Case 1:24-cv-00764-JRS-TAB Document 1 Filed 05/03/24 Page 1 of 12 PageID #: 1

UNITED STATES DISTRICT COURT

for the
Southern District of Indiana

CHARLOTTA PEUGH, an Individual, )

and BCC Concessions, LLC d/b/a )
TWISTED TATER, an Indiana ) Case No. 1:24-cv-764
Limited Liability Company, )
)
Plaintiffs, )
)
v. )
)
)
ADAM J. NADLER, JR., an Individual, and )
TWISTED TATERS FOOD TRUCK )
AND MORE, an unincorporated Indiana )
business, and DOES 1-10, )
)
Defendants. )

COMPLAINT

Come now Charlotta Peugh (“Peugh”) and BCC Concessions, LLC d/b/a Twisted Tater

(“BCC”) and for their Complaint against Adam J. Nadler, Jr. (“Nadler”) Twisted Taters Food

Truck and More (“Twisted Taters”), state:

THE PARTIES

1. Plaintiff Peugh, an individual, is, and at all times relevant to this Complaint, has

been a resident of Dillsboro, Dearborn County, Indiana.

2. Plaintiff BCC is a limited liability company organized and existing under the laws

of the State of Indiana and having a principal place of business at 11979 Old US Hwy 50, Dillsboro,

Dearborn County, Indiana, 47018.

3. Upon information and belief, Defendant Nadler is and at all times relevant has been

a resident of 17037 W Noblett Rd, Hagerstown, Wayne County, Indiana, 47346.

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4. Upon information and belief, Defendant Twisted Taters is an unregistered business,

having a principal place of business in Hagerstown, Wayne County, Indiana.

5. Upon information and belief, Defendants transacted business with respect to the

matters complained of herein within the State of Indiana, and, upon information and belief,

continue to perform business within the State of Indiana.

JURISDICTION AND VENUE

6. The Court has original subject matter jurisdiction over federal claims asserted

herein as a federal question arises from the claims herein alleging violations by Defendant of the

trademark laws of the United States, 15 U.S.C.A. § 1051 et seq. Original jurisdiction is conferred

upon this Court by the provisions of the Lanham Trademark Act, 15 U.S.C.A. § 1121 and 28

U.S.C.A. 1338 et seq. This Court also has supplemental jurisdiction over the claims asserted under

the laws of the State of Indiana under 28 U.S.C.A. § 1367.

7. The Court has personal jurisdiction over Defendant Twisted Taters as, upon

information and belief, it is headquartered in Wayne County, Indiana and operates its business in

the State of Indiana.

8. The Court has personal jurisdiction over Defendant Nadler, who is a resident of

Wayne County, State of Indiana, and regularly operates as Twisted Taters within the State.

9. Venue is proper in this district because (a) Defendant Nadler d/b/a Twisted Taters

resides in Wayne County, Indiana, and (b) as Defendants’ use of The Mark, the infringement of

which Defendants has given rise to this action, has substantially occurred within the Southern

District of Indiana, including, upon information and belief, by virtue of Twisted Tater’s food

truck’s primary staging within Wayne County, Indiana, and, as of March 28, 2024, evidence shows

service areas and referenced locations visited or intended to be visited by Twisted Tater’s food

truck including Liberty, IN (in Union County), Connersville, IN and Fayette Co. Free Fair (in
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Fayette County), Richmond and Centerville and the Wayne County 4H event (each in Wayne

County), Brookville, IN (in Franklin County), and Modoc Fall Festival and Winchester, IN (each

in Randolph County) each of which county is within the jurisdiction of the Federal Courts of the

Southern District of Indiana. Venue is therefore proper within the Southern District of Indiana

under 28 U.S.C.A. § 1391(b)(1) and (b)(2)).

FACTS COMMON TO ALL COUNTS

10. On March 16, 2012, Peugh first used the Mark “Twisted Tater, “We Put a Spin On

It”” in commerce in Indiana.

11. On August 31, 2016, Peugh registered Indiana Trademark I.D. No. 2016-0462 for

“TWISTED TATER “WE PUT A SPIN ON IT””, in Class 30-Staple Foods (“The Mark”).

12. Peugh has solely owned, renewed, and maintained, and not cancelled or revoked,

the active registration of The Mark from August 31, 2016, through present.

13. On September 28, 2017, Peugh registered BCC as a Limited Liability Company

with the Indiana Secretary of State.

14. Peugh is the CEO, sole Member of, and sole owner of BCC.

15. Peugh has authorized BCC to (a) utilize The Mark, nationally, in commerce, for

commercial purposes, including in conjunction with its sale of staple foods, and, in particular,

without limitation, spiral cut potatoes placed on a skewer and deep fried, and (b) protect The Mark

from infringement, dilution, or misappropriation, each since BCC’s formation.

16. Peugh has not licensed or otherwise authorized the use of The Mark to any person

or entity other than BCC.

17. Since September 28, 2017, BCC has operated a mobile food sale business involving

the sale of spiral-cut potatoes placed on a skewer and deep-fried out of a food truck trailer branded

as “Twisted Tater “We Put a Spin On It.” BCC has derived substantial income from this business.
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18. Prior to forming BCC, Peugh operated a food sale business involving the sale of

spiral cut potatoes placed on a skewer and deep friend, first, from March 16, 2012, out of a tent

with a Twisted Tater banner, and later, beginning in May 2013, out of a food truck trailer branded

as “Twisted Tater “We Put A Spin On It.’”. Peugh derived substantial income from such business.

19. From March 16, 2012, through September 27, 2017, in her personal capacity, Peugh

utilized The Mark to identify her business of selling spiral-cut potatoes placed on a skewer and

deep fried, in conjunction with its provision of other food and beverage products and services,

first, via a tent and banner, and later, since May 2013, via a food truck trailer.

20. Since September 28, 2017, BCC, as an authorized user of The Mark, has utilized

The Mark to identify its business of selling spiral-cut potatoes placed on a skewer and deep-fried,

in conjunction with its provision of other food and beverage products and services, including via

a food truck trailer.

21. On March 29, 2024, BCC applied for a federal trademark for the mark “TWISTED

TATER” in Class 29, “Fried Potatoes,” and Class 043, “Providing of food and drink via a mobile

truck.”

22. On April 1, 2024, BCC, with permission from Peugh, registered a second Indiana

Trademark, “TWISTED TATER,” identifying the first use as March 16, 2012, in Class 43,

“PROVIDING OF FOOD AND DRINK VIA A MOBILE TRUCK.”

23. Upon information and belief, Nadler operates a food truck business, Twisted Taters,

which was marketed on Facebook as of March 28, 2024, as “Twisted Taters Food Truck (“Gourmet

Ribbon Fryz and more!!”).

24. As of March 28, 2024, Twisted Taters’ Facebook page lists its business contact as

Ajspitty@gmail.com

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25. Upon information and belief, AJspitty@gmail.com is an email address utilized by

Nadler.

26. Upon information and belief, since at least April 2021, Nadler, doing business as

Twisted Taters, has marketed his mobile restaurant business, with an emphasis on fried potatoes,

as Twisted Taters.

27. Upon information and belief, since July 2021, Nadler, doing business as Twisted

Taters, has operated a food truck wrapped and prominently branded as “GOURMET RIBBON

FRYZ” in smaller font and, in larger font, “TWISTED TATERS” marketing and offering for sale

fried potato food products and other food and beverages at various locations in the State of Indiana.

28. Upon information and belief, between April 2021 and September 2021, the

wrapping for Nadler’s food truck, doing business as Twisted Taters, was designed and applied to

a food truck utilized by Nadler for the business of Twisted Taters.

29. On October 2, 2023, counsel for Plaintiffs delivered to Defendants, via email to the

AJspitty@gmail.com email address, a cease & desist letter providing Defendants of notice of

Plaintiffs’ utilized trademark, advising of Plaintiffs’ awareness and observation of Defendants’

infringement of Plaintiffs’ trademark, and demanding that Defendants immediately cease all use

of The Mark.

30. Following receipt of the October 2, 2023, cease & desist letter from Plaintiffs, in

November 2023, Nadler communicated that he (a) had purchased the Twisted Taters food truck

from a third party and kept the name, and (b) that he would consult with an attorney and rebrand.

31. Nadler, doing business as Twisted Taters, has not rebranded, has not ceased using

the name Twisted Taters, and has not further communicated with Plaintiffs.

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32. Upon information and belief, Nadler did not purchase a pre-branded Twisted Taters

food Truck from a third party. Instead, as shown by Twisted Taters’ Facebook page, Nadler

participated in the branding and wrapping of the Twisted Taters branded food truck, himself.

33. Furthermore, instead of rebranding, as he had communicated to Plaintiffs, Nadler,

doing business as Twisted Taters, through January and February 2024, willfully continued to

market and solicit business on behalf of Twisted Taters via its Facebook page by soliciting future

business in relation to the April 8, 2024, Solar Eclipse.

34. Nadler, doing business as Twisted Taters, as of March 28, 2024, still willfully and

presently markets its service, via Facebook, including for areas of service including Liberty,

Connersville, Richmond, Centerville, Portland, and Brookville, Indiana.

35. Twisted Taters’ Facebook page, as of March 28, 2024, references Twisted Taters’

business in, visits to, and or planned business at Jay County Indiana Fair Grounds, Wayne County

IN 4 H, Richmond, IN, Modoc, IN Fall Festival, Fayette County IN Free Fair, Mardi Gras in

Winchester, IN, Darke County, OH fair, and Liberty, IN.

COUNT ONE

Lanham Act 15 U.S.C.A. § 1125(a)

36. Plaintiffs reallege the allegations of Paragraphs 1 through 35 of this Complaint as

if fully set forth herein.

37. The Marks, in use by Plaintiffs since 2012, are recognized and highly regarded by

members of the public and are valuable to Plaintiffs.

38. Defendants’ use of the term “Twisted Taters” with respect to its business supplying

similar and competing potato-derived products utilized in a similar and competing food truck

business within and outside the State of Indiana is likely to cause confusion or mistake or to

deceive as to the affiliation, connection, or association of either or both Plaintiffs with Defendants,
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or as to the origin, sponsorship, or approval of either Defendants’ goods, services, or commercial

activities.

39. Defendants’ use of the term “Twisted Taters” has damaged Plaintiffs and continues

to damage Plaintiffs and Plaintiffs have suffered and continue to suffer lost profits.

COUNT TWO

Indiana Statutory Trademark Infringement (Ind. Code § 24-2-1-13)

40. Plaintiffs reallege the allegations of Paragraphs 1 through 39 of this Complaint as

if fully set forth herein.

41. Defendants have used, without the consent of Peugh or BCC, a colorable imitation

of The Mark by their use of the term “Twisted Taters” in connection with their sale, offering for

sale, and advertising of goods and services in Indiana.

42. Defendants have, without the consent of Peugh or BCC, colorably imitated The

Mark in signs and advertisements and/or other prints, wrappers, packages, or receptacles, each

intended to be used in connection with the sale of goods and services in Indiana.

43. Defendants have, with the intent to cause deception, confusion, or mistake,

including during the time period following Defendants’ receipt of notice of the existence of

Peugh’s registration of The Mark, continued to engage in use of a colorable imitation of The Mark

in Indiana.

44. As a result of the foregoing, Plaintiffs have and continue to be damaged and lost

profits.

45. Defendants remain in possession of items bearing a colorable imitation of The Mark

that should be delivered to an officer of the Court or Plaintiffs to be destroyed.

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COUNT THREE

Common Law Trademark Infringement

46. Plaintiffs reallege the allegations of Paragraphs 1 through 45 of this Complaint as

if fully set forth herein.

47. Peugh owns and enjoys valid, enforceable, and fully subsisting common law

trademark rights in The Mark.

48. Defendants had both actual and constructive knowledge of Peugh’s common law

trademark rights.

49. Defendants’ advertising, sale, and offering for sale of products and services in

conjunction with the “Twisted Taters” branding utilized by Defendants has caused a likelihood of

confusion or misunderstanding as to the source, origin, sponsorship, or approval of such products

and services, and constitutes infringements of The Marks under common law and the taking of

Plaintiffs’ respective rights in violation of common law trademark principles.

50. Plaintiffs delivered notice of such infringement to Defendants, via Nadler, in

October 2023 (attached as Exhibit “A”).

51. Defendants, via Nadler, acknowledged receipt of such notice, however, Defendants

have nonetheless failed to refrain from discontinuing their infringement of The Mark, and continue

to use The Mark in marketing, including on Twisted Taters’ Facebook page.

52. Unless restrained and enjoined by this Court, Defendants will continue to persist in

their advertising, sale, and offering for sale of the infringing products and services, causing

Plaintiffs irreparable injury.

53. Defendants’ actions constitute knowing, deliberate, and willful infringement of The

Mark.

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54. As a result of the foregoing, Plaintiffs have and continue to be damaged and suffer

and continue to suffer lost profits.

55. Due to Defendants’ infringement, Plaintiffs have suffered damages, as well as the

continuing loss of goodwill and reputation established by them in The Mark. Plaintiffs will

continue to suffer harm unless the Defendants are enjoined from using Twisted Taters and any

other colorable imitation of The Mark. Such damages have been suffered in an amount to be proven

at trial, but at least an amount equal to the profits that Defendants have gained since using the

Twisted Taters name without authorization.

COUNT FOUR

UNFAIR USE OF TRADE NAME, UNFAIR COMPETITION

56. Plaintiffs reallege the allegations of Paragraphs 1 through 55 of this Complaint as

if fully set forth herein.

57. Plaintiff Peugh used the trade name “Twisted Tater” in her sole proprietorship from

March 16, 2012, through her founding of the limited liability company BCC on September 28,

2017, and has derived valuable goodwill, reputation, and business as a result.

58. Plaintiff BCC has used the trade name “Twisted Tater” since its founding

September 28, 2017, and has derived valuable goodwill, a reputation, and business as a result.

59. Defendants have used, without the consent of Plaintiffs, an imitation of the Twisted

Tater name by virtue of its use of the trade name “Twisted Taters” with respect to their business

of supplying competing food and beverage products since at least April 2021.

60. Defendants have continued use of the trade name “Twisted Taters” subsequent to

receipt of a cease-and-desist letter delivered to Defendants, via Nadler, in October 2023.

61. Defendants have used the trade name “Twisted Taters” in conjunction with their

use of a food truck, primarily in Indiana, selling potato-derived products, in direct competition
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with Plaintiffs’ use of their trade name of “Twisted Tater” using a food truck trailer in Indiana

selling potato derived products.

62. As a result of Defendants’ unfair use of trade name and unfair competition,

consumer confusion as to the source or sponsorship of the products and services offered by

Defendants, and Plaintiffs, is likely.

63. Defendants’ use of Plaintiffs’ trade name is done with the intent to deceive the

public and/or impersonate Defendant’s business, and thereby deprive the Plaintiffs of property,

including their revenues and profit.

64. As a result of Defendants’ deceptive conduct, Plaintiffs have suffered damages in

an amount to be proven at trial.

COUNT FIVE

TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE

65. Plaintiffs reallege the allegations of Paragraphs 1 through 64 of this Complaint as

if fully set forth herein.

66. Defendants have caused third persons to refrain from entering prospective contracts

with Plaintiff BCC by virtue of Defendants’ wrongful use of a colorable imitation of The Mark.

67. Defendants had constructive knowledge, or actual knowledge of, Plaintiffs actual

or prospective contracts with consumers and business venues seeking to host BCC’s food truck.

68. Defendants have intentionally induced third persons to refrain from contracting

with Plaintiffs by virtue of Defendants’ wrongful use of a colorable imitation of The Mark.

69. Defendants maintain no legal justification for tortiously interfering with Plaintiffs’

economic advantage.

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70. Defendants have caused, or may continue to cause, third parties to refuse to enter

contracts with Plaintiff BCC by virtue of Defendants’ wrongful use of a colorable imitation of The

Mark.

71. Plaintiffs have, and may suffer additional, damages by virtue of Defendants’

tortious interference with prospective economic advantage.

COUNT SIX

Cybersquatting under the Lanham Act

72. Plaintiffs reallege the allegations of Paragraphs 1 through 71 of this Complaint as

if fully set forth herein.

73. The Defendants’ use of the social media handle “TwistedTatersFoodTruck” on

Facebook is confusingly similar to The Mark, incorporating Peugh’s distinct Mark.

74. Defendants used, and continue to use, The Mark online to create such confusion.

76. 75. Defendants have a bad faith intent to profit from The Mark by attempting to

confuse the public and direct consumers to its business rather than Plaintiffs’.

77. Defendants’ use of The Mark online has damaged Plaintiffs in an amount to be

determined at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs demand judgment against Defendants as follows:

78. Finding that Defendants have violated The Lanham Act, Ind. Code § 24-2-1-13 and

the various common law counts asserted.

79. Granting an injunction preliminarily and permanently restraining and enjoining

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

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

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(a) using “Twisted Taters” in connection with any food truck service or staple

food product, including, without limitation, prepared potato products.

(b) engaging in any other activity that would infringe on Plaintiffs’ rights,

80. Awarding Plaintiffs all profits gained by Defendants during Defendants’ use of the

term “Twisted Taters.”

81. Awarding Plaintiffs damages for injury to their business, reputation, and goodwill,

as well as lost profits.

82. Awarding Plaintiffs their costs and attorney's fees and investigatory fees and

expenses to the full extent provided for by applicable law.

83. Requiring Defendants to remove “Twisted Taters” from all food trucks, product

packaging, advertisement campaigns, websites, social media, décor, signage, and online ordering

platforms.

84. Awarding Plaintiffs prejudgment interest on any monetary award made part of the

judgment against Defendants.

85. Awarding Plaintiffs such additional and further relief as the Court deems just and

proper.

REQUEST FOR JURY TRIAL

86. Pursuant to the Federal Rules of Civil Procedure, Rule 38, Plaintiffs hereby trial by

jury as to all issues in the Complaint.

Dated: May 3, 2024 KATIE CHARLESTON LAW, PC

/s/ Katie Charleston

Katie M. Charleston, No. 35139-29
1905 S. New Market Street, Suite 169
Carmel, IN 46032
E: katie@katiecharlestonlaw.com
PH: 317-663-9190
FAX: 317- 279-6258
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