Grace Manufacturing v. Amazon - Trademark Complaint PDF

FILED
DISTRICT COURT
Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 1 of 22U.S
EASTERN DISTRICT ARKANSAS
OCT 20201Y)
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
Case No. 4:15-cv-(
GRACE MANUFACTURING, INC.,

Plaintiff,
~~:~~K
DEPCLERK
Mq-- :>H
Hon.
v.
AMAZON.COM, INC.,
COMPLAINT AND JURY DEMAND
Defendant.
R. Michael Azzi (MI Bar No. 74508)

WARNER NORCROSS & JUDD LLP
900 Fifth Third Center
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503-2487
616.752.2000
Attorneys for Plaintiff
HocdL\
This case 1ssigned to District Judge

and to Magistrate Judge
\) Q\
P2=:
Plaintiff Grace Manufacturing, Inc. brings its Complaint against Defendant

Amazon.com, Inc. as follows:
Nature of the Action
1.
This is an action for counterfeiting, trademark infringement, and unfair
competition I false designation or origin under the Lanham Act (15 U.S.C. 1114 & 1125);
trademark counterfeiting under the common law of the United States; and deceptive trade
practices under Arkansas' Consumer Protection Act.
The Parties
2.
Plaintiff Grace Manufacturing, Inc. ("Grace") is an Arkansas corporation having
its principal place of business in Russellville, Arkansas. Grace is a precision parts manufacturer
that provides services and products across a wide range of industries.
Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 2 of 22
3.
In addition to being a leader in the precision parts industry more generally, Grace
also designs, manufactures, markets, and sells high-quality kitchen tools under the
MICROPLANE trademark and brand-name, including its MICROPLANE line of zesters and
graters.
4.
Upon information and belief, Defendant Amazon.com, Inc. ("Amazon") is a
corporation organized and existing under the laws of the State of Delaware having its principal
place of business at 410 Terry Ave. North, Seattle, Washington 98109-5210. Amazon's business
includes advertising, selling, offering for sale, and distributing various goods via its internet
website located at www.amazon.com (the "Site").
Jurisdiction and Venue
5.
Jurisdiction over the parties and subject matter of this action is proper in this
Court pursuant to 15 U.S.C. 1121 (actions arising under the Lanham Act), 28 U.S.C. 1331
(actions arising under the laws of the United States), 28 U.S.C. 1332(a) (diversity of
citizenship between the parties), and 1338(a) (actions arising under an Act of Congress relating
to trademarks).
6.
Upon information and belief, Amazon sells, and offers for sale, goods throughout
the United States and has systematic and continuous dealings within this District.
7.
Venue is proper in this District under 28 U.S.C. 1391.

Allegations and Claim for Relief
8.
For many years, Grace has continuously engaged in the development, design,
manufacture, and sale of its MICROPLANE line of graters and zesters, becoming a premiere
source for graters and zesters in the competitive kitchen tools market throughout the United
States.
9.
Grace has taken steps over the years to protect its innovative line of graters and
zesters, which has continued to grow and expand since the original MICRO PLANE zester came
to market years ago.
10.
Grace is the owner of the following United States Federal Trademark
Registrations (hereinafter collectively referred to as the "MICROPLANE Trademarks"):

Reg. No. Mark
Registration Date
Classes
4193532
MICRO PLANE 21 for household utensils, namely, August 21, 2012

hand operated spice and cheese graters
and fruit peel grater used as a zester.
1734414
MICRO PLANE
1759478
MICROPLANE 7 for chemically etched cutting tools; March 23, 1993

namely, food processor blades, rotarypowered cutting/sanding discs and
drums.
3376781
MICROPLANE
8 for manually-operated chemically November 24, 1992

etched cutting tools; namely, hacksaw
blades, sheet metal files, sheet metal
rasps, hand-held carving tools, and
shaving blades, all for non-metallic
materials
8 for pedicure implements, namely, February 5, 2008

foot files.
Copies of the certificates ofregistration for the MICROPLANE Trademarks listed above are
attached as Exhibit A.
11.
These registrations are valid, subsisting, in full force and effect.
12.
The registration of the marks constitutes prima facie evidence of their validity and
conclusive evidence of Grace's exclusive right to use the MICROPLANE Trademarks in

connection with the goods identified therein and other commercial goods.
13.
The registration of the marks also provides sufficient notice to Amazon of Grace's
ownership and exclusive rights in the MICROPLANE Trademarks.
14.
The MICROPLANE Trademarks at issue in this case have been continuously
used and have never been abandoned.

15.
Grace has expended substantial time, money, and other resources in developing,
advertising, and otherwise promoting the MICROPLANE Trademarks. As a result, products

bearing the MICROPLANE Trademarks are widely recognized and exclusively associated by
consumers, the public, and the trade as being high quality products sourced from Grace.
16.
Upon information and belief, Amazon is engaged in advertising, promoting,
distributing, selling, and/or offering for sale products bearing logos and source-identifying
indicia and design elements that are studied imitations of the MICRO PLANE products and the
MICROPLANE Trademarks (hereinafter the "Counterfeit Products").
17.
Amazon has advertised, promoted, distributed, sold, offered for sale, and/or
willingly facilitated the sale of counterfeit zesters bearing the MICROPLANE Trademarks from
the Site.
18.
By way of example, on or around September 10, 2015, a representative of Grace
located a number of sellers selling zesters bearing the MICROPLANE Trademark on the Site.
The representative ordered two zesters from two different sellers on the Site, each purportedly
manufactured by Grace and bearing the MICROPLANE Trademark and each a near exact
imitation of Grace's MICROPLANE zester. Upon closer inspection, it was determined that the
zesters were not manufactured by Grace, in that they were made of materials inferior to those
used by Grace, and were otherwise not constructed in the quality and manner employed by Grace
in the manufacturing of its zesters.
19.
On or around September 17, 2015, a representative of Grace ordered six
additional zesters from six different sellers bearing the MICROPLANE Trademark via the Site.
Each of the six additional zesters was also purportedly manufactured by Grace. Upon closer
inspection, it was determined that the zesters were not manufactured by Grace, in that they were
made of materials inferior to those used by Grace, and were otherwise not constructed in the
quality and manner employed by Grace in the manufacturing of its zesters.
20.
Each of the zesters purchased by a representative of Grace via the Site, and
referenced in paragraphs 17 and 18 of this Complaint, was "fulfilled by Amazon," or, in other
words, a product that was stored in one of Amazon's warehouses, and distributed directly to the
purchaser by Amazon. Each of the purchased zesters was stored at and distributed by Amazon
from either its Lexington, Kentucky or Las Vegas, Nevada warehouse.
21.
Each of the purchased zesters in question featured the MICROPLANE
Trademark and were studied imitations of Grace's MICRO PLANE zester.

22.
At least as early as September 23, 2015, Grace informed Amazon's
representatives that counterfeit goods were being offered for sale on the Site, were being stored
by Amazon in its warehouses, and being distributed by Amazon to consumers.
23.
Again, on or around September 30, 2015 a representative of Grace purchased a
zester bearing the MICROPLANE Trademark on the Site, which zester was purportedly
manufactured by Grace. While not listed as a product "fulfilled by Amazon," it nonetheless was
distributed by Amazon from its Las Vegas, Nevada, warehouse. Again, upon closer inspection,
it was determined that the zester was not manufactured by Grace, in that it was made of materials
inferior to those used by Grace, and were otherwise not constructed in the quality and manner
employed by Grace in the manufacturing of its zesters.
24.
Grace has repeatedly requested that all sales of MICROPLANE zesters on the
Site be halted until Amazon addresses its distribution and sale of counterfeit MICROPLANE
goods.
25.
Amazon has failed to take adequate affirmative steps to halt the trafficking in
counterfeit goods.
26.
Grace is suffering irreparable injury, has suffered substantial damages as a result
of Amazon's activities, and has no adequate remedy at law.

COUNT I: Trademark Counterfeiting, 15 U.S.C. 1114(1)
27.
Grace incorporates by reference all preceding paragraphs.
28.
Amazon, without authorization from Grace, has used and is continuing to use
spurious designations that are identical to, or substantially indistinguishable from, Grace's
registered MICROPLANE Trademarks.
29.
The foregoing acts of Amazon are intended to cause, have cause, and are likely to
continue to cause confusion or mistake, or to deceive consumers, the public, and the trade into
believing that the Counterfeit Products are genuine or authorized products of Grace.
30.
Upon information and belief, Amazon has acted with knowledge of Grace's
ownership of the MICROPLANE Trademarks and with deliberate intention or willful blindness
to unfairly benefit from the incalculable good will inherent in the MICROPLANE Trademarks.
31.
Amazon's acts constitute trademark counterfeiting in violation of Section 32 of
the Lanham Act (15 U.S.C. 1114).

32.
Upon information and belief, Amazon intends to continue its infringing acts,
unless restrained by this Court.

33.
Amazon's acts have damaged and will continue to damage Grace.
34.
By reason of Amazon's acts, Grace has been irreparably harmed, and unless and
until Amazon is enjoined by this Court, Grace will continue to suffer irreparable damage and
injury for which it has no adequate remedy at law.
WHEREFORE, Grace respectfully requests the following relief:
A.
Judgment that Amazon has violated Sections 32 of the Lanham Act (15 U.S.C.
B.
An injunction enjoining preliminarily and permanently restraining Amazon, its
1114 );
officers, agents, employees, and all others acting in concert with it or participating with Amazon
from further infringement of the MICROPLANE Trademark;
C.
An award of statutory damages of $2,000,000 per counterfeit mark per type of
good sold, offered for sale, or distributed in accordance with Section 35 of the Lanham Act (15
U.S.C. 1117), or alternatively, ordering Amazon to account to and pay to Grace all profits
realized by their wrongful acts and also awarding Grace its actual damages, and also directing
that such profits or actual damages be trebled, in accordance with Section 35 of the Lanham Act
(15
u.s.c. 1117);
D.
Entry of an order awarding Grace its costs, attorney fees, investigatory fees, and
expenses to the fullest extent provided by Section 35 of the Lanham Act (15 U.S.C. 1117);
E.
Entry of an order awarding Grace pre-judgment interest on any damages awarded;
F.
Award such other relief as the Court may deem appropriate and just under the
and,
circumstances.
COUNT II: Trademark Infringement, 15 U.S.C. 1114
3 5.
36.
Amazon, without authorization from Grace, has used and is continuing to use
spurious designations that are identical to, or substantially indistinguishable from, the
MICROPLANE Trademark.
37.
The foregoing acts of Amazon are intended to cause, have caused, and are likely
to continue to cause confusion, mistake, and deception among consumers, the public, and the
trade as to whether Amazon's Counterfeit Products originate from, or are affiliated with,
sponsored by, or endorsed by Grace.
38.
Upon information and belief, Amazon has acted with knowledge of Grace's
ownership of the MICROPLANE Trademarks and with deliberate intention or willful blindness
to unfairly benefit from the incalculable goodwill symbolized thereby.
39.
Amazon's acts constitute trademark infringement in violation of Section 32 of the
Lanham Act (15 U.S.C. 1114).

40.
Upon information and belief, Amazon has made and will continue to make
substantial profits and gains to which it is not entitled, either in law or in equity.
41.

42.
Amazon's acts have damaged and will continue to damage Grace, and Grace has
no adequate remedy at law.

A.
1114);
B.
C.
An award of damages to the fullest extent provided under Section 35(a) of the
Lanham Act (15 U.S.C. 1117(a));

D.
expenses to the fullest extent provided by Section 35 of the Lanham Act (15 U.S.C. 1117);
E.
Entry of an order awarding Grace pre-judgment interest on any damages
awarded; and,
F.
circumstances.
COUNT III: Unfair Competition I False Designation of Origin, 15 U.S.C. 1125(a)
43.
44.
Amazon's promotion, advertising, distribution, sale, and/or offering for sale of the
Counterfeit Products is intended, and is likely to confuse, mislead, or deceive consumers, the
public, and the trade as to the origin, source, sponsorship, or affiliation of the Counterfeit
Products, and is intended, and is likely to cause such parties to believe in error that the
Counterfeit Products have been authorized, sponsored, approved, endorsed or licensed by Grace.
45.
The foregoing acts of Amazon constitute a false designation of origin, and false
and misleading descriptions and representations of fact, all in violation of Section 43(a) of the
Lanham Act (15 U.S.C. 1125(a)).
46.
substantial profits and gains to which they are not entitled, either in law or in equity.
4 7.

48.

A.
B.
1114);
C.
An award of damages to the fullest extent provided under Section 35(a) of the
Lanham Act (15 U.S.C. 1117(a));
D.
expenses to the fullest extent provided by Section 35 of the Lanham Act ( 15 U.S. C. 111 7);
E.
Entry of an order awarding Grace pre-judgment interest on any damages
awarded; and,
F.
A ward such other relief as the Court may deem appropriate and just under the
circumstances.
COUNT IV: Common Law Trademark Infringement
49.
50.
Amazon's promotion, advertising, distribution, sale, and/or offering for the
Counterfeit Products is intended, and is likely to confuse, mislead, or deceive consumers, the
public, and the trade as to the origin, source, sponsorship, or affiliation of the Counterfeit
10
Products, and is intended, and is likely to cause such parties to believe in error that the
Counterfeit Products have been authorized, sponsored, approved, endorsed or licensed by Grace.
51.
Amazon's acts constitutes misappropriation for itself the commercial value of the
MICROPLANE mark, and for its own benefit, is unfairly trading on the valuable goodwill,
business property and reputation developed by Grace and in Grace's exclusive use of the
MICROPLANE mark.
52.
Amazon's acts constitute infringement in violation of Grace's rights under the
common law of the State of Arkansas.

53.
Upon information and belief, Amazon's infringement of the MICROPLANE
mark is willful and deliberate.

54.
substantial profits and gains to which they are not entitled, either in law or in equity.
55.

56.

A.
Judgment that Amazon has violated Grace's common law trademark rights in the
MICROPLANE mark;
B.
11
C.
An award of damages to the fullest extent provided under Arkansas common law,
including Grace's costs and attorney fees; and

D.
circumstances.
COUNT V: Arkansas Deceptive Trade Practices Act
1.
2.
Amazon's promotion, advertising, distribution, sale, and/or offering for the
Counterfeit Products constitutes a knowing false representation as to the source, sponsorship,

approval and quality of the Counterfeit Products, as Grace has put Amazon on notice of the
Counterfeit Products, but upon information and belief the sale of these Counterfeit Products
continues.
3.

4.
Amazon's acts as alleged herein constitute violations of the Arkansas Deceptive
Trade Practices Act, 2010 Arkansas Code 4-88-107.

A.
Judgment that Amazon has violated the Arkansas Deceptive Trade Practices Act,
2010 Arkansas Code 4-88-107;

B.
C.
An award of damages to the fullest extent provided under Arkansas law,
including Grace's costs and attorney fees; and
12
D.
circumstances.
DEMAND FOR JURY TRIAL

Grace demands a trial by jury.
Dated: October 19, 2015

R. Michael Azzi (P74508)
WARNER NORCROSS & JUDD LLP
900 Fifth Third Center
111 Lyon Street, N.W.
Grand Rapids, Michigan 49503-2487
616.752.2000
Attorneys for Plaintiff
13
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MICROPLANE
Word Mark
Goods and
Services
Standard
Characters
Claimed
Mark
Drawing
Code
Serial
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Filing Date
Current
Basis
Original
Filing Basis
Published
for
MICROPLANE
IC 021. US 002 013 023 029 030 033 040 050. G & S: household utensils, namely,
hand operated spice and cheese graters and fruit peel grater used as a zester.
FIRST USE: 20001214. FIRST USE IN COMMERCE: 20001214
(4) STANDARD CHARACTER MARK

85462243
November 2, 2011
1A
A
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Opposition
Registration
4193532
Number
~:;~stration August 21, 2012

Owner
Attorney of
Record
Type of
Mark
Register
Live/Dead
Indicator
(REGISTRANT) GRACE MANUFACTURING INC. CORPORATION ARKANSAS

614 SR 247 Russellville ARKANSAS 728128408
Dennis 8. Haase
TRADEMARK
PRINCIPAL
LIVE
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Word Mark
Goods and
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Mark Drawing
Code
Serial Number
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Current Basis
Original Filing
Basis
Published for
Opposition
MICRO PLANE
IC 008. US 023. G & S: manually-operated chemically etched cutting
tools; namely, hacksaw blades, sheet metal files, sheet metal rasps,
hand-held carving tools, and shaving blades, all for non-metallic
materials. FIRST USE: 19910726. FIRST USE IN COMMERCE:
19910726
(1) TYPED DRAWING
74235671
January 7, 1992
1A
1A
September 1, 1992
1734414
file:///C:/Users/powersb/Desktop/1734414.html
10119/2015
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0928014
November 24, 1992
(REGISTRANT) GRACE MANUFACTURING, INC. CORPORATION
ARKANSAS 614 SR 247 RUSSELLVILLE ARKANSAS 72802
DENNIS B. HAASE
TRADEMARK
PRINCIPAL
SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20120626.
2ND RENEWAL 20120626
LIVE
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Goods and IC 007. US 023. G & S: chemically etched cutting tools; namely, food processor
Services
blades, rotary-powered cutting/sanding discs and drums. FIRST USE: 19920210.
FIRST USE IN COMMERCE: 19920501
Mark
(1) TYPED DRAWING
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Current
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Owner
March 23, 1993

(REGISTRANT) GRACE MANUFACTURING, INC. CORPORATION ARKANSAS
614 SR 247 RUSSELLVILLE ARKANSAS 72802
Attorney of DENNIS B. HAASE

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TRADEMARK
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SECT 15. SECT 8 (6-YR). SECTION 8(10-YR) 20121117.
2ND RENEWAL 20121117
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MICROPLANE
IC 008. US 023 028 044. G & S: pedicure implements, namely, foot files.
FIRST USE: 20040415. FIRST USE IN COMMERCE: 20040415
(4) STANDARD CHARACTER MARK

76671956
January 29, 2007
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0969882
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Registration Date February 5, 2008

(REGISTRANT) Grace Manufacturing Inc. CORPORATION ARKANSAS
Owner
614 SR 247 Russellville ARKANSAS 728128408
Attorney of
DENNIS B. HAASE
Record
Prior
1734414; 1759478
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TRADEMARK
PRINCIPAL
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Affidavit Text
SECT 15. SECT 8 (6-YR).
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FILED

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 1 of 22U.S

EASTERN DISTRICT ARKANSAS

UNITED STATES DISTRICT COURT

Case No. 4:15-cv-(

GRACE MANUFACTURING, INC.,

COMPLAINT AND JURY DEMAND

R. Michael Azzi (MI Bar No. 74508)

This case 1ssigned to District Judge

Plaintiff Grace Manufacturing, Inc. brings its Complaint against Defendant

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

Plaintiff Grace Manufacturing, Inc. ("Grace") is an Arkansas corporation having

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 2 of 22

Upon information and belief, Defendant Amazon.com, Inc. ("Amazon") is a

Venue is proper in this District under 28 U.S.C. 1391.

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 3 of 22

Grace is the owner of the following United States Federal Trademark

Registrations (hereinafter collectively referred to as the "MICROPLANE Trademarks"):

MICRO PLANE 21 for household utensils, namely, August 21, 2012

MICROPLANE 7 for chemically etched cutting tools; March 23, 1993

8 for manually-operated chemically November 24, 1992

8 for pedicure implements, namely, February 5, 2008

These registrations are valid, subsisting, in full force and effect.

conclusive evidence of Grace's exclusive right to use the MICROPLANE Trademarks in

ownership and exclusive rights in the MICROPLANE Trademarks.

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 4 of 22

The MICROPLANE Trademarks at issue in this case have been continuously

used and have never been abandoned.

advertising, and otherwise promoting the MICROPLANE Trademarks. As a result, products

Upon information and belief, Amazon is engaged in advertising, promoting,

By way of example, on or around September 10, 2015, a representative of Grace

On or around September 17, 2015, a representative of Grace ordered six

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 5 of 22

Each of the purchased zesters in question featured the MICROPLANE

Trademark and were studied imitations of Grace's MICRO PLANE zester.

At least as early as September 23, 2015, Grace informed Amazon's

Again, on or around September 30, 2015 a representative of Grace purchased a

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 6 of 22

Grace is suffering irreparable injury, has suffered substantial damages as a result

of Amazon's activities, and has no adequate remedy at law.

Grace incorporates by reference all preceding paragraphs.

Amazon's acts constitute trademark counterfeiting in violation of Section 32 of

the Lanham Act (15 U.S.C. 1114).

unless restrained by this Court.

Amazon's acts have damaged and will continue to damage Grace.

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 7 of 22

An injunction enjoining preliminarily and permanently restraining Amazon, its

An award of statutory damages of $2,000,000 per counterfeit mark per type of

Entry of an order awarding Grace pre-judgment interest on any damages awarded;

Grace incorporates by reference all preceding paragraphs.

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 8 of 22

Amazon's acts constitute trademark infringement in violation of Section 32 of the

Lanham Act (15 U.S.C. 1114).

unless restrained by this Court.

no adequate remedy at law.

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 9 of 22

An injunction enjoining preliminarily and permanently restraining Amazon, its

Lanham Act (15 U.S.C. 1117(a));

Entry of an order awarding Grace pre-judgment interest on any damages

Grace incorporates by reference all preceding paragraphs.

Case 4:15-cv-00649-JM Document 1 Filed 10/20/15 Page 10 of 22

unless restrained by this Court.

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