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Case 5:18-cv-02436 Document 1 Filed 11/19/18 Page 1 of 15 Page ID #:1

1 Stephen G. Larson (SBN 145225)


2 slarson@larsonobrienlaw.com
Jerry Behnke (SBN 180642)
3 jbehnke@larsonobrienlaw.com
4 Dana M. Howard (SBN 280798)
dhoward@larsonobrienlaw.com
5 LARSON O’BRIEN LLP
6 555 South Flower Street, Suite 4400
Los Angeles, CA 90071
7 Telephone: 213.436.4888
8 Facsimile: 213.623.2000
9 Attorneys for Plaintiff
FIVE STAR GOURMET FOODS, INC.
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
12

13
FIVE STAR GOURMET FOODS, INC., CASE NO. 5:18-cv-2436
14 a California corporation,
COMPLAINT FOR:
15
Plaintiff,
16 (1) PATENT INFRINGEMENT (35
v. U.S.C. § 1, et seq.);
17
READY PAC FOODS, INC.,
18 (2) TRADE DRESS
a Delaware corporation, READY PAC
INFRINGEMENT (15 U.S.C. §
19 PRODUCE, INC., a Delaware
1051, et seq.); AND
corporation, and DOES 1-10, inclusive,
20
Defendants. (3) VIOLATION OF UNFAIR
21 COMPETITION LAW (Cal. Bus
22 & Prof. Code § 17200, et seq.)
23 DEMAND FOR JURY TRIAL
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COMPLAINT
CASE NO.: 5:18-CV-2436
Case 5:18-cv-02436 Document 1 Filed 11/19/18 Page 2 of 15 Page ID #:2

1 INTRODUCTION
2 1. Plaintiff Five Star Gourmet Foods, Inc. (“FiveStar”) has prepared and
3 distributed fresh, healthy, high-quality, and innovative food products to consumers,
4 retailers, and schoolchildren from its modest headquarters in Ontario, California for
5 nearly 20 years. As a pioneer in the flourishing premade health food space,
6 FiveStar’s cutting edge product innovations are mirrored by equally innovative and
7 recognizable packaging, which has helped build a nationwide following in the local
8 brand.
9 2. Defendants Ready Pac Foods, Inc. and Ready Pac Produce, Inc.
10 (together, “Ready Pac” or “Defendants”) are part of an international conglomerate
11 in the retail food space, Bonduelle. Defendants have tried time and again to
12 overtake FiveStar’s market share—especially in healthy, premade salads—to no
13 avail. Desperate to corner this market and squeeze out a smaller competitor,
14 Defendants have replicated not only FiveStar’s patent-protected packaging, but also
15 its branding, in a thinly-veiled effort to deceive consumers into buying Defendants’
16 products instead of FiveStar’s products.
17 3. Specifically, Defendants produce and distribute premade salads
18 throughout the United States, including California, that infringe FiveStar’s duly-
19 issued rights in U.S. Patent No. D769,732 S for “Container and Overwrap
20 Assembly” (the “‘732 Patent”), and FiveStar’s established trade dress rights in the
21 image of its “Simply Fresh” line of premium premade salads.
22 4. Defendants’ products are neither manufactured nor authorized by
23 FiveStar, nor are Defendants connected to or affiliated with FiveStar in any way.
24 This action seeks injunctive relief and monetary damages to remedy the harm to
25 FiveStar caused by Defendants’ infringement of FiveStar’s patent and trade dress
26 rights, which constitute unfair competition.
27 5. This is an action in law and in equity for patent infringement, trade
28 dress infringement, and unfair competition, arising under the Patent Act, 35 U.S.C.
1
COMPLAINT
CASE NO.: 5:18-CV-2436
Case 5:18-cv-02436 Document 1 Filed 11/19/18 Page 3 of 15 Page ID #:3

1 § 1, et seq., the Lanham Act, 15 U.S.C. § 1051, et seq., and California’s Unfair
2 Competition Law, Cal. Bus. & Prof. Code § 17200, et seq., respectively.
3 JURISDICTION AND VENUE
4 6. This case arises under the Patent Act, 35 U.S.C. § 1, et seq., the
5 Lanham Act, 15 U.S.C. § 1051, et seq., and Cal. Bus. & Prof. Code § 17200, et seq.
6 This Court has jurisdiction over this action pursuant to 15 U.S.C. § 39 and 28
7 U.S.C. § 1331, 1367(a) and 1338(a). The commercial activities of all parties, as
8 well as each separately, affect commerce that may lawfully be regulated by
9 Congress in accordance with the Lanham Act under 15 U.S.C. § 1127.
10 7. Venue is proper in the Central District of California under 28 U.S.C.
11 § 1391(b)(2) because FiveStar is headquartered in the District, Defendants and their
12 parent organization(s) transact business in this District, and the acts and omissions
13 giving rise to FiveStar’s claims occurred in this District.
14 PARTIES
15 8. Plaintiff Five Star Gourmet Foods, Inc. is a California corporation with
16 a principal place of business at 3380 East Ebony Street, Ontario, California 91761.
17 9. On information and belief, Defendant Ready Pac Foods, Inc. is a
18 Delaware corporation qualified to do business in California, with a principal place
19 of business at 4401 Foxdale Avenue, Irwindale, California 91706.
20 10. On information and belief, Defendant Ready Pac Produce, Inc. is a
21 Delaware corporation qualified to do business in California, with a principal place
22 of business at 4401 Foxdale Avenue, Irwindale, California 91706.
23 11. On information and belief, Defendants Ready Pac Foods, Inc. and
24 Ready Pac Produce, Inc. are wholly-owned subsidiaries of Bonduelle, a company
25 founded in France. FiveStar further alleges on information and belief that
26 Bonduelle owns several food brands around the world and conducts business in the
27 United States, including in California, through Defendants as “Bonduelle Fresh
28 Americas,” a company based out of Québec, Canada.
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COMPLAINT
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1 12. Does 1-10, inclusive, are sued herein under fictitious names, as their
2 true names and capacities are unknown to FiveStar at this time. When their true
3 names and capacities are ascertained, FiveStar will amend this Complaint by
4 inserting their true names and capacities herein. FiveStar is informed and believes,
5 and thereon alleges, that each of the fictitiously named Defendants is responsible in
6 some manner for the acts herein alleged, and that FiveStar’s damages, as herein
7 alleged, were proximately caused by the Doe Defendants.
8 GENERAL ALLEGATIONS
9 FIVESTAR’S PREMIUM SALAD PRODUCTS AND TRADE DRESS
10 13. Since 1998, FiveStar has prepared and distributed fresh, healthy, and
11 innovative food products through retail, school, and food service channels. The
12 public recognizes FiveStar’s fresh products due to its unique trade dress and its
13 patented packaging. FiveStar carefully prepares and assembles fresh ingredients
14 before they are refrigerated or quick-frozen, which allows FiveStar’s consumers to
15 enjoy a convenient finished product that tastes fresh and just-prepared. FiveStar’s
16 products are sold at food retailers nationwide, including grocery stores, health food
17 stores, membership-only warehouse clubs, and discount department stores in the
18 state of California.
19 14. One of FiveStar’s most popular products is a well-established line of
20 premium salads known under the trademarked names “Simply Fresh Salads” and
21 “Simply Fresh Organic.” These products are also an integral part of FiveStar’s
22 expanding Simply Fresh Line of products, including “Simply Fresh Kitchen,”
23 “Simply Fresh Snacks,” “Simply Fresh Soups,” Simply Fresh Sides,” “Simply
24 Fresh Solutions,” and “Simply Fresh 4 Kids” (collectively, the “Simply Fresh
25 Line”). FiveStar’s Simply Fresh Line fills an increasing market desire in recent
26 years for fresh ingredients grown without the use of pesticides, growth stimulants,
27 or antibiotics.
28 15. FiveStar’s Simply Fresh Line has been a longtime and successful
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COMPLAINT
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1 fixture at its various retailers, and FiveStar worked hard to create an established
2 look for the line that reflects FiveStar’s unique processes and brand. This hard
3 work has garnered a loyal consumer following in FiveStar’s Simply Fresh Line.
4 16. FiveStar’s Simply Fresh Line has been recognizable in the marketplace
5 due to the trade dress it has used consistently since at least 2014. FiveStar’s unique
6 vertical sleeve (which acts simultaneously as a packaging overwrap and label)
7 layout contains the well-established “Simply Fresh” logo at the top of the sleeve—
8 and for its Organic products, the word “Organic” immediately below—in readily
9 identifiable fonts and styles used for the Simply Fresh Line. Located below the
10 logo is the product name, comprised of the salad’s main ingredients, with a
11 photographic depiction of the ingredients. At the bottom is a more detailed listing
12 of the organic ingredients contained in the salad and, in the organic varieties, details
13 related to why the product is considered organic, such as “chicken raised without
14 antibiotics” and “non-GMO.” On or about the bottom of the sleeve is a row of four
15 logos showing icons of the various social media platforms FiveStar subscribes to,
16 and invites consumers to “follow us,” and there is a statement regarding the
17 recyclability of the sleeve and salad container as well as a statement about the
18 packaging materials being recycled from a certain number of plastic bottles. Below
19 are true and correct images of a FiveStar Simply Fresh Organic salad:
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28 FIVESTAR’S ‘732 PATENT


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COMPLAINT
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1 17. On December 23, 2014, FiveStar filed for a patent on the ornamental
2 design for a container and overwrap assembly used to sell two premade salads in
3 one package, i.e., two salad bowls held together using a cardboard overwrap, or
4 “sleeve.” On October 25, 2016, the U.S. Patent and Trademark Office duly,
5 properly, and legally issued U.S. Patent No. D769,732, entitled “Container and
6 Overwrap Assembly,” with FiveStar as the assignee. A full copy of the ‘732 Patent
7 is attached to this Complaint as Exhibit A, and below is a depiction of the protected
8 design:
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16 18. Since at least 2014 and continuing to date, in some retailers, two of
17 FiveStar’s Simply Fresh salads are sold in one unified package using FiveStar’s
18 patented stacked bowl assembly design.
19 DEFENDANTS’ SALES OF INFRINGING SALAD PRODUCTS
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19. On information and belief, in approximately October 2018, Defendants
21 began to produce, make, use, offer for sale, sell, and/or import a line of premade
22 salads called “Bistro Organic” that utilized a virtually identical cardboard overwrap
23 to that of FiveStar’s Simply Fresh Line, and particularly the organic varieties of
24 FiveStar’s line. Using an extremely similar vertical cardboard sleeve and design,
25 Defendants’ company and brand identifying information is at the top of the sleeve,
26 with the term “Organic” displayed immediately below—all of which employ a font
27 scheme functionally identical to FiveStar’s sleeve. Further, like FiveStar’s sleeve,
28 the specific product name is displayed toward the center together with photographic
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COMPLAINT
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1 depictions of the salad ingredients. The bottom of the sleeve, like FiveStar’s,
2 contains a more detailed listing of the organic ingredients contained in the salad
3 with details related to why the product is considered organic, i.e., “chicken raised
4 without antibiotics” and “non-GMO.” Further to the bottom of the sleeve, like
5 FiveStar’s sleeve, there is a “Follow Us” section with the same four social media
6 icons that FiveStar depicts, and a functionally identical statement about
7 recyclability and the product container being made from a certain number of
8 recycled plastic bottles. Below is a photo comparison of FiveStar and Defendants’
9 respective products:
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COMPLAINT
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1 20. On information and belief, Defendants produce and distribute premade


2 snacks, salads, and meals sold at retailers internationally, some of which are United
3 States retailers that also sell FiveStar’s products.
4 21. The stark similarity between FiveStar’s and Ready Pac’s salads is
5 compounded by Ready Pac’s use of FiveStar’s patented stacked container and
6 overwrap design as depicted in the ‘732 Patent, as well as the fact that FiveStar’s
7 and Ready Pac’s products are often displayed for purchase in the same manner, in
8 the same refrigerated display case, side-by-side.
9 22. Defendants’ infringing Bistro Organic salad line, which Defendants
10 produce, make, use, offer for sale, sell, and/or import throughout the United States,
11 is not made or produced by FiveStar, nor has FiveStar licensed, authorized,
12 sponsored, endorsed, or approved of Defendants’ actions in any way. FiveStar has
13 never provided any authorization, license, assignment, or other permission to
14 Defendants to use the ‘732 Patent or its Simply Fresh trade dress. Defendants are
15 not associated with FiveStar in any way.
16 23. Defendants’ continued production, sale, offering for sale, importation,
17 and/or distribution of its premade salads, including but not limited to its Bistro
18 Organic line of salads, as currently packaged and dressed, infringes the ‘732 Patent
19 and FiveStar’s trade dress. These infringing actions have resulted in irreparable
20 harm to FiveStar’s goodwill and business reputation with its consumers, for which
21 FiveStar has no adequate remedy at law.
22 FIRST CLAIM
23 Patent Infringement – 35 U.S.C. § 1, et seq.
24 Against All Defendants
25 24. FiveStar realleges and incorporates each allegation in Paragraphs 1
26 through 23 of this Complaint as though fully set forth herein.
27 25. Since at least October 2018, Defendants have produced, made, used,
28 offered for sale, sold, and/or imported, and continue to produce, make, use, offer to
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COMPLAINT
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1 sell, sell, and/or import premade salad products that infringe FiveStar’s ’732 Patent,
2 in violation of 35 U.S.C. § 271(a).
3 26. As a result of Defendants’ infringement of FiveStar’s rights in the ’732
4 Patent, FiveStar has suffered and will continue to suffer damages in an amount to
5 be proved at trial. In addition, FiveStar is entitled to recovery of Defendants’
6 profits pursuant to 35 U.S.C. § 289.
7 27. Defendants’ continued infringement with full knowledge of the ’732
8 Patent and FiveStar’s rights therein, at least as of the filing of this lawsuit, is
9 willful.
10 28. Defendants’ willful infringement of FiveStar’s rights in the ’732 Patent
11 warrants an award of treble damages under 35 U.S.C. § 284, and makes this an
12 exceptional case warranting an award of FiveStar’s reasonable attorneys’ fees and
13 costs under 35 U.S.C. § 285.
14 29. Defendants’ infringement of the ’732 Patent has caused irreparable
15 harm to FiveStar, and will continue to do so unless enjoined. As a result, FiveStar
16 is entitled to injunctive relief pursuant to 35 U.S.C. § 283.
17 SECOND CLAIM
18 Trade Dress Infringement – 15 U.S.C. § 1051, et seq.
19 Against All Defendants
20 30. FiveStar realleges and incorporates each allegation in Paragraphs 1
21 through 29 of this Complaint as though fully set forth herein.
22 31. Starting in approximately 2015, and continuing without interruption at
23 all times pertinent to this action, up to and including the present date, FiveStar has
24 used a trade dress design consisting of a vertical style cardboard sleeve affixed to
25 its salads that contains the well-established “Simply Fresh” logo at the top of the
26 sleeve—and, for its organic varieties, with the word “Organic” immediately
27 below—in readily identifiable fonts used for the Simply Fresh Line. Located below
28 the “Organic” identifier is the name of the particular salad, with a photographic
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COMPLAINT
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1 depiction of the ingredients. At the bottom of FiveStar’s vertical sleeve is a more


2 detailed listing of the organic ingredients contained in the salad with details related
3 to why the product is considered organic, i.e., “chicken raised without antibiotics”
4 and “non-GMO.” On or about the bottom of the sleeve is a row of four logos
5 showing icons of the various social media platforms FiveStar subscribes to, and
6 invites consumers to “follow us,” and there is a statement regarding the
7 recyclability of the sleeve and salad container as well as a statement about the
8 packaging materials being recycled from a certain number of plastic bottles.
9 32. FiveStar’s trade dress design is inherently distinctive, and FiveStar has
10 invested considerable resources in developing its trade dress design and in
11 promoting its products by use of this design.
12 33. Significant segments of consumers who are likely to purchase
13 FiveStar’s products identify this trade dress with FiveStar.
14 34. The function of FiveStar’s trade dress design is to identify FiveStar as
15 the source of its products and to establish a symbol of quality and goodwill that
16 consumers can trust.
17 35. Since at least October 2018, and continuing to the present, Defendants
18 have sold premade salads under the name “Bistro Organic” trade dress design that
19 is in all material respects confusingly similar to FiveStar’s “Simply Fresh” trade
20 dress and, particularly, FiveStar’s Simply Fresh organic varieties. Defendants’
21 Bistro Organic line utilizes FiveStar’s vertical design, with Ready Pac’s company
22 and brand identifying information at the top of the sleeve and the term “Organic”
23 displayed immediately below—all with a font scheme similar to FiveStar’s.
24 Further, like FiveStar’s sleeve, the product name is displayed toward the center
25 together with photographic depictions of the salad ingredients. The bottom of the
26 sleeve, like FiveStar’s, contains a more detailed listing of the organic ingredients
27 contained in the salad with details related to why the product is considered organic,
28 i.e., “chicken raised without antibiotics” and “non-GMO.” Further to the bottom of
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COMPLAINT
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1 the sleeve, like FiveStar’s sleeve, there is a “Follow Us” section with the same four
2 social media icons that FiveStar depicts, and a functionally identical statement
3 about recyclability and the product container being made from a certain number of
4 recycled plastic bottles.
5 36. On information and belief, Defendants intentionally and willfully
6 copied FiveStar’s trade dress design in order to cause confusion and unfairly
7 appropriate FiveStar’s established goodwill and divert FiveStar’s customers by
8 means of deception as to the source of Defendants’ products. Indeed, as a result of
9 Defendants’ use of a trade dress design that is similar to FiveStar’s, actual
10 consumer confusion has, in fact, occurred. Accordingly, it is a virtual certainty that
11 consumers are likely to be confused as to the source of the products they purchase,
12 in violation of 15 U.S.C. § 1125(a).
13 37. Defendants’ use of a confusingly similar trade dress design has caused
14 and will continue to cause FiveStar injury in the form of diverted sales and
15 diminution of the selling power of its established trade dress.
16 38. On information and belief, Defendants have derived and received, and
17 will continue to derive and receive, gains, profits, and advantages from Defendants’
18 trade dress infringement in an amount not presently known to FiveStar. By reason
19 of Defendants’ actions constituting trade dress infringement, FiveStar has been
20 damaged and is entitled to monetary relief in an amount to be determined at trial.
21 39. Unless enjoined, Defendants’ continuing infringement of FiveStar’s
22 trade dress is likely to cause FiveStar irreparable harm by diverting sales and
23 damaging FiveStar’s business reputation and the reputation of FiveStar’s Simply
24 Fresh Organic salad line. As a result, FiveStar is entitled to injunctive relief
25 pursuant to 15 U.S.C. § 1116.
26 40. Pursuant to 15 U.S.C. § 1117, FiveStar is entitled to damages for
27 Defendants’ infringing acts, up to three times actual damages as fixed by this Court,
28 and its reasonable attorneys’ fees for the necessity of bringing this claim.
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COMPLAINT
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1 THIRD CLAIM
2 Violation of Unfair Competition Law – Cal. Bus. & Prof. Code § 17200, et seq.
3 Against All Defendants
4 41. FiveStar realleges and incorporates each allegation in Paragraphs 1
5 through 40 of this Complaint as though fully set forth herein.
6 42. Defendants’ use of a design that infringes FiveStar’s patent and trade
7 dress protections, as set forth above, constitutes an unlawful, unfair, and/or
8 fraudulent business practice in violation of Cal. Bus. & Prof. Code § 17200, et seq.
9 43. Defendants’ use of a design that infringes FiveStar’s ‘732 Patent is
10 unlawful because it violates 35 U.S.C. § 271(a), which makes it unlawful to make,
11 use, offer to sell, or sell a patented invention during the term of the patent without
12 authority from the patent holder.
13 44. Defendants’ use of a design that infringes FiveStar’s trade dress
14 protections is unlawful because it violates Section 43(a) of the Lanham Act (15
15 U.S.C. 1125(a)), which makes it unlawful to use a word, term, name, symbol or
16 device, or any false or misleading description, in connection with any good or
17 container for a good, which is likely to cause confusion or mistake, or to deceive as
18 to the origin, sponsorship, or approval of said goods.
19 45. Defendants’ use of a design that infringes both FiveStar’s ‘732 Patent
20 and trade dress protections is unfair because it offends the established public policy
21 of California to protect its consumers, in this case, FiveStar’s California consumers,
22 from misleading, deceptive, and confusing products that deprive consumers of the
23 knowledge as to the true origin of the goods purchased.
24 46. Defendants’ use of a design that infringes both FiveStar’s ‘732 Patent
25 and trade dress protections is fraudulent because Defendants’ use of the infringing
26 design was implemented to deceive consumers into buying the similarly packaged
27 salads produced by Defendants instead of those produced by FiveStar. Defendants
28 did so by mimicking the patented design and trade dress of FiveStar’s products to
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COMPLAINT
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1 exploit the goodwill and business reputation FiveStar has built with its consumers
2 through its recognizable design and trade dress.
3 47. Pursuant to Cal. Bus. & Prof. Code §§ 17200 and 17203, FiveStar is
4 entitled to an order enjoining Defendants from continuing to carry out the unlawful,
5 unfair, and/or fraudulent business practice in the use of a product design that
6 infringes FiveStar’s patent and trade dress protections.
7 48. Further, as a direct and proximate cause of Defendants’ violation of
8 Cal. Bus. & Prof. Code § 17200, Defendants have been unjustly enriched and must
9 be required to make restitution to FiveStar or disgorge their ill-gotten gains
10 pursuant to Cal. Bus. & Prof. § 17203.
11 PRAYER FOR RELIEF
12 WHEREFORE, FiveStar prays for judgment against Defendants as follows:
13 A. That FiveStar’s ‘732 Patent be deemed valid and willfully infringed by
14 Defendants under 35 U.S.C. § 271;
15 B. A preliminary and/or permanent injunction restraining Defendants,
16 their officers, agents, servants, employees, directors, representatives, successors-in-
17 interest, parent corporations, subsidiary corporations, affiliated corporations, and all
18 other persons, firms, or entities acting in concert or participating with them, directly
19 or indirectly, from (1) manufacturing, using, marketing, distributing, selling,
20 offering to sell, and importing any product that infringes FiveStar’s ‘732 Patent, (2)
21 using confusingly similar trade dress on their products, and/or (3) unfairly
22 competing with FiveStar in any manner whatsoever, as well as a permanent
23 injunction compelling Defendants to destroy all existing labels, sleeves, overwraps,
24 packaging, or inventory adorned with the infringing trade dress, and to recall
25 products already sold with the infringing trade dress;
26 C. An award to FiveStar of compensatory damages, including but not
27 limited to, profits earned by Defendants through its infringement, FiveStar’s lost
28 profits as a result of Defendants’ infringement, and expenses incurred by FiveStar
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COMPLAINT
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1 in counteracting the confusing effects of Defendants’ use of the infringing trade


2 dress, in an amount according to proof, and that such damages be trebled pursuant
3 to 15 U.S.C. § 1117 and/or 35 U.S.C. § 284 as a result of Defendants’ deliberate
4 and willful infringement in conscious disregard of FiveStar’s rights;
5 D. A declaration that this case is exceptional, and in conjunction
6 therewith, an award of reasonable attorneys’ fees and costs pursuant to 35 U.S.C. §
7 285 and/or 15 U.S.C. § 1117;
8 E. A declaration that Defendants have competed unfairly with FiveStar
9 under Cal. Bus. & Prof. Code § 17200, et seq., and that Defendants’ actions in
10 doing so be adjudged intentional, willful, and done knowingly;
11 F. Restitution or disgorgement of profits pursuant to Cal. Bus. & Prof.
12 Code § 17203;
13 G. Pre-judgment and post-judgment interest as allowed by law; and
14 H. Such other and further equitable and legal relief as this Court deems
15 just and proper.
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17 Dated: November 19, 2018 LARSON O’BRIEN LLP


18

19 By: /s/ Stephen G. Larson


Stephen G. Larson
20 Jerry Behnke
Dana M. Howard
21 Attorneys for Plaintiff
FIVE STAR GOURMET FOODS,
22 INC.
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COMPLAINT
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1 DEMAND FOR JURY TRIAL


2 Pursuant to Federal Rule of Civil Procedure 38(b), FiveStar hereby demands
3 a trial by jury of all issues so triable.
4

5 Dated: November 19, 2018 LARSON O’BRIEN LLP


6

7 By: /s/ Stephen G. Larson


Stephen G. Larson
8 Jerry Behnke
Dana M. Howard
9 Attorneys for Plaintiff
FIVE STAR GOURMET FOODS,
10 INC.
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COMPLAINT
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EXHIBIT A
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