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UNITED STATES DISTRICT COURT


SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

HEARTLAND CONSUMER
PRODUCTS LLC and TC
HEARTLAND LLC

Plaintiffs,

v. Case No. 1:21-cv-322

SPEEDWAY, LLC JURY TRIAL DEMANDED

Defendant.

AMENDED COMPLAINT FOR


PERMANENT INJUNCTION AND DAMAGES

For its complaint against Defendant Speedway, LLC (“Speedway” or “Defendant”),

Plaintiffs, Heartland Consumer Products LLC (“Heartland”) and TC Heartland LLC (“TC

Heartland” or, together with Heartland, “Plaintiffs”), state as follows:

INTRODUCTION

Heartland is the owner of the famous SPLENDA® brand sugar substitute sweetener, which

sweetener is recognized around the world by its little yellow packets. SPLENDA Brand sucralose

sweetener (“SPLENDA® Brand Sweetener”) in its famous yellow package is 100% made in the

United States and is manufactured by and distributed for sale through Heartland’s affiliate, TC

Heartland. All ingredients, including the paper and even the box of SPLENDA® Brand Sweetener,

are made in the United States. Speedway has and continues to deceive consumers by providing

sucralose-based sweetener products in yellow packages that Speedway customers believe to be

SPLENDA® Brand sweetener products. The active ingredient of Speedway’s yellow-packeted

sweetener is, upon information and belief, a product of China, and Speedway fails to reveal this to

its customers by notation on the packet or by display. Indeed, to the contrary, the Speedway
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packets state that the product is packaged in the United States, thereby giving consumers the

impression that the sucralose inside is made in the United States.

Speedway’s conduct has unfairly, and in violation of the law, damaged and limited

Plaintiffs’ rights in the yellow trade dress and the SPLENDA® Brand. Moreover, Speedway’s

conduct has damaged and continues to damage the hard-earned reputation held by Plaintiffs in

these source indicators and to whittle away at the value of their famous trade dress and trademark

by using Heartland’s property to identify non-SPLENDA® sucralose-based sweeteners. As the

owner of various famous trademarks relevant to this dispute, Plaintiffs seek damages and

injunctive relief to enjoin Speedway’s false advertising and wrongful use of the yellow trade dress

and SPLENDA® trademark in commerce.

NATURE OF THE ACTION

1. This action arises from Defendant’s unfair competition, trade dress infringement,

trademark dilution, and trademark infringement caused by Defendant’s unauthorized use of

Plaintiffs’ trademark rights in and to the SPLENDA® Brand and Plaintiffs’ trade dress rights in

and to the well-known yellow packets in which SPLENDA® Brand products are sold

(“SPLENDA® IP”).

2. Defendant’s use of yellow packets for Defendant’s knock-off sucralose, which,

upon information and belief, is manufactured in China, and the provision of these knock-off

products in the knock-off packaging at coffee kiosks in Defendant’s convenience stores has misled

and is misleading consumers concerning the source of those yellow packets.

3. Defendant’s advertisement of its use of those knock-off yellow packets online has

and is misleading consumers concerning the source of those yellow packets.

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4. Plaintiffs assert unfair competition, false advertising, trade dress infringement, and

dilution claims under the Lanham Act, 15 U.S.C. §§ 1051 et seq., and Indiana state and common

law.

THE PARTIES

5. Plaintiff Heartland is a limited liability company, organized and existing under the

laws of the State of Delaware, with a principal business address of 14390 Clay Terrace Boulevard,

Suite 205, Carmel, Indiana 46032, in Hamilton County.

6. Plaintiff TC Heartland is a limited liability company, organized and existing under

the laws of the State of Indiana, with a principal business address of 14390 Clay Terrace

Boulevard, Suite 205, Carmel, Indiana 46032, in Hamilton County.

7. Plaintiffs are global leaders in the production of low-calorie sweetener products,

including the iconic SPLENDA® Brand sweetener, creamers, beverage concentrates, coffee, and

nutritional drinks.

8. Upon information and belief, Defendant Speedway LLC is organized and existing

under the laws of the State of Delaware with its principal place of business at 500 Speedway Drive,

Enon, Ohio 45353.

9. Upon information and belief, Speedway operates a chain of approximately 3,900

gas stations and convenience stores across thirty-six states, including in the State of Indiana.

JURISDICTION AND VENUE

10. This Court has subject matter jurisdiction over the claims asserted in this action

pursuant to at least 15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331 and 1338(a) and (b).

11. This Court also has jurisdiction over the related state and common law claims

pursuant to at least 28 U.S.C. § 1338(b) and supplemental jurisdiction under 28 U.S.C. § 1367.

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12. This Court has personal jurisdiction over Defendant because, upon information and

belief, Defendant is authorized to transact and regularly transacts business in this State and District,

and Defendant engages in other systematic and continuous contacts in this State and District.

13. Further, upon information and belief, Defendant has committed acts of trademark

infringement, trade dress infringement, dilution, and unfair competition in this State and District

that have caused harm to Plaintiffs here.

14. Venue is proper in this District and Division pursuant to at least 28 U.S.C.

§§ 1391(b)(1)-(2) and 1391(c)(2).

FACTUAL BACKGROUND

The SPLENDA® Brand

15. Each year, American consumers spend more than $700 million on sugar substitutes

— products that take the place of sugar and are low in calories.

16. Until 2000, the United States no-calorie sweetener market was dominated by

products made with saccharin (such as Sweet‘N Low®) or aspartame (such as Equal®).

17. In 2000, SPLENDA® Brand Sweetener was introduced as the first sucralose-based

sweetener.

18. Sucralose is manufactured starting with sugar and using a chemical process and

other components to create a sweetener that tastes like sugar.

19. SPLENDA® Brand Sweetener is a low-calorie sweetener using sucralose.

20. Since its introduction, SPLENDA® has been remarkably popular among

consumers.

21. After the introduction of SPLENDA®, other tabletop sucralose sweeteners began to

proliferate in the market.

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22. SPLENDA® Brand sweetener, however, is the only low-calorie sweetener made in

the United States that comes in a yellow package.

23. SPLENDA® Brand Sweetener is sold and is available in both retail and food service

markets and is used in a variety of products across private and commercial kitchens.

24. SPLENDA® Brand Sweetener is used to sweeten beverages and is purchased by

consumers for cooking and baking in their homes.

25. SPLENDA® Brand Sweetener is also used as an ingredient in third-party

commercial food production.

26. Across marketplaces, SPLENDA® Brand Sweetener has gained the trust of

customers by providing a superior product and brand experience for nearly two decades.

27. As a result, SPLENDA® is the market leader among low-calorie sweeteners in the

United States.

History of the SPLENDA® Brand

28. Years ago, researchers from an established British college, in conjunction with Tate

& Lyle PLC, were researching a new compound made from sugar, called sucralose.

29. As the story goes, a young researcher misheard a request to “test” the compound as

a request to “taste” it.

30. What the young researcher discovered was that sucralose was incredibly sweet, and,

more importantly, calorie free.

31. By 1990, several food and health organizations approved the use of sucralose in

food products, the sweetening ingredient in SPLENDA® Brand Sweetener.

32. Capitalizing on this approval, SPLENDA® Brand Sweetener made its worldwide

debut in Canada.

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33. Not only was SPLENDA® Brand Sweetener sweet, it was also the first low-calorie

sweetener that consumers could use for cooking and baking.

34. In the United States, the FDA approved sucralose for use in connection with food

products and food preparation on April 1, 1998.

35. Once again, SPLENDA® Brand Sweetener was at the forefront of the low-calorie

sweetener market by marketing SPLENDA® Brand Sweetener to U.S. consumers via the Internet

in 1999.

36. In September 2000, SPLENDA® Brand Sweetener officially launched in retail

stores across the United States.

37. In three short years after its launch in the United States, SPLENDA® Brand

Sweetener became the unrivaled leader in the low-calorie sweetener retail and food service

markets.

38. Additionally, sucralose has become one of the most extensively tested food

ingredients in the world.

39. Sucralose is approved for use in over 80 countries and used in more than 4000

products globally.

40. SPLENDA® is a brand recognized industry-wide and is associated with superior

customer service and product quality.

41. Plaintiffs pride themselves on the SPLENDA® reputation for product quality,

customer service, and innovation in the industry.

42. Since at least 2000, Plaintiffs and their affiliates or predecessors have continuously

offered for sale and sold their line of SPLENDA® Brand Sweetener using the color yellow as a

per se color mark for their packets, boxes, bags, and other products as a mark (hereinafter “Yellow

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Trade Dress” and, when referring to Plaintiffs’ products bearing the Yellow Trade Dress, the

“Yellow Products”).

43. This is an image of the “perfectly portable yellow packet” synonymous with the

SPLENDA® Brand Sweetener and the Yellow Trade Dress:

44. The Yellow Products are unique and superior to other sweeteners in the field

because, as detailed herein, they are made from sucralose made in the United States, by U.S.

workers, subject to U.S. environmental regulations, and are subject to rigorous quality control and

testing.

45. These Yellow Products do not derive any of their enhanced characteristics from use

of the Yellow Trade Dress; they are derived from the dedication to innovation of Plaintiffs and

their predecessors.

46. As a result of its widespread, continuous, and exclusive use of the Yellow Trade

Dress since at least 1999 to identify the Yellow Products and SPLENDA® as the source of the

Yellow Products, Heartland owns valid and subsisting common law trade dress rights to the

Yellow Trade Dress.

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47. The Yellow Products are by far the most preferred low-calorie sweetener products

in the United States, based on customer surveys and the SPLENDA® Brand’s leading market share.

48. Recognizing the value and strength of the SPLENDA® Brand, Heartland resolved

to acquire and invest in the brand.

49. On September 25, 2015, Heartland purchased the SPLENDA® Brand and its

goodwill from McNeil Nutritionals, LLC (“McNeil”), a subsidiary of Johnson & Johnson

Consumer, Inc. (the “Transaction”).

50. The Transaction solidified Heartland’s position as a global leader in the low-calorie

sweetener market and was critical for Plaintiffs to continue offering their customers the very best

tasting products to sweeten foods and beverages without adding calories.

51. As of September 26, 2020, a leading market research company, The Nielsen

Company, reports that American consumers spent $657 million on low-calorie sweeteners in the

preceding twelve (12) months.

52. At the time of the Nielsen Company September 26, 2020 report, the SPLENDA®

Brand also held the largest market share among low-calorie sweeteners, amounting to 26.6% of

the market.

53. Plaintiffs have expended and continue to expend substantial time, effort, and other

resources in acquiring, developing, advertising, and otherwise promoting SPLENDA® Brand

Sweetener, both nationally and globally.

54. As a result, SPLENDA® is a famous brand, instantly and widely recognized by

consumers, the public, and the trade.

55. Additionally, SPLENDA® enjoys significant and valuable consumer goodwill.

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SPLENDA® Yellow Trade Dress

56. The SPLENDA® yellow packaging is inherently distinctive because consumers are

predisposed to equate the color feature with a single source.

57. The very purpose of the yellow SPLENDA® product packaging is to identify the

source of the product to consumers.

58. The SPLENDA® Yellow Trade Dress makes such an impression on consumers that

they assume the trade dress is associated with a particular source.

59. The SPLENDA® Yellow Trade Dress is unique in the field of low-calorie

sweeteners.

60. In addition, and as a result of Plaintiffs’ and their predecessor’s extensive

advertising and marketing of the SPLENDA® Brand Sweetener in yellow packaging over twenty

years, the yellow packets have attained secondary (consumer brand recognition) meaning.

61. The recognition in consumers created by the Yellow Trade Dress includes not only

identifying yellow sweetener packets as containing SPLENDA® Brand Sweetener unless

consumers are provided with sufficient cues to conclude otherwise, but such consumer recognition

creates goodwill in and reliance on the known fact that SPLENDA® Brand Sweetener is a great-

tasting low-calorie sweetener that is from a single source, safely manufactured in the United States.

62. In grocery stores, other sellers of sucralose-based sweeteners in packages that have

yellow on them have been required to use a variety of cues to the consumer to reveal that the retail

package is not a SPLENDA® Brand package.

63. Plaintiffs’ research discloses that, when consumers of low-calorie sweeteners are

asked whether the color yellow used on a sweetener packet is a brand-specific design element, a

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statistically significant number of those consumers confirm that they believe that the color yellow

used on a sweetener packet is a brand-specific design element.

64. Plaintiffs’ research discloses that a statistically significant number of consumers

of low-calorie sweeteners trust that yellow packets of sweetener originate from one single source.

65. In fact, Plaintiffs’ research discloses that greater than 50% of customers of low-

calorie sweeteners asked about the source-indicating feature of yellow sweetener packages believe

that yellow packets of sweetener originate from one single source.

66. The Seventh Circuit has repeatedly held that a 50–percent figure is regarded as

clearly sufficient to establish secondary meaning.

67. Therefore, the use of the SPLENDA® Brand and the Yellow Trade Dress has come

to represent the reputation of Plaintiffs for providing U.S.-manufactured, great-tasting, low-calorie

sweetener and these source-indicating elements are synonymous with the Yellow Products and the

SPLENDA® Brand Sweetener.

68. The Yellow Trade Dress is not a functional product feature essential to the use of

low-calorie sweeteners themselves.

69. Instead the Yellow Trade Dress provides an easy way for consumers to identify the

source of low-calorie sweeteners sold under the U.S.-manufactured SPLENDA® brand.

SPLENDA® Intellectual Property

70. Heartland and its predecessors in interest have used a variety of legally protected

trademarks in connection with the SPLENDA® Brand Sweetener products.

71. For example, Heartland, through assignment or registration, is the current owner of

the following United States Trademark Registrations in connection with SPLENDA® Brand

Sweetener: Serial Nos. 1,544,079; 3,346,910; 4,664,653; 4,744,600; 5,104,211; and 5,224,428.

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72. Heartland, through assignment, is the current owner of United States Trademark

Registration Number 1,544,079 for SPLENDA, which mark is registered for use with low-calorie

sweetener products and was first used in commerce on August 29, 1988.

73. Heartland, through assignment, is the current owner of incontestable United States

Trademark Registration Number 3,346,910 for SPLENDA, which mark is registered for use with:

printed publications (first used in commerce in December 2013), an interactive website providing

information about low calorie sweeteners, recipes, cooking and baking (first used in commerce on

April 19, 1998), and an interactive website providing information about health information and

weight management information (first used in commerce on April 19, 1998).

74. Heartland, through assignment, is the current owner of United States Trademark

Registration Number 4,664,653 for SPLENDA LIVING, which mark is registered for use with an

online journal in the form of a blog focusing on timely food, nutritional and health topics, exposing

myths about dieting, and low-calorie products and sweeteners and was first used in commerce at

least as early as January 10, 2014.

75. Heartland, through assignment, is the current owner of United States Trademark

Registration Number 4,744,600 for CUANDO PIENSES EN AZUCAR, USA SPLENDA, which

mark translates to “when you think of sugar, use SPLENDA,” which mark is registered for use

with non-nutritional, low-calorie sweetening ingredients and artificial sweetener used in food

products and beverages (first used in commerce on February 28, 2014) and low-calorie sweetening

ingredients and artificial sweetener used in food products and beverages for medical use (first used

in commerce on February 28, 2014).

76. Heartland is the current owner of United States Trademark Registration Number

5,104,211 for SWEET SWAPS SPLENDA, which mark is registered for use with an interactive

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website that features information and social media posts concerning sweeteners, recipes, cooking

and baking (first used in commerce on January 30, 2015) and an interactive website that features

information and social media posts concerning health information, healthy living, weight

management and lifestyle wellness information (first used in commerce on January 30, 2015).

77. Heartland is the current owner of United States Trademark Registration Number

5,224,428 for the use of the trademark SWEET ZERO, which mark is registered for use with

artificial sweeteners and sugar substitutes and was first used in commerce at least as early as

December 1, 2016.

78. In addition to these registrations, as detailed herein, Heartland is the owner of

common law rights in the Yellow Trade Dress in connection with the Yellow Products.

79. These registrations, including any and all common law rights in the United States

in the SPLENDA® Brand and the Yellow Trade Dress, are referred to herein as the SPLENDA®

IP.

80. Heartland has also obtained trademark registrations worldwide for the SPLENDA®

IP in over 90 countries.

81. Heartland is the current owner of the following European Community Trademark

Registrations in connection with SPLENDA® Brand Sweetener: Trade Mark Nos. 001225767-

0004; 001225767-0005; 001225759-0006; 001225759-0002; 001225759-0008; 001225767-002;

and 001225767-006.

82. Each of the foregoing European Community Trademark Registrations is for a

design that includes a yellow-colored packet or package.

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83. Heartland is the current owner of the following Canadian Trademark Registrations

in connection with SPLENDA® Brand Sweetener: Nos. 1475949; 1476102; 1476108; 1476111;

1476106; 1476115; 1475947; and 1476103.

84. Each of the foregoing Canadian Trademark Registrations is for a design that

includes a yellow-colored packet or package.

85. Heartland is the current owner of the following Colombian Trademark

Registrations in connection with SPLENDA® Brand Sweetener: Registration Nos. 08119164 and

08124263.

86. Each of the foregoing Colombian Trademark Registrations is for a design that

includes a yellow-colored packet.

87. The SPLENDA® Brand and the Yellow Trade Dress are famous in the manner

defined by 15 U.S.C. § 1125(c).

88. The SPLENDA® Brand and the Yellow Trade Dress have been used continuously,

with wide promotion, and have never been abandoned.

89. TC Heartland is the exclusive licensee of the foregoing registered and common law

trademark and trade dress rights in the U.S., European Community, Canada, and Colombia. TC

Heartland manufactures and distributes SPLENDA® Brand Sweetener in the United States.

DEFENDANT’S INFRINGEMENT

90. Defendant has engaged in the active deception of customers through

misappropriation of the Yellow Trade Dress in a manner that makes Speedway’s yellow sucralose

packets easily mistakable for SPLENDA® Brand Sweetener’s famous yellow packets, leading

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customers to believe that Defendant carries SPLENDA® Brand Sweetener when Defendant does

not.

91. Defendant’s specific conduct also includes, and is not limited to, failing to provide

sufficient cues to the consumer that the yellow sweetener packets in Speedway stores are not the

leading brand sucralose-based sweetener sold by TC Heartland.

92. Speedway has a wide network of thousands of stores and, with knowledge or

reckless disregard of Heartland’s rights in the SPLENDA® Brand and the Yellow Trade Dress, has

contributed to mislabeling and misidentification of generic sweetener as actual SPLENDA® Brand

Sweetener in its stores.

93. Speedway’s activities, as described above, are likely to create a false impression

and deceive consumers and the public into believing that the knock-off sweetener provided by

Speedway in yellow packets in its convenience stores is SPLENDA® Brand Sweetener.

94. Speedway’s activities, as described above, have created actual false impressions,

consumer confusion, and consumer deception among the public such that consumers harbor a

mistaken belief that SPLENDA® Brand Sweetener is being offered at Speedway convenience

stores.

95. Speedway has even taken steps to attempt a “private-labeling” of genuine

SPLENDA® Brand Sweetener by packaging its sucralose sweetener in yellow packets:

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96. Moreover, Speedway has printed onto each packet “Packaged by SUGAR FOODS

CORP. N.Y., NY 10022 USA,” thereby leaving consumers with the mistaken impression that the

sucralose contained in the packet originated in the United States like SPLENDA® Brand

Sweetener.

97. The use of this yellow packaging demonstrates Speedway’s intent to benefit from

Plaintiffs’ goodwill and hard-won association of Plaintiffs’ Yellow Trade Dress with genuine

SPLENDA® Brand Sweetener.

98. Speedway’s use of this yellow packaging without any cues to customers that the

product is not genuine SPLENDA® Brand Sweetener leads to the confusion of which Plaintiffs

now complain.

99. This confusion is further amplified by Speedway’s description of these knock-off

packets as “Yellow,” which draws a strong association to the Yellow Trade Dress.

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100. That association is again amplified by Speedway’s use of the term “Yellow Sugar

Substitute” on its website, thereby drawing a connection between the iconic Yellow Trade Dress

and Speedway’s palmed-off product.

101. An image of the Speedway website appears below:

102. Consumers have a right to be told the truth about what is being added to their food

and to not be deceived, whether intentionally or not, by companies secretly substituting foreign

sourced sweeteners for genuine, American-made SPLENDA® Brand Sweetener.

103. Plaintiffs bring this suit to vindicate their own rights and to protect consumers from

this deceptive conduct.

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104. Plaintiffs have expended substantial resources to market and promote SPLENDA®

Brand Sweetener and the fact that SPLENDA® Brand Sweetener is manufactured in the United

States.

105. That SPLENDA® Brand Sweetener is manufactured in the United States has been

a key element of Plaintiffs’ marketing campaign for the SPLENDA® Brand.

106. Consumers have, therefore, come to expect that, when they select the Yellow

Products, they are receiving the highest quality low-calorie sweetener long represented by the

SPLENDA® Brand. Upon information and belief, Speedway intends to continue the above-

detailed course of conduct unless otherwise restrained.

107. Plaintiffs are suffering irreparable injury and have suffered substantial damages as

a result of Speedway’s activities.

108. Plaintiffs have no adequate remedy at law.

COUNT I
Trade Dress Infringement – Lanham Act, 15 U.S.C. § 1125

109. Plaintiffs re-allege the allegations contained in paragraphs 1 through 108 as if fully

set forth herein.

110. Plaintiffs have continuously used the Yellow Trade Dress in interstate commerce

in connection with their Yellow Products since at least 2000.

111. The strong consumer association with SPLENDA® as the source of yellow-

packeted sweeteners has made the Yellow Trade Dress a distinct color-based product packaging

mark that indicates the source of the goods to a consumer.

112. The SPLENDA® Yellow Trade Dress is inherently distinctive. See In re Forney

Indus., Inc., 955 F.3d 940, 945 (Fed. Cir. 2020) (recognizing that “a distinct color-based product

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packaging mark can indicate the source of the goods to a consumer, and, therefore, can be

inherently distinctive”).

113. In addition, the Yellow Trade Dress has acquired distinctiveness through secondary

meaning, and Plaintiffs have established valid and subsisting federal and state common law rights

in the Yellow Trade Dress through Plaintiffs’ use thereof.

114. Through such continuous and extensive use, Plaintiffs have acquired significant

goodwill in the Yellow Trade Dress.

115. Speedway’s use of yellow sucralose packets is confusingly similar to the Yellow

Trade Dress in appearance, commercial impression, and meaning.

116. Speedway’s use of the Yellow Trade Dress is occurring and has occurred without

the consent or authorization of Plaintiffs.

117. Further, Speedway provides yellow packets of knock-off sweetener without

sufficient cues to identify the product as not being genuine SPLENDA® Brand Sweetener.

118. Speedway’s infringing use of the Yellow Trade Dress in connection with the sale,

offer for sale, distribution, or advertising of goods, without sufficient cues to consumers that the

product is not genuine SPLENDA® Brand Sweetener, is likely to cause confusion as to source,

origin, sponsorship, affiliation, association, or approval and mislead consumers.

119. As a result of this misconduct, Speedway has infringed the rights of Plaintiffs in

the Yellow Trade Dress.

120. Upon information and belief, Speedway’s actions are intentional, willful, and

calculated to cause confusion, mistake or deception, entitling Plaintiffs to enhanced damages and

attorneys’ fees under 15 U.S.C. § 1117.

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121. As a result of Speedway’s violation of 15 U.S.C. § 1125(a), Plaintiffs are entitled

to destruction of the infringing, knock-off packets under 15 U.S.C. § 1118.

122. As a result of Speedway’s misconduct, Plaintiffs have been damaged and are

entitled to recover for the injuries sustained, including, and not limited to, Speedway’s profits from

the sale of infringing goods, actual damages, corrective advertising damages, costs of this

litigation, and attorneys’ fees associated with this litigation.

123. Plaintiffs have no adequate remedy at law.

124. Speedway’s conduct caused, and will continue to cause, damage and irreparable

harm to Plaintiffs unless this Court enjoins Speedway.

125. Therefore, Plaintiffs are also entitled to permanent injunctive relief.

COUNT II
Common Law Trade Dress Infringement – Indiana Trademark Act, Ind. Code 24-2-1-15

126. Plaintiffs re-allege the allegations contained in paragraphs 1 through 125 as if fully

set forth herein.

127. Plaintiffs have continuously used the SPLENDA® Brand and the Yellow Trade

Dress in interstate commerce in connection with their Yellow Products since at least 2000.

128. The strong consumer association with SPLENDA® as the source of yellow-

packeted sweeteners has made the Yellow Trade Dress a distinct color-based product packaging

mark that indicates the source of the goods to a consumer.

129. The Yellow Trade Dress is inherently distinctive.

130. In addition, the Yellow Trade Dress has acquired distinctiveness through secondary

meaning, and Heartland has established valid and subsisting federal and state common law rights

in the Yellow Trade Dress through Plaintiffs’ use thereof.

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131. Through such continuous and extensive use, Plaintiffs have acquired significant

goodwill in the Yellow Trade Dress.

132. Speedway’s use of yellow sucralose packets is confusingly similar to the Yellow

Trade Dress in appearance, commercial impression, and meaning.

133. Speedway’s use of the Yellow Trade Dress is occurring and has occurred without

the consent or authorization of Plaintiffs.

134. Further, Speedway provides yellow packets of knock-off sweetener without

sufficient cues to identify the product as not being genuine SPLENDA® Brand Sweetener.

135. Speedway’s infringing use of the Yellow Trade Dress in connection with the sale,

offer for sale, distribution, or advertising of goods, without sufficient cues to consumers that the

product is not genuine SPLENDA® Brand Sweetener, is likely to cause confusion as to source,

origin, sponsorship, affiliation, association, or approval and mislead consumers.

136. As a result of this misconduct, Speedway has infringed the rights of the Plaintiffs

in the Yellow Trade Dress.

137. As a result of Speedway’s misconduct, Plaintiffs have been damaged and are

entitled to recover for the injuries sustained, including, and not limited to, Speedway’s profits from

the sale of infringing goods, actual damages, punitive damages, corrective advertising damages,

costs of this litigation, and attorneys’ fees associated with this litigation.

138. Plaintiffs have no adequate remedy at law.

139. Speedway’s conduct caused, and will continue to cause, damage and irreparable

harm to Plaintiffs unless this Court enjoins Speedway.

140. Therefore, Plaintiffs are also entitled to permanent injunctive relief.

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COUNT III
False Designation of Origin and Unfair Competition – Lanham Act, 15 U.S.C. § 1125(a)

141. Plaintiffs re-allege the allegations contained in paragraphs 1 through 140 as if fully

set forth herein.

142. Speedway’s packaging and identification of its “yellow sugar substitute” in a

manner that allows the packages to appear to customers to be genuine SPLENDA® Brand product

that is manufactured in the United States constitutes a false designation of origin, false or

misleading description of fact, or false or misleading representation of fact that is: (a) likely to

cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association

of such person with another person, or as to the origin, sponsorship, or approval of Speedway’s

goods or commercial activities; or (b) in commercial advertising or promotion, to misrepresent the

nature, characteristics, qualities or geographic origin of Speedway’s goods or commercial

activities.

143. Further, Speedway, in connection with its provision of coffee and other beverages

to consumers, provides generic low-calorie sweetener in the famous yellow-colored packets

commonly associated with genuine SPLENDA® Brand Sweeteners.

144. Speedway’s yellow-colored packets are not provided to customers with sufficient

cues to the consumer to prevent the mistaken belief by consumers that the yellow packets are in

fact SPLENDA® Brand Sweetener.

145. Those actions constitute a false designation of origin, false or misleading

description of fact, or false or misleading representation of fact that is: (a) likely to cause confusion,

or to cause mistake, or to deceive as to the affiliation, connection or association of such person

with another person, or as to the origin, sponsorship, or approval of Speedway’s goods or

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commercial activities; or (b) in commercial advertising or promotion, to misrepresent the nature,

characteristics, qualities or geographic origin of Speedway’s goods or commercial activities.

146. Speedway’s use of the SPLENDA® IP is occurring and has occurred without the

consent or authorization of Plaintiffs.

147. As a result of this misconduct, Speedway has infringed the rights of the Plaintiffs

in the Yellow Trade Dress.

148. Upon information and belief, Speedway has wrongfully promoted its goods as

SPLENDA® Brand Sweetener, including by referring to Speedway’s goods as “Yellow Sugar

Substitute” on its website, with knowledge that Speedway was misrepresenting the nature,

characteristics, qualities, and/or geographic origin of its goods.

149. Speedway’s provision of generic sweetener in yellow packets, without sufficient

cues to consumers that the product is not genuine SPLENDA® Brand Sweetener, provides

consumers with information that was and is misleading in context.

150. Upon information and belief, Speedway’s actions are intentional, willful, and

calculated to cause confusion, mistake or deception, entitling Plaintiffs to enhanced damages and

attorneys’ fees under 15 U.S.C. § 1117.

151. As a result of Speedway’s violation of 15 U.S.C. § 1125(a), Plaintiffs are entitled

to destruction of the infringing, knock-off packets under 15 U.S.C. § 1118.

152. As a result of Speedway’s misconduct, Plaintiffs have been damaged and are

entitled to recover for the injuries sustained, including, and not limited to, Speedway’s profits from

the sale of infringing goods, actual damages, punitive damages, corrective advertising damages,

costs of this litigation, and attorneys’ fees associated with this litigation.

153. Plaintiffs have no adequate remedy at law.

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154. Speedway’s conduct caused, and will continue to cause, damage and irreparable

harm to Plaintiffs unless this Court enjoins Speedway.

155. Therefore, Plaintiffs are also entitled to permanent injunctive relief.

COUNT IV
False or Misleading Representation of Fact; False Advertising – Lanham Act,
15 U.S.C. § 1125(a)

156. Plaintiffs re-allege the allegations contained in paragraphs 1 through 155 as if fully

set forth herein.

157. Speedway’s packaging of its infringing product states “Packaged by SUGAR

FOODS CORP. N.Y., NY 10022 USA.”

158. This statement on Speedway’s packaging makes it appear to customers that the

sucralose contained therein is a product that is made in the United States.

159. Because, upon information and belief, Speedway’s sucralose is made in China, the

statement on Speedway’s infringing product constitutes a false or misleading description of fact

or false or misleading representation of fact that is: (a) likely to cause confusion, or to cause

mistake, or to deceive as to the origin or approval of Speedway’s goods or commercial activities;

or (b) in commercial advertising or promotion, to misrepresent the nature, characteristics, qualities

or geographic origin of Speedway’s goods or commercial activities.

160. Speedway’s packaging of its infringing product with the statement “Packaged by

SUGAR FOODS CORP. N.Y., NY 10022 USA,” without further disclosing that the sucralose

contained within that package is not in fact from the United States, is false and misleading.

161. Consumers of food products value the place of production of those food items,

especially in light of the risks of dangerous food products from other countries, as has previously

occurred with contaminated baby formulas from China, contaminated dog food from China, the

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sale of expired meat to global brands from China, and other contamination and purity-related

problems with food products produced outside of the United States.

162. Producing food within the United States, while often more expensive, can benefit

the producer because more customers are likely to trust and rely upon that brand knowing that the

product was manufactured in a well-regulated country like the United States.

163. Plaintiffs have prided themselves on manufacturing SPLENDA® Brand Sweetener

in the United States to ensure consistent, extraordinary quality, and many consumers trust

SPLENDA® Brand Sweetener for that very reason.

164. The Federal Trade Commission (“FTC”), recognizing the importance to consumers

of U.S. origin claims in advertising and labeling, has regulated the use of such claims through

advisory opinions, individual cases, and a December 1, 1997 Enforcement Policy Statement on

U.S. Origin Claims (the “Policy Statement”), available at https://www.ftc.gov/public-

statements/1997/12/enforcement-policy-statement-us-origin-claims. See B. Sanfield, Inc. v.

Finlay Fine Jewelry Corp., 168 F.3d 967, 973 (7th Cir. 1999) (holding that the district court erred

in failing to consider advertising regulations and explaining that “as the administrative agency

charged with preventing unfair trade practices, the Commission’s assessment of what constitutes

deceptive advertising commands deference from the judiciary”).

165. Pursuant to the FTC’s Policy Statement, “the Commission will find an

advertisement or label deceptive . . . if it contains a representation or omission of fact that is likely

to mislead consumers acting reasonably under the circumstances, and that representation or

omission is material.” Such representations “may be made by either express or implied claims.”

166. The FTC’s Policy Statement explains that “[d]epending on the context, U.S.

symbols or geographic references, such as U.S. flags, outlines of U.S. maps, or references to U.S.

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locations of headquarters or factories, may, by themselves or in conjunction with other phrases or

images, convey a claim of U.S. origin.”

167. In addition, the FTC’s Policy Statement explains that general terms such as

“‘produced’ or ‘manufactured’ in the United States are likely to require further qualification when

they are used to describe a product that is not all or virtually all made in the United States.”

168. That qualification is required because “[s]uch terms are unlikely to convey to

consumers a message limited to a particular process performed, or part manufactured, in the United

States” and so “they are likely to be understood by consumers as synonymous with ‘Made in USA’

and therefore as unqualified U.S. origin claims.”

169. The Policy Statement is clear that, when a product contains an unqualified claim

implying U.S. origin, the product should contain a negligible amount of foreign content.

170. Speedway’s packaging of its infringing product to state “Packaged by SUGAR

FOODS CORP. N.Y., NY 10022 USA,” involves the use of a general term that creates an

unqualified claim implying U.S. origin.

171. Speedway’s use of a general term creating an unqualified claim implying U.S.

origin conveys to many consumers that its product is made in the United States.

172. Upon information and belief, Speedway’s sucralose product is not manufactured in

the United States, but in China.

173. Speedway’s failure to disclose that its sucralose product is made in China,

especially after implying that the product is all or virtually all made in the United States, is false

and/or will mislead consumers.

174. Those actions constitute a false designation of origin, false or misleading

description of fact, or false or misleading representation of fact that is: (a) likely to cause confusion,

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or to cause mistake, or to deceive as to the origin or approval of Speedway’s goods or commercial

activities; or (b) in commercial advertising or promotion, to misrepresent the nature,

characteristics, qualities or geographic origin of Speedway’s goods or commercial activities.

175. As a result of this misconduct, Speedway has prevented consumers from

demanding that Speedway provide SPLENDA® Brand Sweetener that is actually made in the

United States.

176. As a further result of this misconduct, Speedway has prevented consumers from

foregoing coffee purchases at Speedway stores in favor of other convenience stores that carry

genuine SPLENDA® Brand Sweetener.

177. Upon information and belief, Speedway’s actions are intentional, willful, and

calculated to cause confusion, mistake, or deception, entitling Plaintiffs to enhanced damages and

attorneys’ fees under 15 U.S.C. § 1117.

178. As a result of Speedway’s violation of 15 U.S.C. § 1125(a), Plaintiffs are entitled

to destruction of the infringing, knock-off packets under 15 U.S.C. § 1118.

179. As a result of Speedway’s misconduct, Plaintiffs have been damaged and are

entitled to recover for the injuries sustained, including, and not limited to, Speedway’s profits from

the sale of infringing goods, actual damages, punitive damages, corrective advertising damages,

costs of this litigation, and attorneys’ fees associated with this litigation.

180. Plaintiffs have no adequate remedy at law.

181. Speedway’s conduct caused, and will continue to cause, damage and irreparable

harm to Plaintiffs unless this Court enjoins Speedway.

182. Therefore, Plaintiffs are also entitled to permanent injunctive relief.

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COUNT V
Common Law Unfair Competition

183. Plaintiffs re-allege the allegations contained in paragraphs 1 through 182 as if fully

set forth herein.

184. Plaintiffs and their affiliates or predecessors have continuously used the Yellow

Trade Dress in interstate commerce in connection with their Yellow Products since at least 2000.

185. The strong consumer association with SPLENDA® as the source of yellow-

packeted sweeteners has made the Yellow Trade Dress a distinct color-based product packaging

mark that indicates the source of the goods to a consumer.

186. The SPLENDA® Yellow Trade Dress is inherently distinctive.

187. In addition, the Yellow Trade Dress has acquired distinctiveness through secondary

meaning, and Plaintiffs have established valid and subsisting federal and state common law rights

in the Yellow Trade Dress through Plaintiffs’ use thereof.

188. Through such continuous and extensive use, Plaintiffs have acquired significant

goodwill in the Yellow Trade Dress.

189. Speedway has engaged in unfair competition against Plaintiffs. These acts have

included, and are not limited to, the following particular misdeeds.

190. Speedway has misrepresented that its sweetener packets are SPLENDA® Brand

Sweetener by packaging its sweetener in yellow-colored packets that are confusingly similar to the

Yellow Trade Dress.

191. Speedway has misrepresented that its sweetener packets are SPLENDA® Brand

Sweetener by referring to those packets as “Yellow Sugar Substitute” thereby creating an

association in the minds of consumers that these packets contain SPLENDA® Brand Sweetener.

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192. Speedway has reaped the benefits of customer association of Speedway with the

SPLENDA® Brand Sweetener without paying Plaintiffs for that benefit.

193. Speedway’s infringing use of the Yellow Trade Dress in connection with the sale,

offering for sale, distribution, or advertising of goods has caused and is likely to continue to cause

confusion, mistake, or deception concerning whether Speedway’s products are associated,

affiliated or connected with, or approved or sponsored by Plaintiffs, constituting unfair

competition in violation of the common law of the State of Indiana.

194. Upon information and belief, as a proximate cause of its unlawful conduct,

Speedway has or will receive substantial profits to which it is not entitled.

195. Speedway has competed unfairly with Plaintiffs and has realized unjust profits in

an amount to be established at trial.

196. Upon information and belief, Speedway’s actions are intentional, willful, and

calculated to cause confusion, mistake, or deception.

197. As a result of Speedway’s conduct, Plaintiffs have been damaged and are entitled

to recover for the injuries sustained, including, and not limited to, Speedway’s profits from the

sale of infringing goods, actual damages, punitive damages, corrective advertising damages, costs

of this litigation, and attorneys’ fees associated with this litigation.

198. Further, Speedway has caused irreparable injury to Plaintiffs’ reputation and

goodwill and, unless enjoined, Speedway will continue its acts of unfair competition.

199. Plaintiffs are therefore also entitled to preliminary and permanent injunctive relief.

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COUNT VI
Trademark Dilution – Lanham Act, 15 U.S.C. § 1125(c)

200. Plaintiffs re-allege the allegations contained in paragraphs 1 through 199 as if fully

set forth herein.

201. Plaintiffs have continuously used the Yellow Trade Dress in interstate commerce

in connection with their Yellow Products since at least 2000.

202. The strong consumer association with SPLENDA® as the source of yellow-

packeted sweeteners has made the Yellow Trade Dress a distinct color-based product packaging

mark that indicates the source of the goods to a consumer.

203. The SPLENDA® Yellow Trade Dress is inherently distinctive.

204. In addition, the Yellow Trade Dress has acquired distinctiveness through secondary

meaning, and Plaintiffs have established valid and subsisting federal and state common law rights

in the Yellow Trade Dress through Plaintiffs’ use thereof.

205. Through such continuous and extensive use, Plaintiffs have acquired significant

goodwill in the Yellow Trade Dress.

206. The Yellow Trade Dress, as protected under common law, is famous and inherently

distinctive and/or it has otherwise acquired substantial secondary meaning and widespread public

recognition in accordance with 15 U.S.C. § 1125(c).

207. The SPLENDA® Brand is famous and inherently distinctive and/or it has otherwise

acquired substantial secondary meaning and widespread public recognition in accordance with 15

U.S.C. § 1125(c).

208. Speedway’s use of the Yellow Trade Dress, without authorization from Plaintiffs

and without providing genuine SPLENDA® Brand Sweetener to Speedway’s customers, is diluting

and dilutive of the distinctive quality of the famous and iconic Yellow Trade Dress, thereby

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decreasing the capacity of the Yellow Trade Dress to identify and distinguish Plaintiffs’ products

from knock-off sweeteners that are not guaranteed to be the made-in-America, great-tasting,

SPLENDA® Brand Sweetener, and otherwise resulting in a likelihood of tarnishment and/or

blurring of Plaintiffs’ valuable and famous brand name through association of SPLENDA® Brand

Sweetener with lesser quality, Chinese-manufactured sucralose sweetening products.

209. Speedway has used the SPLENDA® Yellow Trade Dress for its own benefit in

connection with the sale of goods in Indiana and across the United States.

210. To the extent that Speedway’s use has been undertaken with the intent to use the

SPLENDA® Yellow Trade Dress as a generic indicator of non-branded sucralose-based sweetener,

such misconduct is misleading to consumers and likely to cause dilution by tarnishing and/or

blurring the goodwill in the Yellow Trade Dress.

211. Upon information and belief, Speedway’s actions demonstrate an intentional,

willful, knowing, and malicious intent to trade on the goodwill associated with Plaintiffs, the

Yellow Trade Dress, and/or SPLENDA® Brand Sweetener and to dilute the distinctive quality of

the famous Yellow Trade Dress and/or the famous SPLENDA® Brand, resulting in irreparable

injury to Plaintiffs and entitling Plaintiffs to enhanced damages and attorneys’ fees under 15 U.S.C.

§ 1117.

212. As a result of Speedway’s violation of 15 U.S.C. § 1125(c), Plaintiffs are entitled

to destruction of the infringing, knock-off packets under 15 U.S.C. § 1118.

213. As a result of Speedway’s misconduct, Plaintiffs have been damaged and are

entitled to recover for the injuries sustained.

214. Plaintiffs have no adequate remedy at law.

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215. Speedway’s conduct caused, and will continue to cause, damage and irreparable

harm to Plaintiffs unless this Court enjoins Speedway.

216. Therefore, Plaintiffs are also entitled to permanent injunctive relief.

COUNT VII
Trademark Dilution under Ind. Code 24-2-1-13.5

217. Plaintiffs re-allege the allegations contained in paragraphs 1 through 216 as if fully

set forth herein.

218. The Yellow Trade Dress is famous in Indiana and has been famous in Indiana since

at least, but perhaps earlier than, 2004.

219. The unauthorized commercial use of the Yellow Trade Dress by Speedway began

after the Yellow Trade Dress became famous in Indiana.

220. The unauthorized commercial use of the Yellow Trade Dress by Speedway without

sufficient cues to the consumer that the generic packets are not in fact SPLENDA® Brand

Sweetener has caused or is likely to cause dilution of the distinctive quality of the Yellow Trade

Dress through either tarnishment or blurring or both.

221. Speedway’s use of yellow low-calorie sweetener packets is misleading to

consumers and tarnishes and/or blurs the Yellow Trade Dress.

222. Plaintiffs are entitled to injunctive relief against Defendant for its violations of Ind.

Code 24-2-1-13.5.

223. Upon information and belief, Speedway has willfully traded on the reputation of

the Yellow Trade Dress, and/or caused dilution of the Yellow Trade Dress, and Speedway will

continue its unlawful conduct unless enjoined.

224. As a result of Speedway’s willful misconduct, Plaintiffs have been damaged and

are entitled to: all Heartland’s damages suffered by reason of Speedway’s use of the Yellow Trade

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Dress, Speedway’s profits from the sale of infringing goods, and Plaintiffs’ attorneys’ fees

associated with this litigation.

225. Further, Speedway has caused irreparable injury to Plaintiffs’ reputation and

goodwill and, unless enjoined, Speedway will continue its acts of unfair competition.

226. Plaintiffs are therefore also entitled to permanent injunctive relief.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

A. Enter judgment that Speedway has infringed Plaintiffs’ rights in the Yellow Trade

Dress, including and not limited to Plaintiffs’ federal statutory and common law rights;

B. Enter judgment that Speedway has diluted the distinctive quality of Plaintiffs’ rights in

the Yellow Trade Dress, including and not limited to Plaintiffs’ federal statutory and

common law rights;

C. Enter judgment that Speedway has falsely designated the origin of its yellow-packeted

sweetener and unfairly competed with Plaintiffs;

D. Enter judgment that Speedway has engaged in false advertising concerning the country

of origin of the sweetener product contained in Speedway’s yellow packets;

E. Permanently enjoin Speedway, its officers, agents, representatives, employees, and

those persons acting in concert or participation with them, from using the Yellow Trade

Dress or any trade dress confusingly similar thereto in connection with any of

Speedway’s goods offered to consumers;

F. Permanently enjoin Speedway, its officers, agents, representatives, employees, and

those persons acting in concert or participation with them, from making unqualified

U.S. origin claims with respect to Speedway’s generic sucralose sweetener;

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G. Order Speedway to pay actual damages that Plaintiffs have suffered as a result of

Speedway’s infringement, dilution, false advertising, false designation of origin, and

unfair competition as provided for by federal and state statutes and common law,

including and not limited to 15 U.S.C. § 1117(a) and Ind. Code § 24-2-1-13.5(c);

H. Order Speedway to disgorge all profits attributable to its infringement, dilution, false

designation of origin, false advertising, and unfair competition as provided for by

federal and state statutes and common law, including and not limited to 15 U.S.C.

§ 1117(a) and Ind. Code § 24-2-1-13.5(d);

I. Order Speedway to deliver for destruction all packets that infringe the SPLENDA®

Yellow Trade Dress, as provided for by 15 U.S.C. § 1118.

J. Order Speedway to provide corrective advertising on its website and in its convenience

stores;

K. Grant Plaintiffs enhanced damages, punitive damages, attorneys’ fees, and costs as

provided for by federal and state statutes, including and not limited to 15 U.S.C. § 1117

and Ind. Code § 24-2-1-13.5(d);

L. Grant further equitable relief in order to enjoin the harm caused by Speedway;

M. Grant Plaintiffs prejudgment and post-judgment interest; and

N. Grant such other and further relief as this Court deems just and equitable.

JURY DEMAND

Plaintiffs demand a trial by jury on all issues so triable.

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Respectfully submitted,

/s/ Holiday W. Banta


Holiday W. Banta (Atty. No. 17852-49)
Jessa DeGroote (Atty. No. 35847-49)
ICE MILLER LLP
One American Square, Suite 2900
Indianapolis, IN 46282
(317) 236-2100
H.Banta@icemiller.com
Jessa.DeGroote@icemiller.com

Alice Kelly (pro hac vice forthcoming)


ICE MILLER LLP
200 West Madison Street, Suite 3500
Chicago, IL 60606-3417
(312) 726-1567
Alice.Kelly@icemiller.com

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