USDC IN/ND case 3:21-cv-00634 document 1 filed 08/25/21 page 1 of 12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

BUBBLES ICE CREAM PARLOR & PIE

SHOPPE, INC.,

Plaintiff,

v. C.A. No. 3:21-cv-634

SCOOPS & SWEET BUBBLES, LLC, JURY TRIAL DEMANDED

Defendant.

COMPLAINT

Plaintiff Bubbles Ice Cream Parlor & Pie Shoppe, Inc. (“Bubbles” or “Plaintiff”), for its

complaint against Defendant Scoops & Sweet Bubbles, LLC (“Defendant”), hereby alleges as

follows and demands a jury trial on all issues so triable.

NATURE OF THE ACTION

1. This action arises from Defendant’s willful infringement of Bubbles’ trademark

rights, to wrongfully profit from the substantial goodwill and widespread positive reputation that

Bubbles has created and maintained for many years.

2. Since about 2004, Bubbles has operated an ice cream shop in Michigan City,

Indiana. The Bubbles ice cream shop sells ice cream and related products, and has and continues

to do so under the common law, unregistered trademark, BUBBLES ICE CREAM PARLOR.

3. Fully aware of the fame and reputation of the BUBBLES ICE CREAM PARLOR

trademark, Defendant intentionally adopted a confusingly similar name, Scoops & Sweet Bubbles

Ice Cream Parlor, as the designation for Defendant’s operation of an ice cream shop that also sells

ice cream and related products. It did so, moreover, while intentionally locating its ice cream shop

less than two miles from the Bubbles ice cream shop location.
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4. As soon as it learned of Defendant’s ice cream shop opening, Bubbles notified

Defendant of its rights, and proposed an amicable resolution to simply resolve this dispute.

Defendant at first ignored Bubble’s communication altogether, and only after being pressed to

respond, finally did respond – but even then, it overtly rejected resolution, all the while continuing

to operate as Scoops & Sweet Bubbles Ice Cream Parlor less than two miles from Bubbles ice

cream shop.

5. As a result, Bubbles brings this action for trademark infringement and unfair

competition under Federal and Indiana statutory and common law, to ensure that the consuming

public is not further confused, deceived or misled into purchasing Defendant’s products and

services thinking that they originate from or are in some way sponsored by or affiliated with

Bubbles, and to enjoin Defendant from further acts of willful infringement and unfair competition.

JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction over this action pursuant to Section 39 of

the Lanham Act (15 U.S.C. § 1121), and 28 U.S.C. §§ 1331 and 1338, and has supplemental

jurisdiction over state law claims pursuant to 28 U.S.C. § 1367. Bubbles’ claims are predicated

upon the Trademark Act of 1946, as amended, 15 U.S.C. §§ 1051 et seq., and substantial and

related claims under the statutory and common law of the State of Indiana.

7. Venue is properly founded in this judicial district and division pursuant to 28 U.S.C.

§ 1391(b) and L.R. 3-1, because Defendant resides in this judicial district and division and is

subject to personal jurisdiction within this judicial district and division, and because events giving

rise to these claims occurred within this judicial district and division.

PARTIES

8. Plaintiff Bubbles is a corporation organized under the laws of the State of Indiana,

having its principal place of business at 115 West Coolspring Avenue, Michigan City, Indiana

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46360. Bubbles is a family-owned and operated business that sells ice cream and related products

at its site in Michigan City, Indiana.

9. On information and belief, Defendant Scoops & Sweet Bubbles, LLC is a limited

liability company organized and existing under the laws of the State of Indiana, having its principal

place of business at 624 Wabash Street, Michigan City, Indiana 46360. Defendant sells ice cream

and related products at its site in Michigan City, Indiana.

BUBBLES AND THE BUBBLES TRADEMARK

10. Bubbles has operated an ice cream shop in the Michigan City area since 2004. Over

this 17+ year period of time, Bubbles has become renowned for its unique branding and high-

quality ice cream products and merchandise. It has done so at its single location in Michigan City,

Indiana, and has developed a strong reputation throughout Northwest Indiana for its products.

11. Since its start, Bubbles has offered for sale and sold its ice cream products and

merchandise under its common law trademark, BUBBLES ICE CREAM PARLOR (the “Bubbles

Trademark”). In addition to prominently using this word mark, Bubbles has also reinforced

recognition of the prominent “Bubbles” aspect of its mark for customers in various ways. The

architectural design of its building incorporates design features intended to reflect large circles to

emulate bubbles in the minds of consumers. It operates a bubble machine outside of its shop. It

has also included graphic bubbles in print media advertisement and other promotional materials

relating to its business. Below is a current exemplar of the Bubbles Facebook banner, which

incorporates the Bubbles Trademark as well as graphic aspects reinforcing the prominent

“Bubbles” aspect of the mark:

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12. Bubbles has realized substantial success in its sales of products offered under the

Bubbles Trademark. Bubbles has extensively advertised and promoted the products offered under

the Bubbles Trademark.

13. Bubbles has an active social media presence, with well-over 5,000 current followers

on Facebook.

14. Bubbles also has a strong market presence through its advertising and fundraiser

participation at Michigan City High School. Further, Bubbles is a regular, weekly advertiser in

the Beacher newspaper.

15. In addition, Bubbles has been the winner of the Reader’s Choice award for BEST

Ice Cream for 17 consecutive years as named by the LaPorte County Herald Dispatch.

16. Similarly, in 2021 Bubbles was voted favorite ice cream parlor in an on-line survey

by GreatNews.life and LaPortercounty.life, which did a spotlight on one of the Bubbles’ owners

for making a positive impact in the community.

17. Most telling of its recognition and customer goodwill, Bubbles was honored by

Senator Todd Young and awarded the small business of the day on May 6, 2019. The Senator read

into the Congressional Record its award for being an outstanding family-run business. The Senator

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later visited Bubbles and presented it with the congressional record copy, which hangs proudly on

Bubbles’ wall.

18. Bubbles continuously relies on customer referrals, marketing, its website, and

Facebook page, to reinforce recognition of its mark and association of the mark with its goods in

the minds of consumers.

19. As a result of its extensive marketing, advertising, and promotional efforts,

products that it offers in connection with its Bubbles Trademark are closely associated by

consumers of ice cream and related products and merchandise with Bubbles as the source of those

goods.

20. Through its long-time presence in Michigan City, advertising and marketing, and

high-quality product offerings, Bubbles has developed a loyal customer following that spans well

beyond Michigan City. Bubbles is regularly recognized and awarded as a favorite ice cream parlor

in Northwest Indiana.

21. Bubbles has generated substantial goodwill and customer recognition in its

BUBBLE ICE CREAM PARLOR trademark. Consumers immediately associate the mark, and

most importantly the prominent BUBBLES aspect of the mark, with Bubbles’ ice cream business

and products. The Bubbles Trademark has become well-known and famous, particularly among

purchasers of ice cream and related products throughout Northwest Indiana and beyond.

22. Moreover, Bubbles always endeavors to maintain its reputation for high quality ice

cream products that customers have come to associate with the Bubbles Trademark. Bubbles’

painstaking adherence to the highest quality standards has resulted in widespread and favorable

public acceptance among consumers for all products and services offered under the Bubbles

Trademark.

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23. As a result of Bubbles’ advertising and promotion, adherence to the highest quality

standards, and sales success over the course of 17+ years in business, the Bubbles Trademark is

widely-recognized in the Michigan City area and throughout Northwest Indiana, immediately

identifying Bubbles as the exclusive source of the products which are offered in connection with

the Bubbles Trademark, and signifying goodwill of incalculable value.

DEFENDANT’S UNLAWFUL ACTS

24. Defendant recently opened an ice cream shop under the name “Scoops and Sweet

Bubbles Ice Cream Parlor” (the Infringing Mark).

25. Defendant’s Infringing Mark as presented to the consuming public through signage

and other publications incorporates the entirety of the Bubbles Trademark, specifically, “Bubbles

Ice Cream Parlor.”

26. Defendant located its ice cream shop at 624 Wabash Street, Michigan City, Indiana

– less than two miles from Bubbles Ice Cream Parlor, located at 115 West Coolspring Avenue,

Michigan City, Indiana. The Defendant location is on the same street as the Bubbles Ice Cream

shop cross-street location, namely Wabash Street.

27. Defendant offers to sell and sells ice cream and related products to consumers under

the Infringing Mark. Additionally, Defendant is utilizing bubble imagery in signage and other

promotional materials, attempting to emphasize the “bubbles” aspect of its name just as Bubbles

does.

28. Defendant is offering to sell and selling ice cream and related products under the

Infringing Mark during the same hours as Bubbles’ business hours, currently 3:00 PM to 9:00 PM.

Defendant changed to these hours, moreover, on or about August 16, 2021 – one week after

Bubbles ice cream shop changed to these hours.

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29. Defendant has thus adopted a name that includes the exact words that comprise the

Bubbles Trademark, and is emphasizing the “bubbles” aspect of the name, all to sell ice cream and

related products, at a location very near the Bubbles ice cream shop, easily accessible by customers

via the same cross street that borders Bubbles ice cream shop, during business hours that mirror

those of the Bubbles ice cream shop.

30. Bubbles competes in the marketplace for the same consumers as Defendant.

31. Further, like Bubbles, Defendant advertises its products and services online

including on Facebook.

32. On July 17, 2021, Bubbles’ through counsel sent a letter to Defendant explaining

that Defendant’s use of the Infringing Mark was in violation of Section 43(a)(1)(A) of the Lanham

Act (15 U.S.C. § 1125) and Indiana state law. The letter proposed an amicable resolution in which

the Defendant would voluntarily remove the word BUBBLES from any and all signage, marketing

materials, printed or electronic materials, and/or any and all other references to Defendant’s ice

cream shop. A true and accurate copy of the letter is attached as Exhibit A.

33. Defendant failed to respond at all to the July 17 letter. After transmitting another

copy of the letter and again asking for a reply on July 26, 2021, Defendant did finally respond. A

true and accurate copy of the July 26, 2021 correspondence is attached as Exhibit B.

34. In a letter dated August 17, 2021, Defendant through counsel denied any trademark

violation, claimed no confusion, and otherwise indicated no intention that Defendant would cease

use of the Bubbles Trademark. A true and accurate copy of the letter is attached as Exhibit C.

35. Defendant’s continuing use of the Infringing Mark has caused, and is likely to

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

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of Defendant’s business with Bubbles, and to damage Bubbles’ business relations with consumers

and prospective consumers.

36. Defendant is aware of the strength and fame of the Bubbles Trademark, and the

goodwill symbolized thereby, and that the Infringing Mark cannot be legally used by it as an

indicator of source or sponsorship for the goods it is offering. Accordingly, Defendant has been

engaging in the above-described unlawful activities knowingly and intentionally, or with reckless

disregard for Bubbles’ rights in the Bubbles Trademark.

COUNT I

Trademark Infringement, False Designation of Origin, and Unfair Competition

(15 U.S.C. § 1125(a))

37. Bubbles incorporates fully herein paragraphs 1 to 36 as set forth above.

38. Bubbles solely and exclusively owns the common law Bubbles Trademark and all

right, title and interest therein.

39. Defendant’s use of the Infringing Mark in commerce and in connection with its

products, is likely to cause confusion, mistake or deception: (i) as to the affiliation, connection or

association with Bubbles, and (ii) as to the origin, sponsorship or approval of its products and

services by Bubbles.

40. Defendant has acted with knowledge of the Bubbles Trademark and with the

deliberate intention to unfairly benefit from the incalculable goodwill symbolized thereby.

41. Defendant’s actions have continued despite being expressly notified of the Bubbles

Trademark and Bubble’s request that it cease and desist use thereof.

42. Defendant’s acts therefore constitute willful trademark infringement, false

designation of origin, and unfair competition in violation of Section 43(a)(1)(A) of the Lanham

Act, 15 U.S.C. § 1125(a)(1)(A).

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43. Defendant has profited from its unlawful actions and it has been unjustly enriched

to the detriment of Bubbles. Defendant’s unlawful actions have caused Bubbles monetary damage

in an amount presently unknown, but in an amount to be determined at trial.

44. Upon information and belief, by its acts, Defendant has made and will make

substantial profits and gain to which it is not entitled in law or equity.

45. Defendant’s intentional and willful conduct has caused, and will continue to cause,

Bubbles irreparable harm unless enjoined, and Bubbles has no adequate remedy at law.

COUNT II

Trademark Infringement (Indiana Common Law; Ind. Code § 24-2-1-13.5)

46. Bubbles incorporates fully herein paragraphs 1 to 45 as set forth above.

47. Bubbles owns all right, title, and interest in and to the Bubbles Trademark as

aforesaid, including all common law rights in such mark, and such mark is famous, distinctive and

fanciful.

48. The aforesaid acts of Defendant constitute trademark infringement in violation of

the common law of the State of Indiana and Ind. Code § 24-2-1-13.5.

49. Defendant has acted with knowledge of the Bubbles Trademark and with the

deliberate intention to unfairly benefit from the incalculable goodwill symbolized thereby.

50. Defendant has profited from its unlawful actions and has been unjustly enriched to

the detriment of Bubbles. Defendant’s unlawful actions have caused Bubbles monetary damage

in an amount presently unknown, but in an amount to be determined at trial.

51. Upon information and belief, by its acts, Defendant has made and will make

substantial profits and gain to which it is not entitled in law or equity.

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COUNT III

Common Law Unfair Competition

52. Bubbles incorporates fully herein paragraphs 1 to 51 as set forth above.

53. Defendant’s use of the Infringing Mark in commerce in connection with its goods

and services is intended to cause, has caused, and is likely to continue to cause confusion, mistake

and deception among the general consuming public and the trade as to whether the goods and

services bearing the Infringing Mark originate from, or are affiliated with, sponsored by, or

endorsed by Bubbles.

54. Bubbles competes with Defendant for a common pool of customers.

55. Defendant has acted with knowledge of the Bubbles Trademark and with the

deliberate intent to deceive the general consuming public and the industry, and to benefit unfairly

from the incalculable goodwill symbolized by the Bubbles Trademark.

56. The aforesaid acts of Defendant constitute unfair competition in violation of the

common law of the State of Indiana.

57. Defendant has profited from its unlawful actions and has been unjustly enriched to

the detriment of Bubbles. Defendant’s unlawful actions have caused Bubbles monetary damage

in an amount presently unknown, but in an amount to be determined at trial.

58. Upon information and belief, by its acts, Defendant has made and will make

substantial profits and gain to which it is not entitled in law or equity.

59. Defendant’s intentional and willful conduct has caused, and will continue to cause,

Bubbles irreparable harm unless enjoined, and Bubbles has no adequate remedy at law.

PRAYER FOR RELIEF

Bubbles respectfully requests that this Court enter judgment in its favor and provide relief

as follows:

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1. Finding that (i) Defendant has violated Section 43(a) of the Lanham Act (15 U.S.C.

§ 1125(a)); and (ii) Defendant has engaged in trademark infringement and unfair competition

under the common law of Indiana;

2. Granting an injunction preliminarily and permanently restraining and enjoining

Defendant, its officers, agents, employees and attorneys, and all those persons or entities in active

concert or participation with it, or any of them, from:

a. advertising, marketing, promoting, supplying, distributing, offering for sale or selling

any products or services which bear the Infringing Mark, the Bubbles Trademark, or

any other mark substantially or confusingly similar thereto, and engaging in any other

activity constituting an infringement of any of Bubbles’ rights in the Bubbles

Trademark, or any other trademark owned by Bubbles; and

b. engaging in any other activity constituting unfair competition with Bubbles, or acts

and practices that confuse the public and/or the industry.

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

industry and public from deriving any erroneous impression that any product or service at issue in

this case that has been advertised, marketed, promoted, supplied, distributed, offered for sale or

sold by Defendant, has been authorized by Bubbles, or is related to or associated in any way with

Bubbles or its products and services.

4. Directing that Defendant accounts to and pays over to Bubbles all profits realized

by its wrongful acts and directing that such profits be trebled in accordance with Section 35 of the

Lanham Act, 15 U.S.C. § 1117 and Indiana law.

5. Awarding Bubbles its actual damages in accordance with Section 35 of the Lanham

Act, 15 U.S.C. § 1117 and Indiana law.

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6. Awarding Bubbles its costs and attorney’s fees and investigatory fees and expenses

to the full extent provided for by Section 35 of the Lanham Act, 15 U.S.C. § 1117 and Indiana law.

7. Requiring Defendant to deliver to Bubbles for destruction or other disposition all

advertising, promotional and marketing materials bearing the Infringing Mark, as well as all means

of making same.

8. Awarding Bubbles pre- and post- judgment interest on any monetary award made

part of the judgment against Defendant.

9. Awarding Bubbles such additional and further equitable or legal relief as the Court

deems just and proper

JURY TRIAL DEMAND

Pursuant to Federal Rule of Civil Procedure 38(b), Bubbles hereby demands a trial by jury

on all issues so triable.

Dated: August 25, 2021____ /s/ Gary E. Hood

Gary E. Hood (IL 6281580)
POLSINELLI PC
150 North Riverside Plaza, Suite 3000
Chicago, Illinois 60601
T: (312) 819-1900
F: (312) 819-1910
ghood@polsinelli.com

Pro Hac Vice Applications Forthcoming

Brian Anderson (IL 6280794)

John Snow (IL 6287443)
POLSINELLI PC
150 North Riverside Plaza, Suite 3000
Chicago, Illinois 60601
T: (312) 819-1900
F: (312) 819-1910
bnanderson@polsinelli.com
jsnow@polsinelli.com

Attorneys for Plaintiff

BUBBLES ICE CREAM PARLOR

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