May 4, 2010

A B

STARBUZZ STARBUZZ TOBACCO STARBUZZ TOBACCO STARBUZZ TOBACCO SINCE 2005

4,146,752 3,653,296

Principal

C D

Principal January 11, 2005

4,104,682

Principal

April 23, 2007

E

3,783,438

Principal

May 2, 2008

F

19.

At all times relevant herein, Starbuzz has been, and still is, the owner

of the exclusive rights, title, and interest in the Starbuzz Marks for tobacco and related products, and has the full and exclusive rights to bring suit to enforce its trademark rights, including the right to recover for past infringement. Starbuzz’s Sale of Electronic Cigarettes 20. In or about 2012, Starbuzz was preparing to expand its product line to

include electronic cigarettes with the same flavors as its tobacco products. PhD heard of Starbuzz’s interest and approached Starbuzz with the idea of co-branding

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Complaint

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an electronic cigarette. Starbuzz selected PhD as the manufacturer for its STARBUZZ branded electronic cigarette products. 21. When PhD and the Individual Defendants met with Plaintiffs, PhD

was a minor E-cigarette company, had few international contacts, and were not well known in the hookah industry. 22. Plaintiff is informed and believes that the PhD and the Individual

Defendants intended to use Plaintiffs trademark name and logo, so that the Defendants could branch out into the U.S. and International hookah market, an area that Defendants had no prior success in. 23. On August 9, 2012, Starbuzz entered into an exclusive co-branding

and distribution agreement with PhD (the “PhD Agreement”), wherein Starbuzz agreed to license Starbuzz’s trademarks to PhD for use on electronic cigarettes manufactured by PhD. 24. Any products that PhD manufactured, marketed, promoted, sold, or

distributed under the PhD Agreement was required to include both the STARBUZZ trademark and the STARBUZZ TOBACCO SINCE 2005 design mark (the “Starbuzz Logo”). Starbuzz’s Development of Electronic Hookahs 25. Subsequently, Elhalwani, Starbuzz’s chief executive officer, came up

with a new idea for an electronic hookah that could produce a large quantity of

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Complaint

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smoke-like vapor, to mimic the experience of smoking a hookah pipe (the “Technology”). 26. Elhalwani collaborated with PhD’s president, Jaber, to create an

electronic hookah that incorporated Elhalwani’s new Technology. 27. Ahmad, Kamar, and Jaber then formed a new company, E-Hose, for

the production of electronic hookahs incorporating the new Technology. 28. On July 5, 2013, Starbuzz, Elhalwani, E-Hose and PhD entered into

an agreement for E-Hose to manufacture the electronic hookahs that Elhalwani invented (the “E-Hose Agreement”). 29. The written E-Hose Agreement was very specific, and did not grant E-

Hose or PhD the unlimited right to use the Starbuzz Marks. Instead, it contained the following terms: a. E-Hose would be the exclusive manufacturer of the electronic

hookahs incorporating the new Technology, including its cartridges and accessories (the “E-Hose Products”). b. E-Hose would pay for the filing of a patent application for the

Technology, and that Ahmad would assign his interest in the Technology, if any, to Elhalwani, including the right to prosecute the patent application in the United States and worldwide.

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Complaint

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c.

E-Hose would have a non-exclusive license to use the

trademark “STARBUZZ” and other trademarks owned by Starbuzz in connection with the E-Hose Products. d. The E-Hose Products would have the design depicted in the E-

Hose Agreement, and would bear the Starbuzz Logo. E-Hose would sell the E-Hose Products exclusively to Starbuzz and PhD for distribution in the United States and Canada. e. E-Hose would have the sole right to distribute and sell the E-

Hose Products to distributors outside of the United States and Canada. 30. Pursuant to the parties’ agreement, E-Hose was responsible for

supplying E-Hose Products bearing the Starbuzz Logo. The E-Hose products, however, were not manufactured by E-Hose, but a different company in China, Kimree Technology Co., Ltd. A true and correct copy of a photo of the E-Hose Products is attached hereto as Exhibit G. E-Hose sold those products to Starbuzz and PhD, who then distributed those products in the United States and Canada. 31. In the beginning, E-Hose Products’ design became well-known and

instantly recognizable among consumers of electronic hookahs. In fact, because the E-Hose Products were so well designed, Starbuzz & PhD were recognized for launching the best designed new non-tobacco product of the 2013 Tobacco Plus Expo.

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Complaint

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32.

Since they were introduced in the market, Starbuzz extensively

marketed the E-Hose Products. As a result of Starbuzz’s marketing and distribution of products, consumers began to associate the E-Hose Products and their design with Starbuzz. Therefore, the design of the E-Hose Products has acquired secondary meaning and has become widely recognized by the general consuming public and the trade as a designation of source identifying Starbuzz. 33. After witnessing the success of E-Hose Products, Defendants began

making unreasonable demands on Plaintiffs, claiming that they had spent time and $250,000, and were thus entitled to half of the profits generated from E-Hose Products. E-Hose and PhD Make Mini E-Hose By Excluding Starbuzz 34. After the production of the E-Hose Products, Plaintiffs, without the

assistance of Defendants, conceived the idea of a miniature version, utilizing the same technology of the current product, but with smaller dimensions. 35. E-Hose then used Plaintiffs’ idea to create a prototype of the

miniature version of the E-Hose Products that incorporated the Plaintiffs’ Technology, which still bore the Starbuzz Logo. Plaintiffs are informed and believe, and based thereon allege, that E-Hose began using the prototype to manufacture miniature versions of the E-Hose Products without the Starbuzz Logo (the “Mini E-Hose”), which it then sold in the market along with PhD. E-Hose

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Complaint

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also offered copies of the Mini E-Hose for sale to Starbuzz’s customers. E-Hose and PhD did not inform Plaintiffs of their actions and never obtained Plaintiffs’ approval, even though per the E-Hose Agreement, Elhalwani was to be the sole inventor of the patent application pertaining to the Technology. Plaintiffs are informed and believe, and based thereon allege, that E-Hose engaged in these activities with the knowledge and participation of PhD and the Individual Defendants. A true and correct copy of a printout from the website www.squaresmoke.com advertising the Mini E-Hoses is attached hereto as Exhibit H. 36. Plaintiffs discovered E-Hose’s activities regarding the Mini E-Hose in

or about January 2014. Plaintiffs were also shocked to learn that the Mini E-Hose did not display the name, “Starbuzz” anywhere; in fact, the Mini E-Hoses inserted the PhD logo in place of the Starbuzz Logo. 37. As of today, Defendants have not paid anything to Plaintiffs for the

sale of the Mini E-Hoses or the E-Hose Products. 38. Plaintiff is informed and believes, and on that basis alleges, that all of

the Defendants (a) knew that E-Hose and PhD had no name or reputation in the market and by themselves would be unable to sell any products; (b) used Starbuzz and its reputation to build goodwill in the E-Hose Products; (c) later, used the goodwill to sell the Mini E-Hose and profited from it by completely excluding

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Complaint

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Plaintiffs from the sales/profits and royalties pursuant to the E-Hose Agreement; and (d) deceived vendors, customers and third parties simply to attract new business in competition to Starbuzz. Defendants’ Use of the Starbuzz Mark to Advertise the Mini E-Hose 39. The intentions and bad faith of E-Hose and PhD are further apparent

from their deceptive advertising and marketing tactics. Although they discarded the Starbuzz Logo from the Mini E-Hose, they continued using Starbuzz's name in marketing the products. In one specific instance, on January 28, 2014, PhD made various posts on Instagram, marketing the Mini E-Hose using the slogan “Ehose Mini from the makers of #starbuzz #ehose.” PhD also included a picture of the Mini E-Hose in its posts, which lacked any of the Starbuzz Marks or the Starbuzz Logo. A true and correct copy of photos from PhD’s post is attached hereto as Exhibit I. 40. Plaintiff is informed and believes, and on that basis alleges, that on

January 27, 2014, Thaer Ahmad further posted on Twitter the statement “Introducing the ehose mini #starbuzz #ehose,” again making use of the #starbuzz hashtag. A true and correct copy of photos a post by “mikesquaresmoke” is attached hereto as Exhibit J. 41. Plaintiff is informed and believes, and on that basis alleges, that E-

Hose and/or PhD have directed their distributors to market the Mini E-Hose using

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Complaint

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the “#starbuzz” hashtag on various social media networks. A true and correct copy of photos from distributors’ posts is attached hereto as Exhibit K. 42. Hashtags (“#”) are tags used in social media that function similarly to

keywords in a search engine, in that they allow a person searching the social media posts to display pictures or posts tagged with a specific hashtag. For example, a search for “#starbuzz” on Twitter would display every post containing the “#starbuzz” hashtag. 43. By using the “#starbuzz” hashtag to advertise the Mini E-Hose, E-

Hose and PhD have used Starbuzz’s name and trademark to advertise their own products, without Starbuzz’s authorization. 44. In another instance, E-Hose and PhD placed an advertisement for the

E-Hose Products and the Mini E-Hose on directly opposite pages in their 2014 product catalog. A true and correct copy of excerpts from PhD’s 2014 catalog is attached hereto as Exhibit L. Since those products have the same shape, consumers are likely to mistakenly believe that the Mini E-Hose are also Starbuzz’s products. 45. PhD’s use of the term “STARBUZZ” to market the Mini E-Hose is

not only an unfair business practice, but it also infringes on the Starbuzz Marks. PhD and E-Hose are using the Starbuzz Marks to market their products, in direct competition with Starbuzz. PhD’s intentional use of the Starbuzz Marks to

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Complaint

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promote its non-Starbuzz Mini E-Hose is particularly egregious because PhD knew that Starbuzz owned the Starbuzz Marks. 46. Given the similar or related nature of Starbuzz’s products and PhD’s

products, and PhD’s blatant use of the Starbuzz Marks to market their products, consumers are likely to be confused as to the source of Starbuzz’s products and PhD’s products. For instance, consumers are likely to mistakenly believe that Starbuzz produces the Mini E-Hose. 47. Confusion is not only likely, but has actually occurred because

Consumers have attempted to place orders for the Mini E-Hose with Starbuzz, mistakenly believing that Starbuzz produces the Mini E-Hose. 48. PhD knowingly used and continues to use the term “STARBUZZ” in

connection with marketing its Mini E-Hose without Starbuzz’s consent or authorization. Trade Dress Infringement Relating to the Mini E-Hose 49. The Mini E-Hose are identical in shape and overall design to the E-

Hose Products. Those Mini E-Hose, however, do not make any reference to Starbuzz. In fact, they omit the Starbuzz Logo and use the PhD logo instead. 50. Starbuzz is informed and believes, and on that basis alleges, that given

the similar or related nature of Starbuzz’s products and products PhD sells, and the

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Complaint

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similarity between the design of the E-Hose Products and the Mini E-Hose, consumers are likely to be confused as to the source of these two products. 51. E-Hose and PhD knowingly used and continue to use the design of the

E-Hose Products without Starbuzz’s consent or authorization. 52. The Mini E-Hose are in the same category of products as the E-Hose

Products. Therefore, E-Hose’s production and PhD’s sale, distribution and marketing of the Mini E-Hose are likely to cause consumer confusion. 53. Starbuzz is further informed and believes, and on that basis alleges,

that the parties have convergent marketing channels since they market their products throughout the United States, Canada, and internationally. E-Hose and PhD’s use of convergent marketing channels increases the likelihood of consumer confusion. 54. E-Hose and PhD’s continued use of Starbuzz’s trade dress is likely to

lead consumers, retailers, wholesalers, and vendors to mistakenly conclude that EHose and PhD are somehow affiliated, connected, or associated with Starbuzz. Any dissatisfaction with E-Hose and PhD’s products are likely to negatively affect Starbuzz’s reputation. Consumers are also likely to be misled and confused as to the true source, sponsorship, or affiliation of E-Hose and PhD’s products.

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Complaint

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55.

Starbuzz never consented, either orally or in writing, to allow E-Hose

to produce and PhD to sell and distribute electronic hookahs that use the Technology, without displaying any of the Starbuzz Marks or the Starbuzz Logo. 56. E-Hose and PhD knowingly continue to sell the Mini E-Hoses without

Starbuzz’s consent or authorization. 57. Plaintiff is informed and believes, and on that basis alleges, that the

Individual Defendants are the ones controlling E-Hose and PhD, all knew of Starbuzz’s prototype, and authorized, directed, or participated in E-Hose and/or PhD’s decision to copy the design of the prototype and produce, sell, and distribute the Mini E-Hose. PhD and E-Hose’s Attempt to Misappropriate Starbuzz’s Trade Dress 58. Starbuzz also learned that PhD and E-Hose are currently pursuing an

application to register the trade dress in the E-Hose Products. 59. On January 24, 2013, PhD filed an intent to use application to register

the trade dress in the E-Hose Products with the USPTO (U.S. Application Serial No. 85/831,231) (the “Trade Dress Application”). The Trade Dress Application was assigned to E-Hose on May 9, 2013. 60. During the prosecution of the Trade Dress Application, Ahmad, on

behalf of E-Hose, represented to the USPTO that consumers recognize the design of the E-Hose Product as a source identifier. Ahmad further claimed that the

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Complaint

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design identified E-Hose as the source of the products. A true and correct copy of Ahmad’s declaration submitted to the USPTO is attached hereto as Exhibit M. 61. Ahmad’s statements to the USPTO were false. Plaintiff is informed

and believes, and on that basis alleges, that consumers viewing the design of the EHose Products recognize Starbuzz as the source of the products, not E-Hose, and further recognize that E-Hose is merely the manufacturer for Starbuzz’s products. FIRST CAUSE OF ACTION TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 1114 Against E-Hose, PhD and the Individual Defendants 62. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

61, inclusive, of this Complaint as if fully set forth herein. 63. E-Hose, PhD, and the Individual Defendants engaged in trademark

infringement pursuant to 15 U.S.C. §1114. 64. Starbuzz is informed and believes, and on that basis alleges, that the

Individual Defendants controlled E-Hose and PhD and directed them to adopt and use the Starbuzz Marks. Accordingly, the Individual Defendants are also personally liable for E-Hose and PhD’s infringing activities. 65. E-Hose and PhD have promoted, sold, and marketed, and continues to

promote, sell, and market electronic hookahs using Starbuzz’s trademarks. 66. Starbuzz’s trademarks are highly distinctive, arbitrary and/or fanciful,

and are entitled to strong trademark protection.

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Complaint

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67.

E-Hose and PhD continue to promote, sell and market Mini E-Hose in

connection with Starbuzz’s trademarks, in direct competition with Starbuzz’s products. E-Hose and PhD therefore uses Starbuzz’s trademarks on the same, related, or complementary category of goods as Starbuzz. 68. Since E-Hose and PhD have used Starbuzz’s trademarks to advertise

the Mini E-Hose, consumers are likely to believe that the products are approved or made by Starbuzz, and are likely to be confused as to the source of the parties’ products. 69. Starbuzz is informed and believes, and on that basis alleges, that

Starbuzz, E-Hose and PhD market their products to the same consumers and through similar marketing channels. 70. E-Hose and PhD’s intentional, continuing and willful infringement of

Starbuzz’s trademarks has caused and will continue to cause damage to Starbuzz, and is causing irreparable harm to Starbuzz for which there is no adequate remedy at law. 71. E-Hose, PhD and the Individual Defendants are directly,

contributorily and/or vicariously liable for these actions.

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Complaint

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SECOND CAUSE OF ACTION TRADEMARK INFRINGEMENT UNDER 15 U.S.C. § 1125 Against E-Hose, PhD and the Individual Defendants 72. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

71, inclusive, of this Complaint as if fully set forth herein. 73. In connection with the Infringing Products, E-Hose and PhD

knowingly and willfully used in commerce, words, terms, names, symbols, or devices, or a combination thereof, which are likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of E-Hose and PhD with Starbuzz, or as to the origin, sponsorship, or approval of E-Hose and PhD’s products. 74. E-Hose and PhD’s use of Starbuzz’s trademarks constitutes trademark

infringement under 15 U.S.C. § 1125(a). 75. Starbuzz is informed and believes, and on that basis alleges, that the

Individual Defendants are the ones controlling E-Hose and PhD and directed them to adopt and use Starbuzz’s trademarks. Accordingly, the Individual Defendants are also personally liable for E-Hose and PhD’s infringing activities. 76. Starbuzz is informed and believes, and on that basis alleges, that

Starbuzz’s use of Starbuzz’s trademarks in commerce precedes E-Hose and PhD’s use of Starbuzz’s trademarks in interstate commerce.

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Complaint

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77.

Starbuzz is informed and believes, and on that basis alleges, that E-

Hose and PhD’s aforesaid acts were done with knowledge of Starbuzz’s trademarks, and the knowledge that use of such words, terms, names, symbols, or devices, or a combination thereof, was misleading. 78. E-Hose and PhD’s intentional and willful infringement of Starbuzz’s

trademarks has caused and will continue to cause damage to Starbuzz, and is causing irreparable harm to Starbuzz for which there is no adequate remedy at law. 79. Starbuzz was damaged by these acts in an amount to be proven at

trial. E-Hose and PhD’s actions have caused and will continue to cause irreparable harm to Starbuzz for which there is no adequate remedy at law, thus Starbuzz is also entitled to injunctive and equitable relief against E-Hose and PhD, under the Lanham Act. 80. E-Hose, PhD and the Individual Defendants are directly,

contributorily, and/ or vicariously liable for these actions. THIRD CAUSE OF ACTION TRADE DRESS INFRINGEMENT UNDER 15 U.S.C. § 1125 Against E-Hose, PhD and the Individual Defendants 81. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

80, inclusive, of this Complaint as if fully set forth herein. 82. E-Hose and PhD knowingly and willfully used in commerce Mini E-

Hose that have a design similar to the E-Hose Products, which is likely to cause

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Complaint

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confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of PhD with Starbuzz, or as to the origin, sponsorship, or approval of PhD’s store and products. 83. E-Hose and PhD’s actions have caused actual confusion among

consumers, who have mistakenly believed that Starbuzz produces the Mini EHose. 84. E-Hose and PhD’s use of designs that are confusingly similar to the E-

Hose Products constitutes trade dress infringement under 15 U.S.C. § 1125(a). 85. Starbuzz is informed and believes, and on that basis alleges, that

consumers recognize Starbuzz as the source of products with the same design as the E-Hose Products. Therefore, Starbuzz’s rights in the design of the E-Hose Products have priority over any rights that PhD or E-Hose may have. 86. Starbuzz is informed and believes, and on that basis alleges, that E-

Hose and PhD’s aforesaid acts were done with knowledge of Starbuzz’s trade dress, and the knowledge that use of such designs was misleading. 87. E-Hose and PhD’s intentional and willful infringement of Starbuzz’s

trade dress has caused and will continue to cause damage to Starbuzz, and is causing irreparable harm to Starbuzz for which there is no adequate remedy at law. 88. Starbuzz was damaged by these acts in an amount to be proven at

trial. E-Hose and PhD’s actions have caused and will continue to cause irreparable

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Complaint

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harm to Starbuzz for which there is no adequate remedy at law, thus Starbuzz is also entitled to injunctive and equitable relief against E-Hose and PhD, under the Lanham Act. 89. Starbuzz is informed and believes, and on that basis alleges, that the

Individual Defendants are the ones controlling E-Hose and PhD and directed them to adopt and use the infringing designs. Accordingly, the Individual Defendants are also personally liable for E-Hose and PhD’s infringing activities. 90. E-Hose, PhD and the Individual Defendants are directly,

contributorily, and/ or vicariously liable for these actions.

FOURTH CAUSE OF ACTION FALSE ADVERTISING UNDER 15 U.S.C. § 1125 Against E-Hose, PhD and the Individual Defendants 91. Plaintiffs re-allege and incorporate by reference paragraphs 1 through

90, inclusive, of this Complaint as if fully set forth herein. 92. PhD and E-Hose have intentionally marketed the E-Hose Products

and Mini E-Hose in a manner designed to falsely draw a connection between Starbuzz and the Mini E-Hose 93. In one instance, PhD has intentionally advertised its Mini E-Hose as

coming from the same makers of “#starbuzz #ehose”.

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Complaint

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94.

In another instance, PhD and E-Hose advertised the E-Hose Products

side by side with the Mini E-Hose, in a manner that is likely to cause consumers to believe that they are both made by Starbuzz. 95. Starbuzz is informed and believes, and on that basis alleges, that E-

Hose and PhD have further directed their distributors to advertise the Mini E-Hose with the “#starbuzz” hashtag. 96. E-Hose, PhD and their distributors’ statements are likely to mislead a

consumer to believe that the Mini E-Hose originate from Starbuzz, or were sponsored or approved by Starbuzz. 97. E-Hose, PhD and their distributors’ advertisements have caused actual

confusion among consumers, who have mistakenly believed that Starbuzz produces the Mini E-Hose. 98. E-Hose, PhD and their distributors’ misleading representations of fact

constitute false advertising under 15 U.S.C. §1125(a). 99. Starbuzz is informed and believes, and on that basis alleges, that the

Individual Defendants are the ones controlling E-Hose and PhD and directed them to publish the false or misleading advertising. Accordingly, the Individual Defendants are also personally liable for E-Hose and PhD’s infringing activities. 100. Starbuzz is informed and believes, and on that basis alleges, that EHose, PhD and their distributors’ aforesaid acts were done with knowledge of

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Complaint

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Starbuzz’s trademarks and trade dress, and the knowledge that use of such words, terms, names, symbols, or devices, or a combination thereof, was misleading. 101. E-Hose, PhD and their distributors’ intentional and willful acts of false or misleading advertising has caused and will continue to cause damage to Starbuzz, and is causing irreparable harm to Starbuzz for which there is no adequate remedy at law. 102. Starbuzz was damaged by these acts in an amount to be proven at trial. E-Hose and PhD’s actions have caused and will continue to cause irreparable harm to Starbuzz for which there is no adequate remedy at law, thus Starbuzz is also entitled to injunctive and equitable relief against PhD and E-Hose, under the Lanham Act. 103. E-Hose, PhD and the Individual Defendants are directly, contributorily, and/ or vicariously liable for these actions. FIFTH CAUSE OF ACTION COMMON LAW TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION Against E-Hose, PhD and the Individual Defendants 104. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 103, inclusive, of this Complaint as if fully set forth herein. 105. Starbuzz is informed and believes, and on that basis alleges, that EHose and PhD’s aforesaid acts constitute actionable wrongs under the common law in that E-Hose and PhD’s use of Starbuzz’s trademarks and sale of Mini E-Hose
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Complaint

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constitute an infringement and violation of Starbuzz’s rights in its trademarks and trade dress, and creates a likelihood that Starbuzz’s customers, potential customers, and the public generally will be confused or misled as to the source of goods and services because they are likely to believe that E-Hose and PhD’s non-Starbuzz branded goods are affiliated with that of Starbuzz. 106. Starbuzz is informed and believes, and on that basis alleges, that the Individual Defendants are the ones controlling E-Hose and PhD and directed them to adopt and use the Infringing Marks. Accordingly, the Individual Defendants are also personally liable for E-Hose and PhD’s infringing activities. 107. By reason of the foregoing unlawful acts, E-Hose and PhD have caused, and continue to cause, substantial and irreparable damage and injury to Starbuzz and to the public. E-Hose and PhD have benefited from such unlawful conduct and will continue to carry out such unlawful conduct and to be unjustly enriched thereby unless enjoined by this Court. 108. As a proximate and direct result of E-Hose and PhD’s acts as herein alleged, Starbuzz has sustained damages in an amount to be proven at trial. 109. E-Hose, PhD and the Individual Defendants are directly, contributorily and/or vicariously liable for these actions.

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Complaint

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SIXTH CAUSE OF ACTION UNFAIR COMPETITION (UNDER BUS. & PROF. CODE §17200 ET SEQ.) Against E-Hose, PhD and the Individual Defendants 110. Plaintiffs re-allege and incorporate by reference paragraphs 1 through 109, inclusive, of this Complaint as if fully set forth herein. 111. Starbuzz is informed and believes, and on that basis alleges, that EHose and PhD’s aforesaid acts constitute actionable wrongs under California Business and Professions Code §17200 et seq. in that: a. E-Hose and PhD’s unlawful, unfair, or fraudulent use of words,

terms, names, symbols, or devices, or a combination thereof, which are similar to the Infringing Marks, create a probability of confusion or misunderstanding as to the source, sponsorship, approval, or certification of Starbuzz’s, E-Hose and PhD’s goods. b. E-Hose and PhD’s unlawful, unfair, or fraudulent use of the

same design as Starbuzz’s E-Hose Products, without Starbuzz’s Logo, creates a probability of confusion or misunderstanding as to the source, sponsorship, approval, or certification of Starbuzz’s, E-Hose and PhD’s goods. c. E-Hose and PhD’s unlawful, unfair, or fraudulent

advertisements are likely to mislead the public into believing that Starbuzz manufactured the Mini E-Hose, or approved or sponsored their production.
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Complaint

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112. Starbuzz is informed and believes, and on that basis alleges, that EHose and PhD performed the aforementioned actions in an attempt to unfairly compete with Starbuzz. 113. By reason of the foregoing unlawful acts, E-Hose and PhD have caused, and continue to cause, substantial and irreparable damage and injury to Starbuzz and to the public. E-Hose and PhD have benefited from such unlawful conduct, and will continue to carry out such unlawful conduct and to be unjustly enriched thereby unless enjoined by this Court. 114. Starbuzz is informed and believes, and on that basis alleges, that the Individual Defendants are the ones controlling E-Hose and PhD, and specifically authorized, directed, or participated in the aforementioned tortious activities. 115. Starbuzz is further informed and believes, and on that basis alleges, that an ordinarily prudent person, knowing what the Individual Defendants knew at the time, would not have acted similarly under the circumstances. Accordingly, the Individual Defendants are also personally liable for E-Hose and PhD’s tortious conduct. 116. As a proximate and direct result of E-Hose and PhD’s acts as herein alleged, Starbuzz has sustained damages in an amount to be proven at trial. 117. E-Hose and PhD are directly, contributorily, and/or vicariously liable for these actions.

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Complaint

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118. As a consequence of E-Hose and PhD’s actions, Starbuzz is entitled to injunctive relief and an order that E-Hose and PhD disgorge all of their profits obtained from the manufacture, use, display or sale of the Infringing Products, the Mini E-Hoses, and any other infringing goods. SEVENTH CAUSE OF ACTION [Declaratory Judgment for Ownership of Trade Dress] (Against All Defendants) 119. Starbuzz re-alleges and incorporates by reference paragraphs 1 through 118, inclusive, of this Complaint as if fully set forth herein. 120. Based upon E-Hose and PhD’s application to register the design of the E-Hose Products with the USPTO, an actual controversy has arisen and now exists between Starbuzz, E-Hose and PhD concerning their respective trademark rights. This controversy is of sufficient immediacy to warrant a declaratory judgment. 121. Specifically, E-Hose and PhD claim that the design acts as a source identifier for E-Hose, and that E-Hose is the owner of the trade dress in the design of the E-Hose Products. 122. Starbuzz asserts that the design acts as a source identifier for Starbuzz, and that Starbuzz is the owner of the trade dress in the design of the E-Hose Products, based upon the fact that consumers have come to recognize the E-Hose Products as Starbuzz’s products.

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Complaint

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123. A judicial determination is essential at this time with respect to the parties’ rights to the design of the E-Hose Products. 124. Starbuzz therefore seeks a declaration from this Court that Starbuzz is the owner of all rights in the design of the E-Hose Products, and an order for EHose to assign the Trade Dress Application to Starbuzz. PRAYER FOR RELIEF WHEREFORE, Starbuzz respectfully prays for judgment against Defendants as follows: As to the First and Second Causes of Action for Trademark Infringement against all Defendants: 1. An Order finding that E-Hose, PhD, Ahmad, Kamar, and Jaber have

infringed Starbuzz’s intellectual property rights; 2. An Order requiring E-Hose, PhD, Ahmad, Kamar, and Jaber to

account for and disgorge any and all profits received by the use of Starbuzz’s intellectual property pursuant to 15 U.S.C. §1117(a)(1); 3. An award of the attorneys’ fees and costs of this action, in an amount

to be determined at trial, pursuant to 15 U.S.C. §1117(a)(3) and other applicable federal and state law; 4. An Order directing the recall from the marketplace and destruction of

any materials bearing Starbuzz’s trademarks, or any confusingly similar marks,

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Complaint

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including, but not limited to, the names STARBUZZ or STARBUZZ TOBACCO in any manner, being used, or intended to be used, for purposes of advertising or selling, or soliciting purchases of Mini E-Hoses or other unauthorized products or services related to Mini E-Hoses, or products sold in the course of providing such services, or any related activities, pursuant to 15 U.S.C. §1118; 5. A preliminary and permanent injunction, pursuant to 15 U.S.C. §1116,

enjoining and prohibiting E-Hose, PhD, and any of E-Hose and PhD’s employees, servants, and agents and all persons in active concert or participation with any of them from: A. Using Starbuzz’s trademarks, or any confusingly similar marks, including, but not limited to, the names STARBUZZ or STARBUZZ TOBACCO, in any manner, on or in products, merchandise, or goods, or for purposes of advertising, selling, or soliciting purchases of, unauthorized products or merchandise; B. C. Infringing on Starbuzz’s trademarks; Assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (A) and (B) above; 6. An Order requiring E-Hose, PhD, and E-Hose and PhD’s employees,

servants, and agents and all persons acting in concert with or for them, to file with

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Complaint

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this Court and serve on Starbuzz, within thirty (30) days after service of an injunction, a report in writing, under oath, setting forth in detail the manner and form in which E-Hose, PhD, Ahmad, Kamar, and Jaber have complied with the applicable injunction, pursuant to 15 U.S.C. §1116; 7. Pre-judgment interest on any amounts awarded at the maximum legal

rate as permitted by law and equity; and 8. and just. As to the Third Cause of Action for Trade Dress Infringement against all Defendants: 1. An Order finding that E-Hose, PhD, Ahmad, Kamar, and Jaber have Any other or further relief that the Court deems appropriate, proper,

infringed Starbuzz’s intellectual property rights; 2. An Order requiring E-Hose, PhD, Ahmad, Kamar, and Jaber to

account for and disgorge any and all profits received by the use of Starbuzz’s intellectual property pursuant to 15 U.S.C. §1117(a)(1); 3. An award of the attorneys’ fees and costs of this action, in an amount

to be determined at trial, pursuant to 15 U.S.C. §1117(a)(3) and other applicable federal and state law; 4. An Order directing the recall from the marketplace and destruction of

any materials bearing Starbuzz’s trade dress, or any confusingly similar designs, in

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Complaint

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any manner, being used, or intended to be used, for purposes of advertising or selling, or soliciting purchases of Mini E-Hoses and other unauthorized products, or services related to Mini E-Hoses and other unauthorized products, or products sold in the course of providing such services, or any related activities, pursuant to 15 U.S.C. §1118; 5. A preliminary and permanent injunction, pursuant to 15 U.S.C. §1116,

enjoining and prohibiting E-Hose, PhD and any of E-Hose and PhD’s employees, servants, and agents and all persons in active concert or participation with any of them from: A. Using Starbuzz’s trade dress, or any confusingly similar designs, in any manner, on or in unauthorized products, merchandise, or goods, or for purposes of advertising, selling, or soliciting purchases of, unauthorized products or merchandise; B. C. Infringing on Starbuzz’s trademarks; Assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (A) and (B) above; 6. An Order requiring E-Hose, PhD, Ahmad, Kamar, and Jaber and any

of E-Hose and PhD’s employees, servants, and agents and all persons acting in concert with or for them, to file with this Court and serve on Starbuzz, within thirty

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Complaint

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(30) days after service of an injunction, a report in writing, under oath, setting forth in detail the manner and form in which E-Hose and PhD have complied with the applicable injunction, pursuant to 15 U.S.C. §1116; 7. Pre-judgment interest on any amounts awarded at the maximum legal

rate as permitted by law and equity; and 8. and just. As to the Fourth Cause of Action for False Advertising against all Defendants 1. An Order finding that E-Hose, PhD and the Individual Defendants Any other or further relief that the Court deems appropriate, proper,

have infringed Starbuzz’s intellectual property rights and unfairly competed with Starbuzz; 2. Judgment for Starbuzz and against E-Hose, PhD, Ahmad, Kamar, and

Jaber for actual, special, and consequential damages, in an amount to be proven at trial and for costs incurred in the litigation; 3. A preliminary and permanent injunction, enjoining and prohibiting E-

Hose, PhD, and any of E-Hose and PhD’s employees, servants, or agents, and all persons in active concert or participation with any of them from misleading consumers into believing that Starbuzz manufactured, approved of, or sponsored the Mini E-Hoses.

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Complaint

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4.

Pre-judgment interest on any amounts awarded at the maximum legal

rate as permitted by law and equity; and Any other or further relief that the Court deems appropriate, proper, and just. As to the Fifth Cause of Action for Common Law Trademark Infringement against all Defendants: 1. An Order finding that E-Hose, PhD, Ahmad, Kamar, and Jaber have

infringed Starbuzz’s intellectual property rights and unfairly competed with Starbuzz; 2. Judgment for Starbuzz and against E-Hose, PhD, Ahmad, Kamar, and

Jaber for actual, special, and consequential damages, in an amount to be proven at trial and for costs incurred in the litigation; 3. An Order requiring E-Hose, PhD, Ahmad, Kamar, and Jaber to

account for and disgorge all gains, profits, and advantages from the violations of California State, and common law; 4. A preliminary and permanent injunction, enjoining and prohibiting E-

Hose, PhD, and any of E-Hose or PhD’s employees, servants, or agents, and all persons in active concert or participation with any of them from using Starbuzz’s trademarks to advertise the Mini E-Hoses or other unauthorized products, solicit business for such products, or otherwise compete with Starbuzz;

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Complaint

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5.

Pre-judgment interest on any amounts awarded at the maximum legal

rate as permitted by law and equity; and 6. and just. As to the Sixth Cause of Action for Unfair Competition against all Defendants: 1. An Order finding that E-Hose, PhD, Ahmad, Kamar, and Jaber have Any other or further relief that the Court deems appropriate, proper,

infringed Starbuzz’s intellectual property rights and unfairly competed with Starbuzz; 2. Judgment for Starbuzz and against E-Hose, PhD, Ahmad, Kamar, and

Jaber for actual, special, and consequential damages, in an amount to be proven at trial and for costs incurred in the litigation; 3. An Order requiring E-Hose, PhD, Ahmad, Kamar, and Jaber to

account for and disgorge all gains, profits, and advantages from the violations of California State, and common law; 4. A preliminary and permanent injunction, enjoining and prohibiting E-

Hose, PhD, and any of E-Hose and PhD’s employees, servants, or agents, and all persons in active concert or participation with any of them from: A. Using the Starbuzz trademarks to advertise the Mini E-Hoses and other unauthorized products, solicit business relating to such products, or otherwise compete with Starbuzz;

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Complaint

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B.

Using Starbuzz’s trade dress to advertise the Mini E-Hoses and other unauthorized products, solicit business relating to such products, or otherwise compete with Starbuzz; and

C.

Misleading consumers into believing that Starbuzz manufactured, approved of, or sponsored the Mini E-Hoses.

5.

Pre-judgment interest on any amounts awarded at the maximum legal

rate as permitted by law and equity; and 6. and just. As to the Seventh Cause of Action for Declaratory Relief: 1. An order declaring that Starbuzz owns all rights in the design of the Any other or further relief that the Court deems appropriate, proper,

E-Hose Products; 2. An order declaring that the design of the E-Hose Products functions as

a source identifier for Starbuzz; 3. Starbuzz; 4. An order for an award of attorneys’ fees and costs of this action, in an An order requiring E-Hose to assign the Trade Dress Application to

amount to be determined at trial, pursuant to applicable federal law; 5. Such additional and further relief as may follow from the entry of a

declaratory judgment; and

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Complaint

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6. and just.

Any other and further relief as the Court deems appropriate, proper

DATED: March 31, 2014

Respectfully Submitted, THE PATEL LAW FIRM, P.C.

Natu J. Patel Jason Chuan Attorneys for Plaintiff Starbuzz Tobacco, Inc.

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Complaint

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DEMAND FOR TRIAL BY JURY Plaintiff Starbuzz Tobacco, Inc. hereby demands a trial by jury on all issues raised in the Complaint. DATED: March 31, 2014 Respectfully Submitted, THE PATEL LAW FIRM, P.C.

Natu J. Patel Jason Chuan Attorneys for Plaintiff Starbuzz Tobacco, Inc.

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Complaint

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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EXHIBIT G

EHose-Starbuzz-StarterKit-Group-L.jpg (JPEG Image, 450 × 590 pixels)

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http://www.hookah-shisha.com/store/pc/catalog/EHose-Starbuzz-StarterK...

3/30/2014 5:47 PM

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EXHIBIT H

E-hose Mini Electronic Handheld Hookah Square Smoke Page 1 of 2 Case 8:14-cv-00487-AG-DFM Document 1-1 Filed 03/31/14 Page 16 of 31 Page ID #:54

Home > E-hose Mini Electronic Handheld Hookah Square Smoke

Introducing the new Square E-Hose Mini

Sporting the same fashionable design and reliability of it's predecessor, The E-Hose Mini stands about half as tall as the regular E-Hose. Now you can vape the same E-Hose cartridges in a smaller more portable E-Hose Mini.

Design
Square's patented design uses a larger than ordinary flavor cartridge to ensure a good flavorful puff. More vaper. More flavor. More fun. The build quality of the Square E-Hose Mini is as dependable as customers have come to expect from Square products. Unmatched and can not be compared to anything else on the market. All the components are built with durability in mind without sacrificing aesthetic appeal.

file:///C:/Users/NPATEL~2/AppData/Local/Temp/Low/4MZCRZ10.htm

3/30/2014

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EXHIBIT I

squaresmoke on Instagram

http://instagram.com/squaresmoke#

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1 of 1

2/10/2014 12:55 PM

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EXHIBIT J

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EXHIBIT K

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EXHIBIT L

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EXHIBIT M

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