Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 1 of 19 Page ID #:1
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`Marina Lang, Cal. Bar No. 251,087 mlang@socalip.com
`Michael D. Harris, No. 59,470 mharris@socalip.com
`Brian S. Tamsut, No. 322,780 btamsut@socalip.com
`SOCAL IP LAW GROUP LLP
`310 North Westlake Blvd., Suite 120
`Westlake Village, CA 91362-3788
`Phone: (805) 230-1350 • Fax: (805)-230-1355
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`Attorneys for Plaintiff Outer Aisle Gourmet LLC
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA—WESTERN DIVISION
`Case No. 2:20-cv-8544
`Complaint for:
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`(1) LANHAM ACT TRADE DRESS IN-
`FRINGMENT [15 U.S.C. § 1125(a)(3)];
`(2) COPYRIGHT INFRINGEMENT [17 U.S.C
`§ 501];
`(3) LANHAM ACT UNFAIR COMPETITION
`[15 U.S.C. § 1125(a)];
`(4) UNFAIR BUSINESS PRACTICES [Cal.
`Bus. & Prof. Code § 17200];
`(5) FEDERAL TRADEMARK INFRINGE-
`MENT [15 U.S.C.§1114/ Lanham Act § 43(a)].
`
`Demand for Jury Trial
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`Outer Aisle Gourmet, LLC, a
`Delaware Limited Liability
`Company
` Plaintiff,
` v.
`Cali’Flour Foods, LLC, a
`California Limited Liability
`Company
` Defendant.
`
`NATURE OF THE ACTION
`1. Plaintiff Outer Aisle Gourmet, LLC ( “Outer Aisle” or “Plaintiff”) brings
`this action for federal trade dress infringement, federal copyright infringement, federal
`unfair competition, California unfair business practices, and federal trademark in-
`fringement, against Cali’Flour Foods, LLC (“CF Foods” or “Defendant”). Collec-
`tively, Plaintiff and Defendant are called “the Parties.” Plaintiff alleges upon
`knowledge regarding its own acts and those it has witnessed, and upon information and
`belief, as follows:
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`Complaint for Copyright Infringement
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`Outer Aisle Gourmet v. Cali’flour Foods
`Case No.: 2:20-cv-8544
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`Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 2 of 19 Page ID #:2
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`A. PARTIES, JURISDICTION AND VENUE
`2. Plaintiff Outer Aisle is a Delaware Limited Liability Company, registered to
`do business in California, having a business address of 2879 Seaborg Avenue, Ventura,
`CA 93003.
`3. Defendant CF Foods is a California Limited Liability Company having its
`principal place of business at 1057 Village Lane, Chico, CA, 95926.
`4. This Court has subject matter jurisdiction over this action under 15 U.S.C.
`§ 1121 and 28 U.S.C. §§ 1331 and 1338(a) and (b) because Plaintiff’s federal claim
`arises under the Lanham Act, 15 U.S.C. § 1051 et seq. and the Copyright Act 17 U.S.
`Code §  501 et seq. This Court has subject matter jurisdiction over Plaintiff’s related
`common law of California claims under 28 U.S.C. § § 1338(b) and 1367 because the
`state law claims relate to claims for unfair competition.
`5. This court has personal jurisdiction over the Defendant because the Defend-
`ant does business in California and in this district by advertising and selling goods in
`this district or by putting goods into the stream of commerce so the goods will be sold
`in this district and because at least some of the infringing acts that are the subject of
`this complaint occurred in this state. Defendant conducts business in the jurisdiction of
`the United States District Court for the Central District of California by offering goods
`for sale in Los Angeles, Ventura and Santa Barbara counties, California that infringe
`Plaintiff’s trade dress and copyright.
`6. Venue is proper in this district under 28 U.S.C. § § 1391(b), (c) and (e) be-
`cause Defendant is a corporation and is subject to personal jurisdiction in California
`and, on information and belief, a substantial part of the events or omissions causing the
`claim occurred in this judicial district, and has caused damages to Plaintiff in this dis-
`trict. Defendant purposefully advertises, sells, and distributes infringing products in
`this district and in California. Defendant’s actions within this district directly interfere
`with and damage Plaintiff’s commercial efforts and endeavors and harms Plaintiff’s
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`Complaint for Copyright Infringement
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`Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 3 of 19 Page ID #:3
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`goodwill within this venue. Plaintiff also conducts substantial business within this
`venue.
`B. BACKGROUND
`7. Santa Barbara, California based Outer Aisle has been innovating health-con-
`scious foods for retail and wholesale distribution throughout the United States since
`2013. They launched the nation’s first cauliflower-based “sandwich thins” and cauli-
`flower-based “pizza crust,” which firmly planted their brand in global news and their
`products on the shelves of prominent national, natural foods and gourmet grocery store
`chains, such as Whole Foods, Meijer and Albertsons/Safeway. Outer Aisle creates rev-
`olutionary food products that are well known for being plant-based, gluten-free, keto-
`friendly, grain-free, flourless, nut free, soy free, low in calories, carbs, and fat, and
`loaded with nutrients but containing no artificial ingredients. Outer Aisle has earned
`nationwide and global recognition for re-creating America’s favorite, every-day foods,
`from fresh vegetables and other natural simple ingredients.
`8. Outer Aisle’s revolutionary cauliflower-based food products have distinc-
`tive packaging protected under federal and state trade dress and copyright law. Outer
`Aisle’s acclaimed products are packaged in originally configured, creatively designed,
`visually distinctive “pouches” that feature custom color-schemes, color-blocking, de-
`signs, stylization, layout, fonts, shapes, banners, and a uniquely shaped transparent
`window that allow consumers to see the product in the package, for example:
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`9. Because of Outer Aisle’s extensive use of this distinctive trade dress on its
`products, and on its website and in advertising, Outer Aisle enjoys national recognition
`and goodwill in this trade dress. Outer Aisle’s product packaging is protected under
`Complaint for Copyright Infringement
`Outer Aisle Gourmet v. Cali’flour Foods
`Case No.: 2:20-cv-8544
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`Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 4 of 19 Page ID #:4
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`trade dress laws with its original configuration, articulated design and inherently dis-
`tinctive combination of color, shapes, stylized wording, material, texture, and illustra-
`tive elements that are inherently distinctive. Outer Aisle invested substantial resources
`to innovate a visually distinct, stand-out, uniquely configured, unusual, commercially
`impressive, product packaging, which is also registered with the United States Copy-
`right Office. Outer Aisle’s unique designs, widespread sales, and national advertising
`lead the public to understand that the plaintiff’s trade dress signifies Outer Aisle as the
`source of its products. In the food industry, visual aesthetics and appearance are essen-
`tial for making products distinctive and for building brand recall. The innovative trade
`dress of Outer Aisle’s products serves to distinguish their goods from competing prod-
`ucts of other manufacturers in the online marketplace and on the shelves of food stores.
`10. Defendant CF Foods is a relative newcomer to the “cauliflower foods” mar-
`ket. Around mid-2016, they began their business by selling and promoting a “cauli-
`flower pizza crust” product, which could be ordered online or found at a few pizza
`restaurants local to their place of business in the Chico, California area. Their product
`was the size of a traditional pizza crust, and it was packaged in a simple white pizza
`box promoted for sale alongside a pizza pan, as shown below:
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`11. In or around 2019, defendant CF Foods announced the upcoming launch of
`a second product, which it called “Cauliflower Flatbreads”. They announced and dis-
`played their product packaging for this upcoming product on their site as follows:
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`Complaint for Copyright Infringement
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`Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 5 of 19 Page ID #:5
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`12. The defendant’s announcement of this new product label caught the atten-
`tion of Outer Aisle, because it used a trademark similar to Outer Aisle’s “FRESH AND
`SIMPLE” trademark, erroneously stated that it was the “Original”, and prominently
`displayed a stylized “3g” in a font, size and layout similar to Outer Aisle’s label. Outer
`Aisle also discovered around this time that CF Foods was engaging in advertising cam-
`paigns modeled after Outer Aisle’s advertising campaigns. For example:
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`13. Through its counsel, Outer Aisle has sent letters to Defendant CF Foods de-
`manding they cease developing and promoting similar product labels and advertising
`campaigns.
`14. Irrespective of the plaintiff’s requests, Defendant continued and continues
`developing and promoting similar product labels and advertising campaigns for the
`purpose of benefiting from and trading off Outer Aisle’s pre-established consumer
`recognition, fame, goodwill, and reputation.
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`Complaint for Copyright Infringement
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`Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 6 of 19 Page ID #:6
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`15. In or around May 2020, defendant CF Foods launched new product labels
`and advertising that demonstrate undisputed trade dress, trademark, and copyright in-
`fringement, necessitating the instant lawsuit. CF Foods now has virtually the same de-
`sign, features, shape, colors, and configuration as Outer Aisle’s products. The similar-
`ity between essential features of both party’s designs is obvious, as evidenced by one,
`of many, examples shown below, and therefore this court must enjoin the defendant
`from offering such egregious competing trade dress meant to cause consumer confu-
`sion:
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`16. Defendant CF Foods is selling inferior but competing cauliflower products
`with packaging and advertising that intentionally imitates Outer Aisle’s well-known
`label, protected trade dress, and other intellectual property rights, for the sole purpose
`of benefiting from and trading off Outer Aisle’s pre-established consumer recognition,
`fame, goodwill, and reputation. The defendant has a total disregard of the harm it
`caused and causes to Outer Aisle.
`17. Despite notice, the defendant continues to publish content and sell and pro-
`mote products that violate Outer Aisle’s exclusive intellectual property rights. Defend-
`ant unfairly and unlawfully competes in the marketplace by trading off the hard-earned
`reputation and goodwill of Outer Aisle by copying Outer Aisle’s products, packaging,
`trade dress, marks, and advertising campaigns.
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`Complaint for Copyright Infringement
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`18. CF Foods’ products are likely to cause consumers, the public and the trade
`to erroneously believe the goods they sell emanate or originate from Outer Aisle, or
`that Outer Aisle authorized, sponsored, or approved the goods.
`19. This confusion causes irreparable harm to Outer Aisle and weakens the dis-
`tinctive quality of Outer Aisle’s brand and products. Defendant engages in trade dress
`infringement, federal copyright infringement, federal unfair competition, unlawful
`California business practices, and federal trademark infringement, by imitating and
`copying the Plaintiff’s website, products, product names, advertising, packaging, and
`other unique designs, layout, color schemes, and wording that make up the distinctive
`total image and appearance of Outer Aisle, and the plaintiff seeks injunctive relief,
`damages, treble damages, and its attorney’s fees and costs, and other relief authorized
`under federal and state law.
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`FIRST CLAIM FOR RELIEF
`TRADE DRESS INFRINGEMENT
`20. Plaintiff incorporates by reference the other allegations set forth elsewhere
`in this Complaint.
`21. Since its start in 2013, Outer Aisle Gourmet has grown to become a massive
`food provider exploding in popularity among health-conscious consumers. Outer Aisle
`and its product have been featured in news outlets across the country such as CNN,
`Huffington Post, Women’s Health and many more. Outer Aisle was also recently
`ranked the #1 fastest growing food company in the U.S. by Inc. Magazine.
`22. Outer Aisle sells its products via its website, brick and mortar stores, natural
`foods and gourmet grocery chains, traditional grocery chains, and various online re-
`tailers like Amazon.com.
`23. Outer Aisle maintains a robust social media presence with a heavy follow-
`ing. Outer Aisle invests substantial resources to develop and create animated advertis-
`ing campaigns on Instagram and other social media sites, which are viewed by its cus-
`tomers, fans, and potential consumers.
`Complaint for Copyright Infringement
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`24. Outer Aisle’s success as a leader in the health food space is due not only to
`its innovative products, but its distinctive packaging and advertising campaigns that
`utilize its unique trade dress and copyrights. In connection with its cauliflower product
`line, Outer Aisle has developed a trade dress which is essential to its business and to
`customers’ identification of Outer Aisle as the source of the products (“Outer Aisle
`Trade Dress”). The Outer Aisle Trade Dress is inherently distinctive or has acquired
`distinctiveness such that consumers recognize it as a source identifier and not mere
`ornamentation.
`25. Plaintiff’s goods are advertised, sold, and packaged with the distinctive
`Outer Aisle Trade Dress, which consists of a combination of individual features, in-
`cluding, but not limited to, a unique and arbitrary color combination, creative use of
`lines and shapes, a signature semi-circle transparent product window, photorealistic
`cauliflower drawings, stylized font, and an arbitrary layout that have become popular-
`ized and identified in consumers’ minds with Outer Aisle’s products.
`26. Through substantial investment, promotional and advertising efforts, the
`overall appearance of Outer Aisle’s cauliflower food products has become widely
`known and recognized, and the trade dress of its niche product line has acquired sec-
`ondary meaning. Outer Aisle’s cauliflower food products, which all use the same dis-
`tinctive trade dress, is distinctive because it is associated with Outer Aisle’s brand,
`which has gained significant recognition, goodwill, and accolades in the gourmet gro-
`cery and health foods industry.
`27. In or around the last twelve (12) months, defendant CF Foods re-branded its
`packaging, labels, trademarks, website, and advertising, to willfully imitate and copy
`Outer Aisle, including copying the Outer Aisle Trade Dress.
`28. CF Foods makes pre-packaged cauliflower products that attempt to appeal
`to, and are directed to, the same class of consumers of that of Outer Aisle, and they are
`displayed at the retail level located physically near each other.
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`Complaint for Copyright Infringement
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`29. The defendant’s product packaging, website, and advertising campaigns are
`centered around colors, names, phrases, configurations, layouts, images and ideas that
`are similar to the Outer Aisle Trade Dress and to the manner in which the Outer Aisle
`Trade Dress has been used. The defendant intentionally copies the overall appearance
`and marketing approach used by Outer Aisle to confuse the public and the trade.
`30. The defendants have caused and are likely to continue causing consumer
`confusion or mistake by falsely suggesting that their CF Foods’ infringing products are
`connected with, sponsored by, affiliated with, approved by, or related to Outer Aisle
`with its infringement and use of the Outer Aisle Trade Dress.
`31. CF Foods’ sale of competing products under Outer Aisle’s Trade Dress con-
`stitutes trade dress infringement in violation of 15 U.S.C. § 1125(a).
`32. Outer Aisle’s Trade Dress consists of a unique and innovative “pouch” prod-
`uct configuration with a large product viewing window centered in the shape of a half-
`moon. The Outer Aisle Trade Dress also utilizes bright colors displayed in several
`tones with color blocking techniques, a blue/green background, and accents of orange.
`Also, a thick, rectangular, linear, solid colored banner spreads across the top of the
`package (appearing in either solid yellow, salmon, or neutral white depending on the
`flavor). Centered in the front of the pouch is a large, cleverly designed, transparent
`window in the shape of a semi-circle that allows consumers to see the product inside.
`Stylized wording also in the shape of a semi-circle, appears above the transparent win-
`dow. A white banner is centered below transparent window. In one corner of the pouch
`in bolded stylized font, appears “3g” to state the grams associated with net carbs per
`unit. In another corner of the packaging in bolded stylized font appears “2” as the serv-
`ing of vegetables. The packaging also displays a portion of a photorealistic cauliflower
`head with two different sized green leaves poking out. The Outer Aisle Trade Dress
`consists of a unique and arbitrary color combination, scheme and layout, as well as an
`innovative “pouch” and “product viewing window” product configuration, creative use
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`Complaint for Copyright Infringement
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`of lines and shapes, photorealistic cauliflower drawings dominantly placed and con-
`trasted with green leaves, stylized font, sizing and wording, and an arbitrary layout that
`has become identified in the relevant product market, to the exclusion of competitors,
`with Outer Aisle’s products. Outer Aisle enjoys national recognition and goodwill in
`this trade dress.
`33. Defendant CF Foods’ intentionally copies Outer’s Aisle’s highly recogniza-
`ble and distinctive trade dress to trade off Outer Aisle’s goodwill, reputation, and to
`confuse and deceive the public about the source of products. Some side by side com-
`parisons appear below:
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`34. At a minimum, Defendant substantially copied Outer Aisle’s:
`(1) Blue/green color scheme with orange accents.
`(2) Color blocking techniques.
`(3) Linear rectangular borders and shapes
`(4) Unique and original “pouch” product configuration.
`(5) Unique and original product configuration featuring a semi-circle
`product viewing window centered in the middle of the pouch.
`(6) Location, size, design, stylization, display, and impression of banners.
`Complaint for Copyright Infringement
`Outer Aisle Gourmet v. Cali’flour Foods
`Case No.: 2:20-cv-8544
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`(7) Location, size, font, design, stylization, display, and impression of text
`and wording.
`(8) Location, size, font, design, stylization, display, and impression of
`curved text and wording.
`(9) Location, size, font, color, design, stylization, display, and impression
`of border ribbons in the colors of salmon, yellow and white.
`(10) Location, size, color, design, stylization, and display of the actual
`product appearing textured, in the shape of a half-circle, in tons of yellow,
`gold, orange, and brown.
`(11) The use, font, display, location, stylization, and impression of “2g”
`and “3g”.
`(12) The prominent display, location, stylization, and impression of pho-
`torealistic cauliflowers contrasted with two bright green leaves protruding
`out.
`35. Outer Aisle and Defendant’s products would appeal to and are directed to
`the same class of consumers and are displayed at the retail level located near each other.
`36. The defendant’s sale of infringing products constitutes trade dress infringe-
`ment in violation of 15 U.S.C. § 1125(a).
`37. CF Foods’ infringing activities have caused, and unless enjoined by this
`Court, will continue to cause, irreparable injury and other damage to Outer Aisle’s
`business reputation and to the goodwill associated with Outer Aisle’s trade dress, in-
`cluding but not limited to, diversion of customers, lost sales and lost profits. Plaintiff
`Outer Aisle has no adequate remedy at law.
`SECOND CLAIM FOR RELIEF
`COPYRIGHT INFRINGEMENT 17 U.S.C. § 501
`38. Plaintiff Outer Aisle incorporates by reference the other allegations set forth
`elsewhere in this Complaint.
`39. This court has subject matter jurisdiction under 28 U.S.C. 1338(a).
`Complaint for Copyright Infringement
`Outer Aisle Gourmet v. Cali’flour Foods
`Case No.: 2:20-cv-8544
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`Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 12 of 19 Page ID #:12
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`40. Plaintiff Outer Aisle owns a valid federal copyright for its original, distinc-
`tive, unique, creative, and artistic product packaging at Copyright Registration VA 2-
`211-399, a copy of which is attached as Exhibit 1 and incorporated by reference.
`41. Outer Aisle’s copyright is for its label and packaging design that include its
`unusual packaging configuration, artistic graphical choices, unique color blocking, an
`original semi-circle product viewing “window,” cleverly placed and uniquely shaped
`banners, original photorealistic illustrations of cauliflowers, and intentionally and cre-
`atively arranged and sized frames, shapes, borders, font, color, designs, stylization,
`display, and impression that are original and create a unified original and creative work.
`42. Defendant has committed copyright infringement by copying constituent el-
`ements of Outer Aisle’s original protected work.
`43. Defendant’s infringement was willful, because it copied Outer Aisle’s orig-
`inal work knowing that its conduct constitutes an act of infringement.
`44. Slight differences in color or size and uncopyrightable wording/lettering is
`no defense to Defendant’s infringing conduct.
`45. Outer Aisle’s original work was published in early 2019 on the Internet. At
`the time of Outer Aisle’s publication of its original creative work, the designs and la-
`bels used by Defendant for its competing cauliflower food products did not resemble,
`copy, or look like the Outer Aisle’s protected original work.
`46. Approximately one (1) year after publication of Outer Aisle’s protected cop-
`yright, Defendant CF Foods, without permission, intentionally and knowingly repro-
`duced, counterfeited, copied, displayed, altered and manufactured Outer Aisle’s pro-
`tected work by offering, advertising, promoting, retailing, selling and distributing its
`cauliflower food products in product packaging and related promotional and advertis-
`ing content copying the artwork and protected copyrightable material in Outer Aisle’s
`original work. The defendant had access to Outer Aisle’s copyright from the Internet.
`47. Defendant CF Foods copied Outer Aisle’s artwork protected under the cop-
`yright for its own commercial gain and placed it on its own labels, packaging, and
`Complaint for Copyright Infringement
`Outer Aisle Gourmet v. Cali’flour Foods
`Case No.: 2:20-cv-8544
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`Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 13 of 19 Page ID #:13
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`advertising to be confusingly similar to Plaintiff Outer Aisle’s copyrighted artistic
`graphical choices, unique color blocking, original semi-circle product viewing “win-
`dow,” arbitrarily placed, stylized, sized and uniquely shaped banners, original photo-
`realistic illustrations of cauliflowers contrasted with jutting green leaves, and inten-
`tionally placed and differently sized frames, borders, texts and shapes that are original
`to Outer Aisle and protected under their federal copyright registration.
`48. Plaintiff suffered damages. Because of Defendant’s copyright infringement,
`they earned profits they otherwise would not have earned. The amount is unknown, but
`it is believed to exceed $250,000.
`49. Plaintiff is also entitled to statutory damages under 17 U.S.C. § 504 of at
`least $30,000 per infringing work. Because defendants’ infringement was willful, they
`are liable for statutory damages of $150,000 under 17 U.S.C. § 504(c)(2).
`THIRD CLAIM FOR RELIEF
`LANHAM ACT UNFAIR COMPETITION
`50. Plaintiff incorporates by reference the other allegations set forth elsewhere
`in this Complaint as though set forth in this claim.
`51. This Court has subject matter jurisdiction under 15 U.S.C § 1125 because
`this is a claim for relief for unfair competition under the federal Lanham Act.
`52. Defendant’s use of Plaintiff’s trade dress, trademark, and copyright is an act
`of unfair competition under 15 U.S.C § 1125, because Defendant’s conduct uses a
`“name, symbol, or device, or any combination thereof” and “false designation of
`origin” that is likely to cause confusion and to deceive the public about the affiliation,
`connection, or association of Defendant’s product’s with Plaintiff’s products.
`53. Defendant has progressively, and unfairly, encroached into Outer Aisle’s
`market for cauliflower-based food products by using Outer Aisle’s copyright, trade-
`mark, and trade dress, and by making its online marketplace and products confusingly
`similar to those of Outer Aisle.
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`Complaint for Copyright Infringement
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`Outer Aisle Gourmet v. Cali’flour Foods
`Case No.: 2:20-cv-8544
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`54. Before unfairly competing with Outer Aisle through conduct mentioned in
`this Complaint, Defendant’s product packaging and actual products differed greatly
`from what they are now, because they intend to unfairly compete with Outer Aisle, as
`demonstrated by the summary timeline below:
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`55. Defendant CF Foods is now selling product as a direct competitor to the
`Outer Aisle product line in packages and advertising intended to create the same com-
`mercial impression conveyed by the Outer Aisle packaging. Defendants are using the
`imposter trade dress across their entire product line to create the same general overall
`impression and the same “look and feel” of the Outer Aisle brand.
`56. As a proximate and foreseeable result of Defendant’s violations of the Lan-
`ham Act, Outer Aisle has been damaged in an amount presently unknown. Defendant
`may have also unjustly earned profits that but for their acts complained of here, they
`would not have earned. Outer Aisle is suffering and will continue to suffer irreparable
`harm for which Outer Aisle has no adequate remedy at law. Unless the court restrains
`Defendant from continuing these wrongful acts, the damage to Outer Aisle will in-
`crease.
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`Complaint for Copyright Infringement
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`Outer Aisle Gourmet v. Cali’flour Foods
`Case No.: 2:20-cv-8544
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`Case 2:20-cv-08544 Document 1 Filed 09/17/20 Page 15 of 19 Page ID #:15
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`FOURTH CLAIM FOR RELIEF
`CALIFORNIA BUSINESS & PROFESSIONS CODE § 17200
`57. Plaintiff incorporates by reference each of the other allegations set forth
`elsewhere in this Complaint as though set forth in this claim.
`58. Defendant has engaged in unfair competition under the Cal. Bus. & Prof.
`Code § 17200 by engaging in unlawful and unfair conduct, as described above and in
`this claim for relief. Defendant consciously redesigned its website, product-lines, prod-
`uct names, web pages, online content, advertising, social media, product packing, and
`labels to imitate and copy that of Outer Aisle’s to create a likelihood of confusion in
`the health foods and gourmet grocery marketplace. Defendant’s acts are calculated to
`blur the distinction between their company and products and Outer Aisle’s well-known
`company and famed cauliflower-based food products.
`59. In addition to all the unlawful acts alleged throughout this Complaint, the
`defendant purchases, bids, or registers search engine key words, AdWords, search
`terms or other identifying terms that include Plaintiff’s business name and protected
`trademark “Outer Aisle” and variations thereof (including, but not limited to, any mis-
`spelled or deceptively similar terms) for use in any search engine, portal, sponsored
`advertising service, or other search or referral service in order to re-direct customers
`searching for Outer Aisle products to their own webpages. Defendant’s purchase of
`Outer Aisle’s trademarks causes harm to Outer Aisle because consumers will purchase
`the defendant’s products under the mistaken belief that they purchased products ema-
`nating from Outer Aisle, and it increases the keyword purchase costs Outer Aisle incurs
`when purchasing its own marks as keywords.
`60. Outer Aisle has been and will continue to suffer damages and irreparable
`harm because of Defendant’s unfair competition unless defendants are enjoined from
`engaging in further such acts. As a proximate and foreseeable result of Defendant’s
`violations of the California unfair competition law, Outer Aisle has been damaged in
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`Complaint for Copyright Infringement
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`Outer Aisle Gourmet v. Cali’flour Foods
`Case No.: 2:20-cv-8544
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`an amount presently unknown. Defendant may have also unjustly earned profits that
`but for their acts complained of here, they would not have earned.
`FIFTH CLAIM FOR RELIEF
`FEDERAL TRADEMARK INFRINGEMENT
`61. Outer Aisle hereby incorporates by reference each of the other allegations
`set forth elsewhere in this Complaint as though fully set forth in this claim.
`62. Since at least as early as June 5, 2018, Outer Aisle has been using the mark
`FRESH & SIMPLE™ continuously on its high quality cauliflower-based “sandwich
`thins” and cauliflower-based “pizza crust”, throughout this district and California and
`outside the state in interstate commerce. Over the past several years, Outer Aisle has
`devoted substantial resources to promoting the goodwill of all its trademarks, including
`its FRESH & SIMPLE trademark. As a result, Outer Aisle has developed strong brand
`recognition in its FRESH & SIMPLE mark, and consumers associate this brand with
`Outer Aisle’s gourmet grocery food products.
`63. Outer Aisle developed strong brand recognition in its FRESH & SIMPLE
`mark because it was the first in its industry to develop products from actual fresh in-
`gredients, as opposed to dried or frozen. The company’s “OUTER AISLE” name was
`inspired by the fact it was the first to offer “fresh and simple” ingredients in the “outer
`aisles” of food stores in the refrigerated section near the other fresh foods.
`64. Outer Aisle owns United States Trademark Application Serial No. 90155293
`for the mark FRESH & SIMPLE in International Class 029 for “Vegetable-based snack
`foods; prepared meals consisting primarily of vegetables; vegetable souffles” and in
`International Class 030 for “Dough; Sandwiches; Tortillas; Bakery products; Bread
`bases; Bread mixes; Bread rolls; Crusty rolls; Flat bread; Glu