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The Honorable United States District Court 1 THE HONORABLE __________________ 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 WESTERN DISTRICT OF WASHINGTON 12 13 AT SEATTLE 14 15 SPACE NEEDLE CORPORATION, a 16 Washington corporation, NO. ________________ 17 18 Plaintiff, COMPLAINT FOR TRADEMARK 19 INFRINGEMENT, TRADEMARK 20 v. DILUTION AND UNFAIR 21 COMPETITION 22 MCCAIN SNACK FOODS, a Wisconsin 23 24 corporation, JURY DEMAND 25 26 Defendant. 27 28 29 30 NATURE OF THE CASE 31 32 1. Plaintiff Space Needle Corporation ("SNC") seeks damages, injunctive relief 33 34 and attorneys' fees resulting from defendant McCain Snack Foods' ("Defendant") use of 35 36 SNC's Space Needle trademarks in a nationally-circulated advertisement for Defendant's 37 38 food products. 39 40 JURISDICTION AND VENUE 41 42 43 2. This Court has jurisdiction over the Lanham Act claims pursuant to 44 45 28 U.S.C. §§ 1331 (federal question) and 1338(a) (trademark claim) and over the State law 46 47 Perkins Coie LLP 1201 Third Avenue, Suite 4800 COMPLAINT (NO. C02-1923P) - 1 Seattle, Washington 98101-3099 [43643-0002/SL041600.054] Phone: (206) 583-8888 Fax: (206) 583-8500 1 claims pursuant to 28 U.S.C. §§ 1338(b) (related unfair competition claims) and 1367 2 3 (supplemental jurisdiction). 4 5 3. This Court has personal jurisdiction over Defendant. Defendant continuously 6 7 and systematically conducts business in and avails itself of the protection and benefits of the 8 9 laws of the state of Washington. The acts giving rise to the claims alleged in this Complaint 10 11 took place in part in Washington. Defendant also knew or reasonably should have known 12 13 that its conduct alleged in this Complaint would cause injury to SNC in Washington. 14 15 4. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c) 16 17 because a substantial part of the events giving rise to the claims herein occurred in this 18 19 District and Defendant is subject to personal jurisdiction with the claims asserted herein. 20 21 THE PARTIES 22 23 24 5. Plaintiff SNC is a Washington corporation with its principal place of business 25 26 in Seattle, Washington. 27 28 6. Defendant is a Wisconsin corporation with its principal offices in Appleton, 29 30 Wisconsin. Defendant is a subsidiary of McCain Foods USA, Inc., which itself is a 31 32 subsidiary of McCain Foods Limited, a Canadian entity. 33 34 35 PLAINTIFF AND ITS RIGHTS 36 37 7. The Space Needle has been privately owned since its construction in 1962. 38 39 SNC is a private company that has owned and operated the Space Needle since 1982. The 40 41 Space Needle is not public property and never has been public property. 42 43 8. SNC uses its distinctive trademark SPACE NEEDLE and the distinctive 44 45 image of the Space Needle (together, the "Space Needle Marks") to identify numerous 46 47 Perkins Coie LLP 1201 Third Avenue, Suite 4800 COMPLAINT (NO. C02-1923P) - 2 Seattle, Washington 98101-3099 [43643-0002/SL041600.054] Phone: (206) 583-8888 Fax: (206) 583-8500 1 products and services. An example of the image of the Space Needle used by SNC in 2 3 connection with goods and services follows: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 9. SNC offers a variety of entertainment services, including a very popular 34 35 upscale restaurant and conference and banquet services, and sells many goods, including 36 37 clothing, dishware, water and wine, under the Space Needle Marks. 38 39 10. SNC has spent substantial time, effort and money advertising and promoting 40 41 the goods and services under the Space Needle Marks, and, as a result of these efforts, such 42 43 goods and services are strongly associated with SNC and the Space Needle Marks. 44 45 46 47 Perkins Coie LLP 1201 Third Avenue, Suite 4800 COMPLAINT (NO. C02-1923P) - 3 Seattle, Washington 98101-3099 [43643-0002/SL041600.054] Phone: (206) 583-8888 Fax: (206) 583-8500 1 11. SNC has licensed the use of the Space Needle Marks, including the right to 2 3 use the image of the Space Needle, to a wide variety of companies, including Staples, Old 4 5 Navy, United Airlines and Boeing. 6 7 12. As a result of its promotional efforts, sales, publicity and licensing, the Space 8 9 Needle Marks have become well known and well regarded in connection with restaurant and 10 11 entertainment services. 12 13 13. Over one million people visit the Space Needle every year. Because many 14 15 visitors to Seattle come to the Space Needle, the Space Needle Marks enjoy recognition and 16 17 goodwill throughout the United States and in foreign countries. 18 19 14. In recognition of SNC's rights in the Space Needle Marks, the United States 20 21 Patent and Trademark Office has issued SNC numerous trademark registrations for the 22 23 Space Needle Marks, including Registration Nos. 2,771,413; 2,773,451; and 2,775,235. 24 25 Copies of these registrations are attached hereto as Exhibit 1. A table showing all SNC's 26 27 trademark registrations and applications for the Space Needle Marks is attached hereto as 28 29 Exhibit 2. 30 31 DEFENDANT'S UNLAWFUL CONDUCT 32 33 34 15. Defendant manufactures, distributes and sells food products, including 35 36 frozen, breaded and battered appetizers. 37 ® 38 16. Defendant placed a two-page, full-color advertisement for its Moore's 39 40 Cracked Black Pepper Battered Onion Rings and Ranch Breaded Onion Rings in the 41 42 November 15, 2003 issue of Restaurants and Institutions (the "Advertisement"), a nationally- 43 44 distributed magazine for the food service industry. A copy of the Advertisement is attached 45 46 hereto as Exhibit 3. 47 Perkins Coie LLP 1201 Third Avenue, Suite 4800 COMPLAINT (NO. C02-1923P) - 4 Seattle, Washington 98101-3099 [43643-0002/SL041600.054] Phone: (206) 583-8888 Fax: (206) 583-8500 1 17. The Advertisement features an adulterated photograph of the Space Needle 2 3 with the observation deck and restaurant replaced by a giant onion ring. The Advertisement 4 5 also prominently displays the slogan "Take it from your leader." 6 7 18. Defendant did not ask for permission, and has received no permission, from 8 9 SNC to use the Space Needle Marks in connection with its advertisement of food products. 10 11 19. SNC does not endorse Defendant's products, and Defendant's products are not 12 13 served at the Space Needle Restaurant. Defendant's use of the Space Needle Marks in the 14 15 Advertisement is likely to confuse a significant portion of the purchasing public by inducing 16 17 it to believe that Defendant's products and services originate with, are sponsored by, or are 18 19 otherwise associated with SNC or the food and entertainment services that SNC provides 20 21 under the Space Needle Marks. Defendant's use of the Space Needle Marks in the 22 23 Advertisement also disparages SNC and the Space Needle Marks by associating the Space 24 25 Needle Marks with goods and services that may be of lesser quality than those provided by 26 27 SNC under the Space Needle Marks. 28 29 20. Defendant's conduct has resulted in profits and unjust enrichment to 30 31 Defendant and has caused harm to SNC. 32 33 21. SNC contacted McCain Foods, through its counsel, requesting that it cease its 34 35 infringing activities and remedy the harm it has caused. Although McCain Foods stated that 36 37 it would no longer run the Advertisement, it has denied that SNC has enforceable rights and 38 39 otherwise refused to remedy the harm it has caused. 40 FIRST CLAIM FOR RELIEF 41 42 Trademark Infringement, 15 U.S.C. §§ 1114 & 1125(a) 43 44 22. SNC specifically realleges and incorporates paragraphs 1 through 21 as if 45 46 fully set forth herein. 47 Perkins Coie LLP 1201 Third Avenue, Suite 4800 COMPLAINT (NO. C02-1923P) - 5 Seattle, Washington 98101-3099 [43643-0002/SL041600.054] Phone: (206) 583-8888 Fax: (206) 583-8500 1 23. SNC owns numerous federal trademark registrations for the Space Needle 2 3 Marks. (See Exhibits 1 & 2.) These registrations are in full force and effect and are 4 5 enforceable. SNC also owns common law rights in the Space Needle Marks that date back 6 7 to 1962. 8 9 24. Defendant's actions constitute the use in interstate commerce of a false 10 11 designation of origin, false or misleading description of fact, or false or misleading 12 13 representations of fact that are likely to cause confusion or mistake, or to deceive as to the 14 15 affiliation, connection, or association of the goods and services with SNC, or as to the origin, 16 17 sponsorship, or approval of the goods and services provided by Defendant in violation of 18 19 Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). 20 21 25. Defendant's actions also constitute the use in interstate commerce of a 22 23 reproduction, counterfeit, copy, or colorable imitation of a registered trademark of SNC in 24 25 connection with the sale, offering for sale, distribution, or advertising of goods or services 26 27 on or in connection with which such use is likely to cause confusion or mistake, or to 28 29 deceive, in violation of Section 32 of the Lanham Act, 15 U.S.C.
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