Eat 'N Park v. Chicago American - Complaint

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 1 of 13
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EATN PARK HOSPITALITY

GROUP, INC. and
EPR HOLDINGS, INC.,
Plaintiffs,
v.
CHICAGO AMERICAN
SWEETS & SNACKS, INC.,
Defendant.
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Civil Action No.
JURY TRIAL DEMANDED
COMPLAINT
AND NOW come Plaintiffs, Eatn Park Hospitality Group, Inc. and EPR Holdings, Inc.,
together (Eatn Park), by their counsel, and aver the following for their Complaint against
Defendant Chicago American Sweet & Snacks, Inc. (Chicago American):
1.
Eatn Park Hospitality Group, Inc. is a corporation organized and existing under
the laws of the Commonwealth of Pennsylvania, with its principal place of business at 285 East
Waterfront Drive, P.O. Box 3000, Pittsburgh, Pennsylvania 15230. EPR Holdings, Inc. is a
corporation organized and existing under the laws of the State of Delaware, with its principal
place of business at 801 West Street, 2nd Floor, Wilmington, Delaware 19801.
2.
On information and belief, Defendant Chicago American is a corporation with a
principal place of business at 3501 Southport Avenue #274, Chicago, Illinois 60657.
3.
This is an action for trademark infringement, trademark dilution, and unfair
competition arising under the Federal Trademark Act of 1946, as amended, commonly known as
the Lanham Act, 15 U.S.C. 1051 et seq., and the statutes and common law of the
Commonwealth of Pennsylvania.
4.
This Court has jurisdiction over the subject matter and parties of this action
pursuant to 28 U.S.C. 1331, 1332(a) and 1338(a) and (b), and under the principle of
supplemental jurisdiction pursuant to 28 U.S.C. 1367.
5.
Venue is proper in this judicial district under 28 U.S.C. 1391(b) and (c) and
1400(b) because Chicago American is subject to personal jurisdiction in this judicial district.
6.
Eatn Park has been selling its distinctive smiling face cookie since 1985. The
smiling face cookie is extensively used by Eatn Park in its advertising, and is strongly
associated by the public with Plaintiff Eatn Park. The Eatn Park smiling face cookie is featured
as a prominent part of the Eatn Park restaurant signage and logo. The image of the smiling face
cookie is the symbol of Eatn Park. The cookie is sold at the Eatn Park restaurant locations and
throughout the United States from the website www.smileycookie.com.
7.
Eatn Park has been selling its smiling face cookie since 1987 under the
trademark SMILEY.
The trademark SMILEY is extensively used by Eatn Park in its
advertising, and its strongly associated by the public with Plaintiff Eatn Park.
8.
Eatn Park is the owner of the smiling face design trademark, which is registered
for baked goods: namely, cookies under United States Trademark Registration No. 1,809,410.
A copy of this registration is attached hereto as Exhibit A. The right of Eatn Park to use this
trademark is incontestable pursuant to 15 U.S.C. 1065.
9.
Eatn Park is the owner of the trademark SMILEY, which is registered for
sugar cookie having raised design of a smiling face sold in restaurants for consumption on or
off the premises under United Stated Trademark Registration No. 2,108,164, and for pancakes
and cookies under United States Trademark Registration No. 3,310,195.
Copies of these
registrations are attached hereto as Exhibits B and C, respectively. The right of Eatn Park to use
these trademarks is incontestable pursuant to 15 U.S.C. 1065.
10.
Chicago American sells and offers for sale smiling face cookies, under the name
Smileys which include a design that is confusingly similar to the registered trademark of
Eatn Park. Chicago Americans Smileys cookies are directly competitive products to the
Eatn Park SMILEY smiling face cookies.
11.
Chicago Americans use of its confusingly similar smiling face design and the
Smileys word mark for the sale of cookies is intended and is likely to foster market confusion
that Chicago Americans products originate, are sponsored by, or are otherwise affiliated with
Eatn Park because of the similarity of the design used by Chicago American to the registered
smiling face trademark of Eatn Park, as well as the similarity of the word mark Smileys to
the registered trademark SMILEY.
12.
Unless the relief requested herein by Eatn Park is granted, Eatn Park will suffer
further serious, immediate, and irreparable harm, including, but not limited to, customer
confusion, dilution, and loss of goodwill.
COUNT I
(Trademark Infringement Under 15 U.S.C. 1114)
13.
Eatn Park repeats and realleges the averments contained in paragraphs 1 through
12 of this Complaint as if fully stated herein.

14.
The registered smiling face design trademark for cookies is the sole and exclusive
property of Eatn Park.

15.
Eatn Park has never authorized Defendant to use the smiling face design
trademark or any mark confusingly similar thereto.
16.
Upon information and belief, Chicago American has, without the consent of Eatn
Park, used its confusingly similar design in connection with its sale of cookies and has caused
such products to enter interstate commerce, including, inter alia, this judicial district.
17.
Upon information and belief, Chicago American has promoted, marketed, and
sold cookies in conjunction with its smiling face design with the knowledge and belief that such
unauthorized use in commerce has caused and is likely to cause confusion, or to cause mistake,
or to deceive the purchasers of Eatn Park products that such products are baked, endorsed,
sponsored, authorized, recommended, or warranted by Eatn Park.
18.
Upon information and belief, Chicago Americans use of its infringing smiling
face design in interstate commerce has caused or is likely to cause confusion, or to cause
mistake, or to deceive the purchasers of cookies to mistakenly believe that such products are
manufactured, sponsored, endorsed, authorized, recommended, or warranted by Eatn Park.
19.
Chicago Americans conduct violates Section 32(1) of the Lanham Act, 15 U.S.C.
1114(1).
20.
Eatn Park has been, and is likely to continue to be, irreparably harmed and
damaged by Chicago Americans acts of trademark infringement if Chicago American is not

restrained, in that Eatn Park has suffered and is likely to suffer a loss of sales and profits each
time customers believe that the products of Chicago American are baked, sponsored, endorsed,
authorized, recommended, or warranted by Eatn Park.
21.
Eatn Park has also been, and is likely to continue to be, irreparably harmed and
damaged by Chicago Americans aforementioned acts of trademark infringement, unless

Chicago American is restrained, in that Eatn Park has suffered a destruction of goodwill on each
occasion that its customers believe that the products of Chicago American are baked, sponsored,
authorized, endorsed, recommended, or warranted by Eatn Park.
COUNT II
(Trademark Infringement Under 15 U.S.C. 1114)
22.

23.
The registered trademark SMILEY for cookies is the sole and exclusive property
of Eatn Park.
24.
Eatn Park has not authorized Defendant to use the SMILEY trademark or any
mark confusingly similar thereto, including Smileys.

25.
Park, used the Smileys trademark in connection with its sale of cookies and has caused such
products to enter interstate commerce, including, inter alia, this judicial district.
26.
Upon information and belief, Chicago American has promoted, marketed, and
sold cookies in conjunction with the Smileys trademark with the knowledge and belief that
such unauthorized use in commerce has caused and is likely to cause confusion, or to cause
mistake, or to deceive the purchasers of Eatn Park products that such products are baked,
endorsed, sponsored, authorized, recommended, or warranted by Eatn Park.
27.
Upon information and belief, Chicago Americans use of its infringing Smileys
trademark in interstate commerce has caused or is likely to cause confusion, or to cause mistake,
or to deceive the purchasers of cookies to mistakenly believe that such products are
manufactured, sponsored, endorsed, authorized, recommended, or warranted by Eatn Park.
28.
Chicago Americans conduct violates Section 32(1) of the Lanham Act, 15 U.S.C.
1114(1).
29.
damaged by Chicago Americans acts of trademark infringement if Chicago American is not

time customers believe that the products of Chicago American are baked, sponsored, endorsed,
authorized, recommended, or warranted by Eatn Park.
30.
Eatn Park has also been, and is likely to continue to be, irreparably harmed and
damaged by Chicago Americans aforementioned acts of trademark infringement, unless

Chicago American is restrained, in that Eatn Park has suffered a destruction of goodwill on each
occasion that its customers believe that the products of Chicago American are baked, sponsored,
authorized, endorsed, recommended, or warranted by Eatn Park.
COUNT III
(False Designation of Origin and Unfair Competition in Violation of 15 U.S.C. 1125(a))
31.

32.
The distinctive smiling face trademark and the SMILEY trademark, and the
public recognition thereof, and the public association thereof with Eatn Park are protected under
Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
33.
Eatn Park has never authorized Chicago American to use the smiling face
trademark, the SMILEY trademark or any other mark confusingly similar thereto in connection
with Chicago Americans sale of cookies or otherwise.
34.
Park, used its smiling face design and the SMILEY trademark in connection with its sale of
cookies and has caused such products to enter interstate commerce.
35.
Upon information and belief, Chicago American has promoted, marketed, and/or
sold cookies in conjunction with the smiling face design and the SMILEY trademark with the
knowledge and belief that such unauthorized use in commerce has caused and is likely to cause
confusion, or to cause mistake, or to deceive, the purchasers of Chicago Americans products
that such products are baked, endorsed, sponsored, or authorized by Eatn Park, or that such
products are recommended or warranted by Eatn Park.
36.
Upon information and belief, Chicago Americans unauthorized use of the
registered smiling face design and registered SMILEY trademark in commerce has caused and
is likely to cause confusion, or to cause mistake, or to deceive, the purchasers of cookies to
believe mistakenly that such products are baked, sponsored, endorsed, or authorized by Eatn
Park or connected in some way with Eatn Park, or that such products are recommended or
warranted by Eatn Park.
37.
Chicago Americans smiling face design cookie is confusingly similar to U.S.
Registration No. 1,809,410. Chicago Americans Smileys word mark is confusingly similar
to United States Registration Nos. 2,108,164 and 3,310,195. The use of this design and word
mark by Chicago American is even more confusing because they are used on identical goods.
38.
Chicago Americans conduct constitutes false designation of origin and unfair
competition and violates Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).
39.
damaged by Chicago Americans acts of false designation of origin and unfair competition if
Chicago American is not restrained, in that Eatn Park has suffered and is likely to suffer a loss
of sales and profits each time its customers believe that Chicago Americans products are
manufactured or endorsed by Eatn Park, and Eatn Park has no adequate remedy at law.
40.
Eatn Park also has been, and is likely to continue to be irreparably harmed and
damaged by Chicago Americans aforementioned acts of unfair competition and false

designation of origin unless Chicago American is restrained, in that Eatn Park has suffered and
is likely to suffer a loss of reputation and goodwill on each occasion that its customers believe
Chicago Americans products are baked or endorsed by Eatn Park, and Eatn Park has no
adequate remedy at law.
COUNT IV
(Trademark Dilution in Violation of 15 U.S.C. 1125(c)(1))
41.

42.
Eat n Park is the exclusive owner of its registered smiling face design trademark
and the registered word mark SMILEY for cookies.
These trademarks are strong and
distinctive and are famous within the relevant market.

43.
trademark or any design confusingly similar thereto in connection with Chicago Americans
products or otherwise. Eatn Park has never authorized Chicago American to use the word mark
SMILEY or any mark confusingly similar thereto in connection with Chicago Americans
products or otherwise.
44.
Upon information and belief, Chicago American, without the consent of Eatn
Park, has used its confusingly similar smiling face design and the SMILEY word mark in
connection with its sale of cookies, and has caused such products to enter interstate commerce.
Chicago Americans use of these trademarks began after the Eatn Park smiling face mark and
the SMILEY mark became famous.
45.
sold cookies with the knowledge and intent that such unauthorized use in commerce has caused
mistake, or deceived the customers of Eatn Park that such products are baked, sponsored,
endorsed, or authorized by Eatn Park or that such products are recommended or warranted by
Eatn Park. Chicago Americans use of its smiling face design and the Smileys word mark
causes dilution by lessening the capacity of the registered smiling face and SMILEY
trademarks, to identify and distinguish Eatn Park and its cookies.
46.
Such unauthorized use of the smiling face design and the Smileys word mark
in commerce by Chicago American has caused, or is likely to cause irreparable injury to Eatn
Parks business reputation and/or dilution of the distinctive quality of the smiling face trademark,
and the SMILEY trademark and Eatn Park has no adequate remedy at law.
47.
Chicago Americans conduct constitutes trademark dilution and violates Section
43(c)(1) of the Lanham Act, 15 U.S.C. 1125(c)(1).

COUNT V
(Trademark Dilution in Violation of 54 Pa. C.S.A. 1124)
48.
Eatn Park repeats and realleges the averments contained in Paragraphs 1 through

49.
Eatn Park is the exclusive owner of the smiling face trademark and the
SMILEY trademark for cookies.
These trademarks are strong and distinctive, and have
acquired secondary meaning.

50.
trademark or any design confusingly similar thereto in connection with Chicago Americans
products or otherwise. Eatn Park has never authorized Chicago American to use the word mark
SMILEY or any mark confusingly similar thereto in connection with Chicago Americans
products or otherwise.
51.
Chicago American has, without the consent of Eatn Park, used the smiling face
design and the SMILEY word mark in connection with its sale of cookies.
52.
sold cookies with the knowledge and intent that such unauthorized use in commerce has caused
mistake, or has deceived the customers of Eatn Park that such products are baked, formulated,
sponsored, endorsed, or authorized by Eatn Park or that such products are recommended or
warranted by Eatn Park. Chicago Americans use of the smiling face design and the SMILEY
word mark causes dilution by lessening the capacity of these trademarks to identify and
distinguish Eatn Park and its cookies.
53.
Such unauthorized use of the smiling face design and the SMILEY word mark in
commerce by Chicago American has caused, or is likely to cause irreparable injury to Eatn
Parks business reputation and/or dilution of the distinctive quality of the smiling face trademark
and the SMILEY trademark, and Eatn Park has no adequate remedy at law.
54.
Chicago Americans conduct constitutes trademark dilution and violates Section
1124 of Title 54 of the Pennsylvania Consolidated Statutes, 54 Pa. C.S.A. 1124.

COUNT VI
(Common Law Unfair Competition)
55.
10
56.
Chicago Americans aforementioned conduct in connection with the sale of
cookies while utilizing its smiling face design and the SMILEY word mark constitutes unfair
competition at common law.
57.
damaged by Chicago Americans acts of unfair competition if Chicago American is not

time its customers believe that Chicago Americans products are baked, formulated, sponsored,
endorsed, or authorized by Eatn Park and Eatn Park has no adequate remedy at law.
58.
Eatn Park also has been, and is likely to continue to be, irreparably harmed and
damaged by Chicago Americans aforementioned acts of unfair competition unless Chicago

American is restrained, in that Eatn Park has suffered and is likely to suffer a loss of reputation
and goodwill on each occasion that its customers believe that it has baked, formulated,
sponsored, endorsed, or authorized Chicago Americans products, and Eatn Park has no
adequate remedy at law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray:
(a)
that Defendant Chicago American and those persons in active concert or
participation with Chicago American, be preliminarily and permanently enjoined and restrained
from using the smiling face trademark design and any other mark confusingly similar thereto in
the manufacture, marketing, advertising, labeling, packaging, offer for sale, sale, distribution of
any and all cookies;
(b)
that Defendant Chicago American and those persons in active concert or
participation with Chicago American, be preliminarily and permanently enjoined and restrained
11
from using the Smileys trademark and any other mark confusingly similar to SMILEY in the
manufacture, marketing, advertising, labeling, packaging, offer for sale, sale, distribution of any
and all cookies;
(c)
that all labels, boxes, cartons, signs, catalogs, literature, packages, marketing
materials, and advertisements of Defendant Chicago American which include the smiling face
mark and/or the Smileys mark and/or any other mark confusingly similar thereto, and relate to
any and all cookies, be delivered and destroyed as the Court shall direct pursuant to 15 U.S.C.
1116;
(d)
that Defendant Chicago American be ordered to account to Plaintiffs for any and
all profits derived by it by reason of the acts complained of in this Complaint pursuant to 15
U.S.C. 1114, 1117 and 1125;
(e)
that Defendant Chicago American be ordered to pay damages to Plaintiffs for
injuries sustained by Plaintiffs as a result of Chicago Americans infringement of Plaintiffs

trademarks and for trademark dilution, in an amount to be determined at trial, pursuant to 15
U.S.C. 1114 and 1117;
(f)
injuries sustained by Plaintiffs as a result of Chicago Americans false designations of origin and
unfair competition, in an amount to be determined at trial, pursuant to 15 U.S.C. 1117 and
1125, and common law;
(g)
that Defendant Chicago American be ordered to pay treble damages to Plaintiffs
pursuant to 15 U.S.C. 1117(b);
12
(h)
injuries sustained by Plaintiffs as a result of Chicago Americans dilution of Plaintiffs

trademarks, in an amount to be determined at trial, pursuant to 54 Pa. C.S.A. 1124;
(i)
that Plaintiffs be awarded their costs of this action including reasonable attorneys
fees pursuant to 15 U.S.C. 1117 and common law;

(j)
that Plaintiffs be awarded such further relief as the Court shall deem appropriate.
Respectfully submitted,
Dated: May 19, 2015
/s/Kent E. Baldauf, Jr.

Kent E. Baldauf, Jr., PA ID No. 70793
Cecilia R. Dickson, P.A. ID No. 89348
Bryan P. Clark, P.A. ID No. 205708
THE WEBB LAW FIRM
One Gateway Center
420 Ft. Duquesne Blvd., Suite 1200
Pittsburgh, PA 15222
Telephone: (412) 471-8815
Facsimile: (412) 471-4094
Counsel for Plaintiffs
Eatn Park Hospitality Group, Inc. and
EPR Holdings, Inc.
13
Case 2:15-cv-00655-MPK Document 1-1 Filed 05/19/15 Page 1 of 3
JS 44 (Rev. 12/12)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
EATN PARK HOSPITALITY GROUP, INC. and

EPR HOLDINGS, INC.
(b) County of Residence of First Listed Plaintiff
CHICAGO AMERICAN SWEETS & SNACKS, INC.,

County of Residence of First Listed Defendant
Allegheny
(EXCEPT IN U.S. PLAINTIFF CASES)

NOTE:
Cook
(IN U.S. PLAINTIFF CASES ONLY)

IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
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Kent E. Baldauf, Jr., Cecilia R. Dickson and Bryan P. Clark
The Webb Law Firm, P.C., One Gateway Center, 420 Ft. Duquesne
Blvd., Suite 1200, Pittsburgh, PA 15222, (412) 471-8815
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1
U.S. Government
Plaintiff
Federal Question
(U.S. Government Not a Party)
U.S. Government
Defendant
Diversity
(Indicate Citizenship of Parties in Item III)
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PTF
Citizen of This State
1
DEF
1
and One Box for Defendant)

PTF
DEF
Incorporated or Principal Place
4
4
of Business In This State
Citizen of Another State
Incorporated and Principal Place

of Business In Another State
Citizen or Subject of a
Foreign Country
Foreign Nation
IV. NATURE OF SUIT (Place an X in One Box Only)

CONTRACT
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veterans Benefits
160 Stockholders Suits
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195 Contract Product Liability
196 Franchise
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240 Torts to Land
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PERSONAL INJURY
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Liability
320 Assault, Libel &
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330 Federal Employers
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340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
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443 Housing/
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445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
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PERSONAL INJURY
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367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
370 Other Fraud
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Sentence
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535 Death Penalty
Other:
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555 Prison Condition
560 Civil Detainee Conditions of
Confinement
625 Drug Related Seizure

of Property 21 USC 881
690 Other
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423 Withdrawal
28 USC 157
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820 Copyrights
830 Patent
840 Trademark
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
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740 Railway Labor Act
751 Family and Medical
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790 Other Labor Litigation
791 Employee Retirement
Income Security Act
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864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS

870 Taxes (U.S. Plaintiff
or Defendant)
871 IRSThird Party
26 USC 7609
OTHER STATUTES
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400 State Reapportionment
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Corrupt Organizations
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V. ORIGIN (Place an X in One Box Only)

1 Original
Proceeding
2 Removed from
State Court
Remanded from
Appellate Court
4 Reinstated or
Reopened
5 Transferred from
Another District
(specify)
6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
15 U.S.C. 1051
VI. CAUSE OF ACTION Brief description of cause:
Trademark infringement, cybersquatting, unfair competition and false designation of origin
CHECK IF THIS IS A CLASS ACTION

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V.
Origin. Place an "X" in one of the six boxes.

Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
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date.
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multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
EXHIBIT A
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Goods and Services IC 030. US 046. G & S: baked goods; namely, cookies. FIRST USE: 19851100. FIRST USE IN
COMMERCE: 19851100
Mark Drawing Code (2) DESIGN ONLY
Design Search Code 02.01.33 - Grotesque men formed by letters, numbers, punctuation or geometric shapes; Stick figures
02.11.16 - Faces, smiley; Smiley faces
04.07.02 - Objects forming a person; Person formed by objects
08.01.05 - Cookies; Fortune cookies
Serial Number
74305316
Filing Date
August 18, 1992
Current Basis
1A
Original Filing Basis 1A

Published for
Opposition
September 14, 1993
Registration
Number
1809410
Registration Date
December 7, 1993
Owner
(REGISTRANT) EAT 'N PARK RESTAURANTS, INC. CORPORATION PENNSYLVANIA 100 Park
Manor Drive Pittsburgh PENNSYLVANIA 15205
(LAST LISTED OWNER) EPR HOLDINGS, INC. CORPORATION DELAWARE 801 WEST STREET
2ND FLOOR WILMINGTON DELAWARE 19801
Assignment
Recorded
ASSIGNMENT RECORDED
Attorney of Record
Kent E. Baldauf, Jr.
Type of Mark
TRADEMARK
Register
PRINCIPAL-2(F)
Affidavit Text
SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20131214.
5/19/2015 3:27 PM
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2ND RENEWAL 20131214
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to TESS)
Word Mark
SMILEY
Goods and
Services
IC 030. US 046. G & S: sugar cookie having raised design of a smiling face sold in restaurants for
consumption on or off the premises. FIRST USE: 19870400. FIRST USE IN COMMERCE: 19870400
Mark Drawing
(1) TYPED DRAWING
Code
Serial Number 74729817
Filing Date
September 15, 1995
Current Basis 1A
Original Filing
1A
Basis
Published for
August 5, 1997
Opposition
Registration
Number
2108164
Registration
Date
October 28, 1997
Owner
(REGISTRANT) JAMES S. BROADHURST, SUZANNE W. BROADHURST, BASIL M. COX, EDWARD L.

FLAHERTY, GREGOR F. MEYER, ROBERT N. MOORE, DANIEL S. WILSON AND DAVID L. WOHLEBER,
ALL U.S. CITIZENS, AS TRUSTEES OF EAT 'N PARK RESTAURANTS BUSINESS TRUST composed of
James S. Broadhurst, Suzanne W. Broadhurst, Basil M. Cox, Edward L. Flaherty, Gregor F. Meyer, Robert N.
Moore, Daniel S. Wilson and David L. Wohleber, all U.S. citizens BUSINESS TRUST PENNSYLVANIA 100
Park Manor Drive Pittsburgh PENNSYLVANIA 15205
(LAST LISTED OWNER) EPR HOLDINGS, INC. CORPORATION DELAWARE 801 WEST STREET 2ND
FLOOR WILMINGTON DELAWARE 19801
Assignment
Recorded
ASSIGNMENT RECORDED
Attorney of
Record
Kent E. Baldauf, Jr., Reg. No. 36,082
Type of Mark
TRADEMARK
Register
PRINCIPAL
Affidavit Text SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20071106.

Renewal
1ST RENEWAL 20071106
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Word Mark
SMILEY
Goods and Services IC 030. US 046. G & S: Pancakes and Cookies. FIRST USE: 19870400. FIRST USE IN COMMERCE:
19870400
Mark Drawing Code
(1) TYPED DRAWING
Serial Number
75528931
Filing Date
July 31, 1998
Current Basis
1A
Original Filing Basis 1A

Published for
Opposition
July 31, 2007
Registration Number 3310195

Registration Date
October 16, 2007
Owner
(REGISTRANT) EPR INVESTMENTS, INC. CORPORATION DELAWARE 801 WEST STREET, 2ND
FLOOR WILMINGTON DELAWARE 19801
(LAST LISTED OWNER) EPR HOLDINGS, INC. CORPORATION DELAWARE 801 WEST STREET
2ND FLOOR WILMINGTON DELAWARE 19801
Assignment
Recorded
ASSIGNMENT RECORDED
Attorney of Record
Kent E. Baldauf, Jr.
Prior Registrations
2108164
Type of Mark
TRADEMARK
Register
PRINCIPAL
Affidavit Text
SECT 15. SECT 8 (6-YR).
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Eat 'N Park v. Chicago American - Complaint

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Eat 'N Park v. Chicago American - Complaint

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Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

EATN PARK HOSPITALITY

Civil Action No.

JURY TRIAL DEMANDED

On information and belief, Defendant Chicago American is a corporation with a

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

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 2 of 13

The trademark SMILEY is extensively used by Eatn Park in its

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 3 of 13

and cookies under United States Trademark Registration No. 3,310,195.

12 of this Complaint as if fully stated herein.

property of Eatn Park.

trademark or any mark confusingly similar thereto.

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 4 of 13

damaged by Chicago Americans acts of trademark infringement if Chicago American is not

damaged by Chicago Americans aforementioned acts of trademark infringement, unless

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 5 of 13

21 of this Complaint as if fully stated herein.

mark confusingly similar thereto, including Smileys.

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 6 of 13

damaged by Chicago Americans acts of trademark infringement if Chicago American is not

damaged by Chicago Americans aforementioned acts of trademark infringement, unless

30 of this Complaint as if fully stated herein.

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 7 of 13

Upon information and belief, Chicago Americans unauthorized use of the

Chicago Americans smiling face design cookie is confusingly similar to U.S.

Chicago Americans conduct constitutes false designation of origin and unfair

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 8 of 13

damaged by Chicago Americans aforementioned acts of unfair competition and false

40 of this Complaint as if fully stated herein.

and the registered word mark SMILEY for cookies.

These trademarks are strong and

distinctive and are famous within the relevant market.

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 9 of 13

Chicago Americans conduct constitutes trademark dilution and violates Section

43(c)(1) of the Lanham Act, 15 U.S.C. 1125(c)(1).

47 of this Complaint as if fully stated herein.

SMILEY trademark for cookies.

These trademarks are strong and distinctive, and have

acquired secondary meaning.

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 10 of 13

Chicago Americans conduct constitutes trademark dilution and violates Section

1124 of Title 54 of the Pennsylvania Consolidated Statutes, 54 Pa. C.S.A. 1124.

54 of this Complaint as if fully stated herein.

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 11 of 13

Chicago Americans aforementioned conduct in connection with the sale of

damaged by Chicago Americans acts of unfair competition if Chicago American is not

damaged by Chicago Americans aforementioned acts of unfair competition unless Chicago

that Defendant Chicago American and those persons in active concert or

that Defendant Chicago American and those persons in active concert or

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 12 of 13

that Defendant Chicago American be ordered to pay damages to Plaintiffs for

injuries sustained by Plaintiffs as a result of Chicago Americans infringement of Plaintiffs

that Defendant Chicago American be ordered to pay damages to Plaintiffs for

that Defendant Chicago American be ordered to pay treble damages to Plaintiffs

pursuant to 15 U.S.C. 1117(b);

Case 2:15-cv-00655-MPK Document 1 Filed 05/19/15 Page 13 of 13

that Defendant Chicago American be ordered to pay damages to Plaintiffs for

injuries sustained by Plaintiffs as a result of Chicago Americans dilution of Plaintiffs

fees pursuant to 15 U.S.C. 1117 and common law;

Dated: May 19, 2015

/s/Kent E. Baldauf, Jr.