Case 3:15-cv-00687-L Document 1 Filed 03/02/15

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IN THE UNITED STATE DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
MR. GATTIS, LP,
Plaintiff,
v.
MR. GS PIZZA BUFFET,
a sole proprietorship, or a
partnership or corporation
of unknown provenance, and
PORFIRIO MARTINEZ,
an Individual,
Defendants.

CIVIL ACTION NO. ______________

PLAINTIFFS ORIGINAL COMPLAINT

COMES NOW Plaintiff Mr. Gattis, by and through the undersigned counsel, and files
this complaint against Defendants Mr. Gs Pizza Buffet and Porfirio Martinez and alleges the
following:
NATURE OF THE ACTION
1.

This is an action for trademark infringement, trademark dilution, and unfair

competition under the United States Trademark (Lanham) Act 15 U.S.C. 1051, et seq.;
trademark dilution under the Texas Business and Commerce Code 16.103; and trademark
infringement, unfair competition, and unjust enrichment under Texas common law.
2.

Plaintiff Mr. Gattis has invested significantly in its business as well as its

branding, and enjoys widespread consumer success. This lawsuit is brought to stop Defendants
infringement of valuable intellectual property rights, including trademarks relating to Plaintiffs
business and its restaurants, and from passing off Defendants operations as those of Plaintiff,
including engaging in activities likely to cause confusion, or to cause mistake, or to deceive as to
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the affiliation, connection, or association of such person with another person, or as to the origin,
sponsorship, or approval of his or her goods, services, or commercial activities by another
person.
3.

Defendants Mr. Gs Pizza Buffet business operations, as well as the MR. GS

moniker, are nearly an exact copy of Plaintiffs business operations, in some regards identical or
confusingly similar to Plaintiffs trademarks, and constitute an apparent intentional effort to
imitate and/or cause confusion with respect to the successful business and trademarks of
Plaintiff.
4.

Defendants infringement of Plaintiffs intellectual property rights harms Plaintiff,

as well as Plaintiffs customers who may be confused and deceived by Defendants business
and/or Defendants unauthorized reproduction and/or imitation of Plaintiffs trademarks, both
federally registered and at common law.
5.

Plaintiff respectfully seeks intervention of this Court to stop Defendants from

continuing their present activities and for monetary damages.

THE PARTIES
6.

Plaintiff re-alleges and incorporates by reference the foregoing allegations as

though fully set forth herein.

7.

Mr. Gattis, LP (hereafter Plaintiff or Mr. Gattis) is a Texas limited

partnership having a principal place of business at 5912 Balcones Drive, Suite 200, Austin, TX
78731-4202. Plaintiff is engaged in the business of, among other things, restaurant services.
8.

On information and belief, Defendant Mr. Gs Pizza Buffet is a sole

proprietorship operating its business at 2115 E. Belt Line Road, Richardson, TX 75081, Dallas

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County.

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Mr. Gs is engaged in the business of, among other things, restaurant services.

Alternatively, Mr. Gs is a partnership or corporation of unknown provenance.

9.

On information and belief, Defendant Porfirio Martinez is the sole manager

and/or owner of Mr. Gs Pizza Buffet with a principal place of business at 2115 E. Belt Line
Road, Richardson, TX 75081, Dallas County.
10.

On information and belief, Defendants are involved with the website located at

http://www.mrgpizzabuffet.com/.
JURISDICTION AND VENUE
11.

Plaintiff re-alleges and incorporates by reference the foregoing allegations as

though fully set forth herein.

12.

The Court has subject matter jurisdiction under 15 U.S.C. 1121 and 28 U.S.C.

1331, and 1338, and has supplemental jurisdiction over the state law claims under 28 U.S.C.
1367(a).
13.

This Court has personal jurisdiction over Defendants because Defendants are

doing business within the State of Texas and the Northern District of Texas. The acts complained
of herein occurred in the State of Texas and the Northern District of Texas.
14.

On information and belief, Defendants have willfully and voluntarily committed

the acts complained of herein in the State of Texas and the Northern District of Texas.
15.

Venue is proper under 28 U.S.C. 1391.

FACTUAL ALLEGATIONS

A. MR. GATTIS TRADEMARKS

16.

Plaintiff re-alleges and incorporates by reference the foregoing allegations as

though fully set forth herein.

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17.

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For the past 45 years, Plaintiff and its predecessors in interest have operated,

licensed and franchised a business consisting of family-oriented restaurants and entertainment

facilities under the federal registered trademarks and trade names Mr. Gattis, Gattis
Pizza, Gattis, Gattis to Go, G and G Gattis (MR. GATTIS and G Trademarks).
18.

Since the opening of Plaintiffs first location in 1969 in Austin, Texas, Plaintiff

has expanded and currently operates nearly 100 restaurants throughout Texas and in 13 other
states, including three restaurants in the Dallas/Fort Worth area. The majority of Plaintiffs
restaurants feature all-you-care-to-eat buffets of pizza, pasta, salad, and related food items.
19.

Plaintiff has continually used the MR. GATTIS and G Trademarks in commerce,

throughout Texas and the United States. The MR. GATTIS and G Trademarks are inherently
distinctive and serve to identify and indicate the source of Plaintiffs restaurant services to the
consuming public.
20.

As a result of Plaintiffs long use and promotion of the MR. GATTIS and G

Trademarks, the marks have become distinctive to designate Plaintiff, to distinguish Plaintiff and
its restaurant services and products from those of others, and to distinguish the source or origin
of Plaintiffs restaurant services and products. As a result of these efforts by Plaintiff, the
consuming public in Texas and throughout the United States widely recognizes and associates
the MR. GATTIS and G Trademarks with Plaintiff.
21.

As a result of Plaintiffs long use and promotion of the MR. GATTIS and G

Trademarks in Texas and elsewhere, Plaintiff has acquired valuable common law rights in the
MR. GATTIS and G Trademarks.
22.

The MR. GATTIS and G Trademarks are famous pursuant to 15 U.S.C.

1125(c) and Texas Business and Commerce Code 16.103.

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In accordance with the provisions of federal law, Plaintiff has registered the MR.

GATTIS and G Trademarks on the Principal Register of the United States Patent and Trademark
Office. (See U.S. Trademark Registration Nos. 1,962,000; 1,021,266; 3,208,007; 3,208,009;
2,810,201; 2,470,364; 4,175,337; and 4,175,291). These registrations are valid and subsisting,
and all but the last two are incontestable pursuant to 15 U.S.C. 1065. True and correct copies
of the Certificates of Registrations are attached hereto as Exhibit A.
24.

In addition to its registered MR. GATTIS and G Trademarks, the Plaintiff uses

certain trade dress consisting of elements such as distinctive graphics boards featuring photos of
Plaintiffs food products and distinctively styled menu boards (the Trade Dress).
25.

Plaintiff extensively advertises through all forms of broadcast media, print

media, social media, and outdoor billboards. Additionally, Plaintiff and Plaintiffs MR.
GATTIS and G Trademarks and Trade Dress have been featured by several publications and
websites,

including

Small

Business

Opportunities

magazine,

Pizzamarketplace.com, SunbeltFoodService.com, KeatingofChicago.com,

Franchising.com,
PMQ.com,

and

various online blogs.

26.

Through its trademark registrations and its consistent and continuous use,

extensive advertising, and third-party media attention, Plaintiff has developed enforceable
statutory and/or common law trademark, trade name, and trade dress rights in its MR. GATTIS
and G Trademarks and Trade Dress. Plaintiff has established substantial goodwill to its
customers with its MR. GATTIS and G Trademarks and has developed an excellent reputation
throughout Texas and the United States. In addition, Plaintiff has invested significantly in
advertising the MR. GATTIS and G Trademarks in association with its business.

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B. DEFENDANTS INFRINGING ACTIVITIES

27.

Defendants place of business at 2115 E. Beltline Road, Richardson, Dallas

County, TX 75081, (hereinafter the Infringing Restaurant) was operated as a franchised Mr.
Gattis restaurant for approximately 12 years.
28.

The franchised Mr. Gattis closed on April 6, 2014.

29.

Upon information and belief, Defendants immediately succeeded the former Mr.

Gattis franchisee as tenant at the site of the former Mr. Gattis restaurant, and immediately
began operating the Infringing Restaurant using confusingly similar marks and trade dress as that
of the MR. GATTIS and G Trademarks and Trade Dress (the Infringing Marks), including
through the activities described below and further illustrated in Exhibit B hereto:
a. The use of a business name - namely, Mr. Gs Pizza Buffet - that is confusingly
similar to the Mr. Gattis and G Trademarks;
b. The use of one of the MR. GATTIS and G Trademarks - namely, the lower case
Mr. Gattis g- in two exterior signs as part of the phrase Mr. Gs Pizza Buffet;
c. The use of food trays displaying the MR. GATTIS and G Trademarks throughout
the Infringing Restaurant;
d. The use of the name Mr. Gattis Pizzaor Mr. Gs Pizza and Buffet on receipts
Defendants issue to customers;
e. Defendants credit card processing system, which is configured such that Mr.
Gattis Pizza Beltline or Mr. Gs Pizza Buffet appears on customers credit
card statements in connection with purchases made at the Infringing Restaurant;
f. The use of Plaintiffs distinctive graphics boards featuring photos of Plaintiffs
products; and
g. The use of Plaintiffs distinctively-styled menu boards behind the cash register in
the Infringing Restaurant.

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30.

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Plaintiff owns common law marks and has rights that would preclude the use of

the Mr. Gs moniker and the operations conducted by Defendants. Plaintiff has not licensed or
authorized Defendants to undertake any of the above-described activities.
31.

On information and belief, one or more of the Defendants do now and/or have in

the past operated or participated in operating at least one Mr. Gs Pizza Buffet that was either
identical to, or confusingly similar to, Plaintiffs operations.
32.

On October 31, 2014, Plaintiff gave notice of the infringing activities related to

the MR. GATTIS and G Trademarks prior to the commencement of this action, demanding a
halt to specific acts by one or both Defendants.
33.

On December 22, 2014, a second notice was hand delivered to Porfirio Martinez

in addition to the notice sent on October 31, 2014.

34.

On December 22, 2014, Defendant Porfirio Martinez verbally confirmed that he

would comply by January 18, 2015.

35.

On information and belief, Defendants are associated with the website located at

http://www.mrgpizzabuffet.com/, which also provides information about Mr. Gs Pizza Buffet.

36.

On information and belief, and notwithstanding the foregoing, Defendants have

operated and continue to operate the Mr. Gs Pizza Buffet and continue to engage in acts
complained of herein. Such activities directly infringe on Plaintiffs intellectual property and
uses Plaintiffs intellectual property to compete with Plaintiff. Like Plaintiff, the Infringing
Restaurant features all-you-care-to-eat buffets of pizza, pasta, salad, and related food items and
appeals to the same customer base as Plaintiffs by virtue of the location, the price point and
buffet offerings, the fact that the immediately prior tenant was a former Mr. Gattis franchisee,

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and, not the least, the fact that Defendants appear to hold the Infringing Restaurant out as being
associated with Plaintiff.
37.

On information and belief, Defendants are willfully operating the Mr. Gs Pizza

Buffet and engaging in the acts complained of herein.

C. EFFECT OF DEFENDANTS ACTIVITIES
38.

Defendants activities falsely represent to the public that the Infringing Restaurant

is associated with Plaintiff or its licensees or franchisees.

39.

Defendants unauthorized use of the Infringing Marks is likely to cause confusion,

to cause mistake, and/or to deceive customers and potential customers of the parties, at least as to
some affiliation, connection, or association of Defendant with Plaintiff, or as to the origin,
sponsorship, or approval of Defendant's restaurant by Plaintiff.
40.

Defendants unauthorized use of the Infringing Marks falsely designates the

origin of its restaurants, and falsely and misleadingly describes and represents facts with respect
to Defendants restaurant.
41.

Defendants unauthorized use of the Infringing Marks enables Defendants to trade

on and receive the benefit of goodwill built up at great labor and expense by Plaintiff over many
years, and to gain acceptance for its restaurant not solely on its own merits, but on the reputation
and goodwill of Plaintiff, its MR. GATTIS and G Trademarks, and its restaurants.
42.

Defendants unauthorized use of the Infringing Marks is likely to cause dilution of

the famous MR. GATTIS and G Trademarks.

43.

Defendants unauthorized use of the Infringing Marks unjustly enriches

Defendants at Plaintiffs expense. Defendants have been and continue to be unjustly enriched,
obtaining a benefit from Plaintiff by taking undue advantage of Plaintiff and its vast goodwill.

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Specifically, Defendants have taken unfair advantage of Plaintiff by trading on and profiting
from the goodwill in the MR. GATTIS and G Trademarks developed and owned by Plaintiff,
resulting in Defendants wrongfully obtaining a monetary and reputational benefit for their own
business and products.
44.

Defendants unauthorized use of the Infringing Marks removes from Plaintiff the

ability to control the nature and quality of products provided under the MR. GATTIS and G
Trademarks, and places the valuable reputation and goodwill of Plaintiff in the hands of
Defendant, over whom Plaintiff has no control.
45.

Unless these acts of Defendants are restrained by this Court, they will continue,

and they will continue to cause irreparable injury to Plaintiff and to the public for which there is
no adequate remedy at law.
COUNT I: FEDERAL TRADEMARK INFRINGEMENT
46.

Plaintiff repeats the allegations above as if fully set forth herein.

47.

The acts of Defendants complained of herein constitute infringement of Plaintiffs

federally registered MR. GATTIS and G Trademarks in violation of 15 U.S.C. 1114(1).

48.

Defendants acts complained of herein have been deliberate, willful, intentional,

or in bad faith, with full knowledge and conscious disregard of Plaintiffs rights in the MR.
GATTIS and G Trademarks, and with intent to cause confusion and to trade on Plaintiffs vast
goodwill in the MR. GATTIS and G Trademarks. In view of the egregious nature of
Defendants infringement, this is an exceptional case within the meaning of 15 U.S.C. 1117(a).
COUNT II: FEDERAL UNFAIR COMPETITION
49.

Plaintiff repeats the allegations above as if fully set forth herein.

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The acts of Defendants complained of herein constitute unfair competition in

violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).

COUNT III: COMMON LAW TRADEMARK INFRINGEMENT
51.

Plaintiff repeats the allegations above as if fully set forth herein.

52.

The acts of Defendants complained of herein constitute trademark infringement in

violation of the common law of the State of Texas.

COUNT IV: COMMON LAW UNFAIR COMPETITION
53.

Plaintiff repeats the allegations above as if fully set forth herein.

54.

The acts of Defendants complained of herein constitute unfair competition in

violation of the common law of the State of Texas.

COUNT V: FEDERAL TRADEMARK DILUTION
55.

Plaintiff repeats the allegations above as if fully set forth herein.

56.

The acts of Defendants complained of herein constitute dilution of Plaintiffs

famous MR. GATTIS and G Trademarks in willful violation of 15 U.S.C. 1125(c).

57.

Defendants willfully intended to trade on the recognition of Plaintiffs famous

MR. GATTIS and G Trademarks and/or to harm the reputation of those marks.
COUNT VI: DILUTION UNDER TEXAS LAW
58.

Plaintiff repeats the allegations above as if fully set forth herein.

59.

The acts of Defendants complained of herein constitute dilution of Plaintiffs

famous MR. GATTIS and G Trademarks in violation of Texas Business and Commerce Code
16.103.
COUNT VII: UNJUST ENRICHMENT
60.

Plaintiff repeats the allegations above as if fully set forth herein.

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The acts of Defendants complained of herein constitute unjust enrichment of

Defendant at the expense of Plaintiff.

DEMAND FOR A JURY TRIAL
62.

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff

respectfully requests a trial by jury of all issues properly triable by jury.

PRAYER FOR RELIEF

63.

WHEREFORE, Plaintiff requests entry of judgment in its favor and against

Defendants including the following:

a. A judgment declaring that Defendants have infringed Plaintiffs trademarks;
b. A judgment awarding Plaintiff damages as a result of Defendants infringement of
the trademarks with interest and costs;
c. A judgment declaring that Defendants infringement of Plaintiff trademarks has
been willful and deliberate;
d. A judgment declaring that Defendants business, and the present operations under
the MR. Gs moniker, in competition with Plaintiff and its trademarks, constitute
trademark infringement under 15 U.S.C. 1114 and unfair competition under 15
U.S.C. 1125, and also that Defendants acts constitute willful infringement
under 15 U.S.C. 1117;
e. A judgment ordering that Defendants be ordered to pay any and all damages
available under 15 U.S.C. 1117, including court costs, expenses, enhanced
damages, statutory damages to the extent permissible, and attorneys fees;

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f. A grant of permanent injunction enjoining the Defendants from further acts of

trademark infringement and unfair competition;
g. Any other accounting for damages;
h. Any other appropriate interest and costs; and
i. For such other and further relief as the Court deems just and proper.

DATE: March 2, 2015

Respectfully submitted,
/s/ Stewart N. Mesher
STEWART N. MESHER
TX Bar No. 24032738
smesher@conleyrose.com
CONLEY ROSE, P.C.
13413 Galleria Circle, Suite 100
Austin, TX 78738
(512) 610-3410
(512) 610-3456 (fax)
KRISTIN JORDAN HARKINS
TX Bar No. 00787795
kharkins@dfw.conleyrose.com
CONLEY ROSE, P.C.
5601 Granite Parkway, Suite 500
Plano, TX 75024
ATTORNEYS FOR MR. GATTIS, LP

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