Case 1:11-cv-03337-JBW -MDG Document 1

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Adam R. Bialek Scott M. Smedresman WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 E. 42nd Street New York, NY 10017 Telephone: 212-490-3000 Attorneys for Plaintiff BRAVO KENNEL, LLC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

IN CLERK'S OFFICF us. DISit<ICICOURIE oN y

FtLEf..l

* JUL 12 2011 *

BROOKLYN OFFICE

----------------------------,
BRAVO KENNEL, LLC, Plaintiff,

cv 11Civil Action No. :

3337
WE\NSl"E\N, J.
TRI~o ~ . M.J. .

COMPLAINT
-against-

DEMAND FOR JURY

JOHN PEPONAKIS and JOHN PEPONAKIS dlb/a AMERICAN BRED KENNEL. Defendants.

Plaintiff, Bravo Kennel, LLC, (hereinafter referred to as "Plaintiff' or "Bravo Kennel") by their attorneys, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, complaining of the Defendants, John Peponakis and John Peponakis d/b/a American Bred Kennel (hereinafter collectively referred to as "Defendants" or "Peponakis") allege and say as follows:

PARTIES
1. Plaintiff Bravo Kennel is a New York corporation, having its principal place of

business at 159 A 23rd Street, Brooklyn, NY 11232. 2. Upon information and belief, John Peponakis is an individual resident of the State of

Florida, residing at 10084 Hernando Ridge Rd., Brooksville, FL 34613.

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3.

Upon information and belief, John Peponakis is doing business as American Bred

Kennel, with its principal place of business at 10084 Hernando Ridge Rd., Brooksville, FL 34613. 4. Upon information and belief, Defendants John Peponakis and John Peponakis d/b/a

American Bred Kennel are owned and operated by the same individual, such that the entities are alter egos for each other. All allegations made against John Peponakis and/or John Peponakis d/b/a American Bred Kennel are made as and against both.
JURISDICTION AND VENUE

5.

This is a civil action arising from Defendants' misuse of Plaintiff's trademark and

false advertising, and Defendants' breach of contract. The claims alleged in this Complaint arise under the Lanham Act, 15 U.S.C. 1051, et seq. and under New York State Law. 6. This Court has jurisdiction over the subject matter of this action pursuant to 15 U.S.C.

1121 and 28 U.S.C. 1331 and 1338.

7.

This Court has supplemental jurisdiction over Plaintiff's state law claims pursuant to

28 U.S.C. 1367(a). 8. 9. Venue is proper in New York pursuant to 28 U.S.C. 139l(b). This Court has personal jurisdiction over Defendants because Defendants have

conducted business within the State of New York, have committed the tortious acts hereinafter described within or without the Eastern District of New York with the knowledge and intent that those acts would injure Plaintiff within the Eastern District of New York, and upon information and belief, Defendants have substantial and ongoing contact with the Eastern District of New York.

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FACTUAL BACKGROUND
10. Bravo Kennel has been in the business of breeding and selling dogs since at least as

early as March of2007. 11. Dogs bred by Bravo Kennel are ofthe highest quality, and are frequently used as

show dogs in national competitions. 12. As a result of their quality and reputation, dogs bred by Bravo Kennel are sought after

as show dogs and for use in breeding other dogs. 13. Since at least as early as March of 2007, and uninterrupted through the present time,

Bravo Kennel has used the trademarks BRAYO'S and BRAVO KENNEL (the "Marks") in interstate commerce throughout the United States, including in this District, as identifiers of its goods and services. 14. Bravo Kennel is the owner of a federal trademark registration for the mark BRAVO

KENNEL, registered under Reg. No. 3849179 in connection with dog breeding services, among other goods and services. This registration is valid and subsisting. 15. Bravo Kennel has widely advertised its goods and services under the Marks, and has

spent considerable sums in developing their business and creating a customer base. Bravo Kennel has accrued significant, valuable and protectable goodwill in its Marks. Bravo Kennel's Marks are identifiers of source for Bravo Kennel's goods and services, and are recognized by the public as designating Bravo Kennel's goods and services. 16. dogs. 17. Upon information and belief, Peponakis advertises its services and the dogs it has for Upon information and belief, Peponakis is in the business of breeding and selling

sale over the internet. 18.

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Peponakis and Bravo Kennel are competitors in the breeding industry.

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19.

In or around September or 2006, during the course of Bravo Kennel's business, a dog

named Munstro was born to Bravo Kennel. 20. Although in fine health, Munstro had a birth defect in the form of a clubbed tail

which made him unsuitable for show or sire purposes. In order to maintain the quality of its breeding and reputation, Bravo Kennel chose not to use Munstro as a sire for future litters or otherwise hold out Munstro as being the product of Bravo Kennel. 21. In or around November of2006, Peponakis and Beau Hadden, a principal in Bravo

Kennel, had a discussion regarding how Peponakis has recently lost a beloved pet dog. 22. As a result, on or about November of 2006, during an in-person meeting at Bravo

Kennel's place ofbusiness in New York, Mr. Hadden offered to give Munstro to Peponakis for use as a companion pet, but only if Peponakis agreed not to breed Munstro or otherwise designate Munstro as originating from Bravo Kennel. 23. Peponakis agreed to the conditions of this transfer and accepted Munstro. Bravo

Kennel transferred Munstro to Peponakis at Bravo Kennel's place of business in New York, where Peponakis picked-up Munstro. 24. Despite the terms of this agreement, Peponakis has used Munstro as a breeding dog,

and has held out Munstro as originating from Bravo Kennel, by referring to the dog as "Bravo's Munstro." 25. Upon information and belief, in the course of advertising and selling these dogs,

Peponakis has used the mark BRAVO KENNEL and/or BRAYO'S. 26. Further, upon information and belief, Peponakis has used the Marks in connection

with the sale of dogs sired by Munstro or otherwise including Munstro in their lineage. 27. Peponakis has not been granted any right to use the Marks.

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28.

At all times discussed in this Complaint, Peponakis has been fully aware of Bravo

Kennel's use and rights in its Marks, as used in connection with dog breeding and sales services. 29. After the commencement ofPeponakis' infringing conduct, Bravo Kennel has sent

Peponakis letters identifying Bravo Kennels' rights and demanding that Peponakis cease and desist from infringing upon them. Peponakis ignored these letters and has continued his wrongful conduct. 30. Bravo Kennel's Marks were used in commerce and have been protectable in

connection with dog breeding and sales services prior to any bona fide use in commerce of the Marks by Peponakis. 31. Peponakis' actions have been deliberate, willful and intentional, conducted with the

intent of trading on Bravo Kennel's reputation and goodwill. 32. Peponakis' unlawful actions are having, and will continue to have, a substantial and

adverse effect on United States commerce. 33. Peponakis' wrongful acts and/or willful infringements, for which Bravo Kennel has

no adequate remedy at law, have caused and will continue to cause irreparable harm to Bravo Kennel unless permanently enjoined. 34. 35. Peponakis has profited from his unlawful actions. Peponakis has caused Bravo Kennel monetary damage in amounts presently unknown

but to be determined at trial.

FIRST CLAIM FOR RELIEF Federal Trademark Infringement Lanham Act 32, 15 U.S.C. 1114
36. Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained in

Paragraphs 1 though 35 hereof as if fully set forth herein at length.

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37.

Peponakis' uses of the BRAVO KENNEL mark have caused and/or are likely to

cause confusion or mistake, or to deceive regarding the source, sponsorship and/or affiliation of the goods and services offered by Peponakis. 38. Peponakis' wrongful acts and/or willful infringements, for which Bravo Kennel has

no adequate remedy at Jaw, have caused, and will continue to cause damages and irreparable harm to Bravo Kennel unless permanently enjoined. 39. Peponakis is profiting and will continue to profit from its unlawful actions.

Peponakis' actions are causing and will continue to cause Bravo Kennel monetary damage in amounts presently unknown but to be determined at trial. 40. Peponakis is liable for trademark infringement, in violation of Section 32 of the

Lanham Act, 15 U.S.C. 1114. SECOND CLAIM FOR RELIEF Federal False Designation of Origin Lanham Act 43, 15 U.S.C. 1125 41. Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained in

Paragraphs 1 though 40 hereof as if fully set forth herein at length. 42. Peponakis' uses of the Marks have caused and/or are likely to cause confusion or

mistake, or to deceive regarding the source, sponsorship and/or affiliation of the goods and services offered by Peponakis. 43. Peponakis' wrongful acts and/or willful infringements have caused, and will continue

to cause, irreparable harm to Bravo Kennel unless permanently enjoined. 44. Peponakis is profiting and will continue to profit from its unlawful actions.

Peponakis' actions are causing and will continue to cause Bravo Kennel monetary damage in amounts presently unknown but to be determined at trial.

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45.

Peponakis is liable for trademark infringement, in violation of Section 43 of the

Lanham Act, 15 U.S.C. 1125.

THIRD CLAIM FOR RELIEF Breach of Contract

46.

Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained in

Paragraphs 1 though 45 hereof as if fully set forth herein at length. 47. Bravo Kennel and Peponakis formed a contract whereby in exchange for transferring

ownership of Munstro, Peponakis agreed not to sire or breed Munstro or to hold out Munstro as originating from or being affiliated in any way v.ith Bravo Kennel. 48. Bravo Kennel fully performed its obligations under the contract by transferring

Munstro to Peponakis. 49. Peponakis breached the terms of this agreement by using Munstro to sire breeds and

holding out Munstro and his lineage under the Marks. 50. As a result, Peponakis is liable for breach of contract in violation of the laws of the

State ofNew York.

FOURTH CLAIM FOR RELIEF State Unfair Competition

51.

Bravo Kennel repeats, reiterates and re-alleges each and every allegation contained in

Paragraphs 1 though 50 hereof as if fully set forth herein at length. 52. Bravo Kennel, at great expense and effort, has acquired a property interest in its

name, reputation and goodv.ill in the State of New York under the Marks in connection v.ith its goods and services. 53. Peponakis' conduct wrongfully profits from the expense, effort and reputation of

Bravo Kennel within the State ofNew York.

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54.

Peponakis' wrongful acts and/or willful infringements have caused, and will continue

to cause, irreparable harm to Bravo Kennel unless permanently enjoined. 55. Peponakis is profiting and will continue to profit from its unlawful actions.

Peponakis' actions are causing and will continue to cause Bravo Kennel monetary damage in amounts presently unknown but to be determined at trial. 56. Peponakis' conduct constitutes unfair competition and trademark infringement in

violation of New York State law.

FIFTH CLAIM FOR RELIEF State Dilution, Injury to Business Goodwill

57.

Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained in

Paragraphs I though 56 hereof as if fully set forth herein at length. 58. Bravo Kennel's Marks are distinctive within the meaning of New York General

Business Law, Section 360-1. 59. Peponakis' conduct has caused and continues to cause a likelihood of injury to the

goodwill and business reputation of Bravo Kennel and created a likelihood of dilution of the distinctive quality of Bravo Kennel's Marks. 60. Peponakis' wrongful acts and/or willful infringements have caused, and will continue

to cause, irreparable harm to Bravo Kennel unless permanently enjoined.

61.

Peponakis is profiting and will continue to profit from its unlawful actions.

Peponakis' actions are causing and will continue to cause Bravo Kennel monetary damage in amounts presently unknown but to be determined at trial. 62. Peponakis' conduct constitutes dilution and injury to business reputation in violation

ofNew York State law.

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SIXTH CLAIM FOR RELIEF Federal False Advertising Lanham Act 43, 15 U.S.C. 1125
63. Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained in

Paragraphs 1 though 62 hereof as if fully set forth herein at length. 64. The origin, ancestry and breeder of a dog are material to a consumer's decision

whether to purchase a certain dog. 65. Referring to a dog as "Bravo's Munstro" or descending from "Bravo's Munstro" is a

statement of fact. 66. Peponakis' advertisements for dogs descended from "Bravo's Munstro" misrepresent

the nature, character or qualities of Peponakis' and Bravo Kennel's goods and services. 67. Peponakis' wrongful acts and/or willful false advertisements have caused, and will

continue to cause, irreparable harm to Bravo Kennel unless permanently enjoined.

68.

Peponakis is profiting and will continue to profit from its unlawful actions.

Peponakis' actions are causing and will continue to cause Bravo Kennel monetary damage in amounts presently unknown but to be determined at trial.

69.

Peponakis' conduct constitutes false advertising in violation of Section 43 of the

Lanham Act, 15 U.S.C. 1125.

SEVENTH CLAIM FOR RELIEF Trade Libel

70. Bravo Kennel repeats, reiterates andre-alleges each and every allegation contained in

Paragraphs 1 though 69 hereof as if fully set forth herein at length. 71. Upon information and belief, Peponakis has falsely held out its dogs as being

"Bravo's Munstro" or being a descendent from "Bravo's Munstro" for the purpose of interfering with Bravo Kennel's business and business relationships.

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72.

Upon information and belief, Peponakis's false statements have caused others not to

do business with Bravo Kennel. 73. Peponakis' wrongful acts and/or willful actions have caused, and will continue to

cause, irreparable harm to Bravo Kennel unless permanently enjoined. 74. Peponakis is profiting and will continue to profit from its unlawful actions.

Peponakis' actions are causing and will continue to cause Bravo Kennel monetary damage in amounts presently unknown but to be determined at trial. 75. York.
PRAYER FOR RELIEF

Peponakis' conduct constitutes trade libel in violation of the laws of the State of New

WHEREFORE, the Bravo Kennel respectfully requests that it be awarded judgment:

A.

In favor of Plaintiff and against Defendants on all of Plaintiffs claims; Permanently enjoining and restraining Defendants, their agents, servants, partners,

B.

employees, attorneys and all others in active concert or participation with them, from offering or rendering breeding services through the use of the Marks, or otherwise holding out or designating Munstro or any of its descendants under the Marks, or any confusingly similar variant thereof, in any way; C. Ordering Defendants, pursuant to 15 U.S.C. 1116, to serve on Bravo Kennel

within thirty (30) days after service on Defendants of preliminary or permanent injunctive orders, a report in writing, under oath, setting forth in detail the manner and form in which Defendants have complied with the injunction; D. Requiring Defendants to account for, and pay over to Plaintiff, Defendants'

profits and all damages sustained by Plaintiff;

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E.

Increasing the amount of damages and/or profits awarded to Plaintiff as

appropriate pursuant to 15 U.S.C. 1117(a); F. Awarding Plaintiff its reasonable attorney fees, costs, expenses, and interest

pursuant to 15 U.S.C. 1117(a) and other applicable law; G. Awarding Plaintiff such punitive damages for Defendants' willful and intentional

acts of unfair competition and infringement of Plaintiff's rights that the Court shall deem just and proper; and, H. Granting such other and further relief as the Court may deem just and proper.

DEMAND FOR JURY TRIAL

A.
Dated:

Bravo Kennel demands a trial by jury of all issues so triable.

New York, New York July 12, 2011 Yours, etc. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

By: Adam R. Bialek Scott M. Smedresman WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 150 E. 42nd Street New York, NY 10017 Attorneys for Plaintiff BRAVO KENNEL, LLC Our File No. 12807.00002

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