Case 2:20-cv-09167 Document 1 Filed 10/06/20 Page 1 of 14 Page ID #:1
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`MICHAEL M. VASSEGHI (SBN 210737)
`michael.vasseghi@roll.com
`ROLL LAW GROUP PC
`11444 West Olympic Boulevard
`Los Angeles, California 90064-1557
`Telephone: (310) 966-8400
`Facsimile:
`(310) 966-8810
`Attorneys for Plaintiff
`SUTERRA LLC
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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`SUTERRA LLC, a Delaware limited
`liability company,
`Plaintiff,
`
`vs.
`MOSAIC AG INNOVATION
`SOLUTIONS, LLC, a Delaware limited
`liability company, and DOES 1 through
`10, inclusive,
`Defendants.
`
`Case No. 2:20-cv-9167
`COMPLAINT FOR:
`FEDERAL TRADEMARK
`INFRINGEMENT; VIOLATION OF
`THE LANHAM ACT § 43(A);
`UNFAIR COMPETITION UNDER
`CALIFORNIA BUSINESS &
`PROFESSIONS CODE § 17200 ET
`SEQ.
`DEMAND FOR TRIAL BY JURY
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`COMPLAINT
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`Case 2:20-cv-09167 Document 1 Filed 10/06/20 Page 2 of 14 Page ID #:2
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`Plaintiff Suterra LLC (“Suterra”) hereby alleges as follows:
`PARTIES
`1.
`Suterra is the manufacturer of products bearing the infringed
`SUTERRA trademarks at issue in this case as well as the owner of the intellectual
`property rights for the SUTERRA trademarks.
`2.
`Suterra sells agricultural products focusing on environmentally
`sustainable pest control in over 30 states including in California.
`3.
`Suterra is informed and believes and thereon alleges that Defendant
`MOSAIC AG INNOVATION SOLUTIONS, LLC (“Mosaic” or “Defendant”) is
`also involved in the manufacture and sale of agricultural products, including
`fertilizer, under the SUSTERRA mark.
`4.
`According to a September 30, 2020, article in agrobusiness.com – an
`online publication geared towards agricultural news – the SUSTERRA product is or
`will be “available via retailers throughout the U.S.”
`5.
`In its 2017 10-K filing, Mosaic stated that “U.S. distribution operations
`also include leased distribution space or contractual throughput agreements in other
`key geographical areas such as California….”
`6.
`Suterra is not aware of the true names and capacities of the Defendants
`identified herein as Does 1 through 10, inclusive, and therefore fictitiously names
`said Defendants. Suterra will amend this Complaint to allege the true names and
`capacities of these fictitiously named Defendants when their identities are
`ascertained.
`7.
`Suterra is informed and believes, and based thereon alleges, that
`Defendant Mosaic and each of the fictitiously named Doe Defendants (collectively,
`“Defendants”) were in some manner responsible for the acts alleged herein and the
`harm, losses and damages suffered by Suterra as alleged hereinafter. Suterra is also
`informed and believes, and based thereon alleges, that while participating in such
`acts, each Defendant was the agent, principal, and/or alter ego of the other
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`Case 2:20-cv-09167 Document 1 Filed 10/06/20 Page 3 of 14 Page ID #:3
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`Defendants, and was acting in the course and scope of such agency and/or acted
`with the permission, consent, authorization or ratification of the other Defendants.
`8.
`Suterra is informed and believes, and based thereon alleges, that
`Defendants conduct business, and distribute the SUSTERRA product in California,
`within this Court’s jurisdiction.
`JURISDICTION AND VENUE
`9.
`This action arises, in part, under the Lanham Act, as amended, 15
`U.S.C. §§ 1114 and 1125, California Business and Professions Code § 17200 et seq.
`This Court has subject matter jurisdiction over this action pursuant to 15 U.S.C. §
`1121 (trademark infringement claims under the Lanham Act); 28 U.S.C. § 1331
`(federal question), 28 U.S.C. § 1338 (original jurisdiction of trademark claims and
`unfair competition claims related to same) and 28 U.S.C. § 1367 (supplemental
`jurisdiction).
`10. Suterra is informed and believes, and based thereon alleges, that venue
`is proper in this District pursuant to 28 U.S.C. §§ 1391(b) and 1391 (c) because a
`substantial part of the events giving rise to the claims occurred in this District.
`Additionally, Suterra is informed and believes, and based thereon alleges, that the
`Court has personal jurisdiction over Defendants because Defendants have
`distributed, and sought to distribute, the infringing SUSTERRA product in this
`District, and generally engage in business in this District.
`FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS
`11.
`In 2001 Suterra began manufacturing, marketing and selling products
`under the SUTERRA mark, and has done so continuously since then.
`12. Suterra has invested substantially in the development, production,
`marketing and sale of its products under the SUTERRA mark.
`13. Suterra owns two federally registered trademarks in the United States
`for SUTERRA in connection with the marketing and sale of its products in interstate
`commerce. One is for the standard character mark SUTERRA, (Registration No.
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`Case 2:20-cv-09167 Document 1 Filed 10/06/20 Page 4 of 14 Page ID #:4
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`2796835) and the other is SUTERRA and design (Registration No. 6062099),
`collectively the “SUTERRA Marks.”
`14. Suterra’s registrations are valid and subsisting, and Suterra owns all
`right, title and interest to the SUTERRA Marks. Registration No. 2796835 is
`incontestable pursuant to 15 U.S.C. Section 1065.
`15. Defendants had constructive notice of Suterra’s rights in its federally
`registered trademarks under 15 U.S.C. Section 1072, which states: “Registration of a
`mark on the principal register provided by this Act or under the Act of March 3,
`1881, or the Act of February 20, 1905, shall be constructive notice of the registrant’s
`claim of ownership thereof.”
`16. Mosaic also had actual notice of Suterra’s rights when Suterra sent
`Mosaic a letter on September 24, 2020, advising it of Suterra’s rights.
`17. Suterra has devoted a great deal of time, money and resources to
`develop and market its products in connection with the SUTERRA Marks. Because
`of this, there is substantial goodwill associated with the SUTERRA Marks.
`18. The SUTERRA Marks are used uniformly and consistently in every
`product, advertisement, and promotion in connection with the agricultural products
`Suterra sells.
`19. Suterra uses the SUTERRA Marks to distinguish itself as the source of
`goods and services in connection therewith.
`20. The SUTERRA and SUSTERRA products, both being agricultural
`products, are sold to the same or similar group of customers utilizing overlapping
`trade channels.
`21. The SUSTERRA products are bio-rational, meaning that they are non-
`toxic. Similarly, Mosaic’s website promotes the SUSTERRA product as using “bio-
`based technology.” By selling SUSTERRA products that mimic the SUTERRA
`Marks, Defendants are not only creating likelihood confusion between the marks,
`but are also attempting to fall within and capitalize on Suterra’s core business
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`Case 2:20-cv-09167 Document 1 Filed 10/06/20 Page 5 of 14 Page ID #:5
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`proposition of being an industry leader in environmentally friendly agricultural
`products.
`22. The SUTERRA Marks were custom designed to be distinctive,
`innovative and recognizable to consumers so that the SUTERRA Marks would act
`as a source-identifier. Because of this, the SUTERRA Marks are inherently
`distinctive. In the alternative, because of Suterra’s exclusive and extensive use, the
`SUTERRA Marks have acquired secondary meaning and distinctiveness, and are
`thus well known to its customers as identifying and distinguishing Suterra
`exclusively and uniquely as the source of products to which the SUTERRA Marks
`are applied.
`23. The SUTERRA Marks are widely recognized as a source-identifier for
`Suterra’s agricultural products. Suterra has built and owns an extremely valuable
`goodwill which is symbolized by, and associated with its highly distinctive
`SUTERRA Marks.
`24. Suterra pursues a variety of marketing efforts for the sale of its
`agricultural products bearing the SUTERRA Marks, including attending trade
`shows, engaging in print and web-based advertising, direct mail advertising, digital
`marketing, and via social media.
`25. The SUTERRA Marks denote high-quality agricultural products and
`act as a source-identifier of those products.
`26. Notwithstanding Suterra’s rights in the SUTERRA Marks, and with
`constructive and actual notice of Suterra’s rights, Defendants are intentionally and
`willfully advertising, distributing, and selling a product that infringes the SUTERRA
`Marks.
`27.
` Defendants’ use of the SUSTERRA mark infringes the SUTERRA
`Marks by causing a likelihood of confusion with the SUTERRA Marks.
`28. By copying and using marks similar to the SUTERRA Marks,
`Defendants are intentionally trading on the substantial goodwill created by Suterra.
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`Defendants’ use of SUSTERRA on agricultural products creates a likelihood of
`confusion, mistake, and deception as to Defendants’ affiliation, connection, and/or
`association with Suterra among consumers and the trade.
`29. Suterra has never authorized or consented to any such use by
`Defendants’ of the SUTERRA Marks or any mark similar to the SUTERRA Marks.
`30. Defendants’ unauthorized actions and use of SUSTERRA constitutes
`trademark infringement, false designation of origin and unfair competition under the
`laws of the United States and the State of California.
`31. Suterra is informed and believes, and based thereon alleges, that
`Defendants intentionally named their agricultural product, SUSTERRA so as to
`incorporate the inherently distinctive SUTERRA Marks.
`32. Suterra is also informed and believes, and based thereon alleges, that
`Defendants use the SUSTERRA mark in commerce to intentionally cause a
`likelihood of confusion between Defendants’ infringing agricultural product and
`Suterra’s agricultural products, or to cause mistake, or to deceive the relevant public
`that Defendants’ goods or services are authorized, sponsored or approved by or are
`affiliated with Suterra.
`33. Suterra is further informed and believes, and based thereon alleges, that
`by intentionally misappropriating the SUTERRA Marks, Defendants are causing
`customer confusion in the marketplace.
`
`34. Suterra is informed and believes, and based thereon alleges, that
`Defendants have willfully and knowingly infringed the inherently distinctive
`SUTERRA Marks with knowledge of Suterra’s rights and in an intentional attempt
`to target consumers who are familiar with products bearing the SUTERRA Marks
`and creating the impression of an association between Defendants and Suterra or an
`endorsement by Suterra of Defendants’ goods.
`35. The natural, probable and foreseeable result of the intentional, willful
`and wrongful conduct of Defendants has been to deprive Suterra of business and
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`Case 2:20-cv-09167 Document 1 Filed 10/06/20 Page 7 of 14 Page ID #:7
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`goodwill, and to injure Suterra’s goodwill, reputation and relationships with existing
`and prospective customers by infringing the SUTERRA Marks, causing customers
`to associate Suterra and agricultural products bearing the SUTERRA Marks with
`Defendants’ SUSTERRA agricultural product.
`36. Suterra is further informed and believes, and based thereon alleges, that
`it has lost or will lose revenues from the sale of SUSTERRA products infringing the
`inherently distinctive SUTERRA Marks and will sustain damages as a result of
`Defendants’ wrongful conduct in selling, marketing and distributing products with
`the infringing SUSTERRA mark.
`37. Suterra is further informed and believes, and based thereon alleges, that
`Defendants have been unjustly enriched by their sale and marketing of the infringing
`SUSTERRA agricultural product.
`38. Defendants’ conduct is the result of willful and wanton disregard of
`Suterra’s established and superior rights. Defendants have adopted and use the
`SUSTERRA mark without authorization and with full knowledge of Suterra’s
`superior rights and despite having been put on notice. Suterra has suffered, and will
`continue to suffer, irreparable injury as a result of Defendants’ unlawful actions and
`has no adequate remedy at law. Susterra is therefore entitled to injunctive relief.
`FIRST CLAIM FOR RELIEF
`(Trademark Infringement Pursuant to 15 U.S.C. § 1114)
`39. Suterra incorporates by reference Paragraphs 1 through 38 above as
`though fully set forth herein.
`40. Defendants’ SUSTERRA product infringes the SUTERRA Marks
`because their use of the SUTERRA Marks as part of their product’s name, is likely
`to cause confusion, mistake, and deception with respect to the SUTERRA Marks.
`41. Defendants’ imitation, copying, and unauthorized use in commerce of
`Suterra’s federally registered trademarks is likely to cause confusion, mistake, or to
`deceive the consuming public and trade by creating the erroneous impression that
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`Defendants’ products have been manufactured, approved, sponsored, endorsed, or
`guaranteed by, or are in some way affiliated with Suterra.
`42. The imitation, copying, and unauthorized use of the SUTERRA Marks
`causes irreparable injury to Suterra, including injury to its business reputation and
`the goodwill associated with the SUTERRA Marks.
`43. By reason of the foregoing, Defendants have infringed Suterra’s
`trademarks and have violated, and are continuing to violate, 15 U.S.C. Section 1114.
`44. Suterra has no adequate remedy at law for these injuries. Moreover,
`unless Defendants are restrained by this Court from continuing this imitation,
`copying and unauthorized use of the SUTERRA Marks, these injuries will continue
`to occur. Suterra is entitled to an injunction restraining Defendants, their officers,
`agents, distributors and employees, and all persons acting in concert with them,
`from engaging in such further acts in violation of 15 U.S.C. Section 1116.
`45. By reason of Defendants’ willful acts of trademark infringement,
`Suterra is entitled to damages it has sustained and will sustain, and to have those
`damages trebled pursuant to 15 U.S.C. Section 1117.
`46. This is an exceptional case making Suterra eligible for an award of
`attorneys’ fees under 15 U.S.C. Section 1117.
`47. Suterra is further entitled to recover from Defendants any gains, profits
`and advantages unfairly obtained by Defendants as a result of their acts of
`infringement alleged herein. At present, the amount of any gains, profits and
`advantages cannot be fully ascertained by Suterra. Suterra is unable to ascertain the
`full extent of the monetary damages suffered by reason of Defendants’ acts at this
`time.
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`SECOND CLAIM FOR RELIEF
`(Trademark Infringement and False Designation of Origin Pursuant to 15
`U.S.C. § 1125(a))
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`48. Suterra incorporates by reference Paragraphs 1 through 47 above as
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`though fully set forth herein.
`49. Defendants’ use of SUSTERRA on its product infringes the SUTERRA
`Marks, and Defendants are falsely designating the origin of their product because
`the use of the SUTERRA Marks as part of their product’s name is likely to cause
`confusion, mistake, and deception with respect to the SUTERRA Marks.
`50. Defendants’ use of SUTERRA as part of its product name has confused
`and is likely to continue to cause confusion or to cause mistake, or to deceive the
`consuming public into believing that Defendants’ goods or services are authorized,
`sponsored or approved by or are affiliated with Suterra.
`51. These acts constitute trademark infringement of the SUTERRA Marks
`and false designation of origin in violation of 15 U.S.C. Section 1125(a), entitling
`Suterra to relief.
`52. By reason of Defendants’ acts, Suterra is, and will continue to be,
`irreparably harmed if Defendants’ conduct is not enjoined. Suterra’s remedy at law
`is not adequate to compensate it for the injuries inflicted, and Suterra is therefore
`entitled to injunctive relief pursuant to 15 U.S.C. Section 1116.
`53. The above-described acts of Defendants have irreparably harmed and,
`if not enjoined, will continue to irreparably harm the general public, which has an
`interest in being free from confusion, mistake and deception.
`54. Defendants have unfairly profited from the actions alleged and Suterra
`is therefore entitled to recover from Defendants the damages sustained as a result of
`Defendants’ acts in violation of 15 U.S.C. Section 1125(a). At present, Suterra is
`unable to ascertain the full extent of the monetary damages suffered by reason of
`Defendants’ acts.
`55. Further, because of the willful nature of Defendants’ acts, Suterra is
`entitled to damages and to have those damages trebled pursuant to 15 U.S.C. Section
`1117.
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`56. This is an exceptional case making Suterra eligible for an award of
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`attorneys’ fees pursuant to 15 U.S.C. Section 1117.
`THIRD CLAIM FOR RELIEF
`(Unfair Competition and Unfair Business Practices Pursuant to Cal. Bus. &
`Prof. Code §§ 17200, 17500 et seq.)
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`57. Suterra incorporates by reference Paragraphs 1 through 56 above as
`though fully set forth herein.
`58. Defendants’ willful, knowing and unauthorized promotion,
`advertisement, sale and offering for sale of infringing goods, causing confusion as to
`the source of the goods and causing harm to Suterra’s goodwill, consist of untrue
`and misleading statements and constitute an unlawful appropriation of Suterra’s
`exclusive rights in its SUTERRA Marks as outlined herein.
`59. Defendants have unlawfully appropriated Suterra’s exclusive rights in
`its SUTERRA Marks, infringing on Suterra’s rights because, Defendants use of the
`term SUSTERRA as a product name infringes the SUTERRA Marks.
`60. By selling and offering for sale infringing goods and services,
`Defendants are in violation of Suterra’s proprietary rights. Their conduct thereby
`constitutes unlawful, unfair, deceptive and/or fraudulent trade practices and unfair
`competition in violation of California Business & Professions Code Sections 17200,
`17500 et seq. The predicate acts comprising Defendants’ unlawful, unfair,
`deceptive and/or fraudulent trade practices or acts include, but are not limited to, the
`violations of law more fully set forth herein.
`61. As a direct and proximate result of Defendants’ wrongful conduct,
`Suterra has suffered injury in fact, which losses include damage to Suterra’s
`goodwill with its existing, former and potential customers and actual confusion
`between Defendants’ infringing products and Suterra’s products.
`62. These wrongful acts have proximately caused and will continue to
`cause Suterra substantial injury, including loss of customers, loss of goodwill, and
`confusion of existing and potential customers of Suterra’s products. The harm these
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`wrongful acts will cause to Suterra is both imminent and irreparable, and the amount
`of damage sustained by Suterra will be impossible to ascertain if these acts continue.
`As such, Suterra has no adequate remedy at law.
`63. Pursuant to California Business & Professions Code Section 17203,
`Defendants are required to disgorge and restore to Suterra all profits and property
`acquired by means of Defendants’ unfair competition with Suterra.
`64. Pursuant to California Business & Professions Code Section 17203,
`Suterra is also entitled to a preliminary and permanent injunction restraining
`Defendants, their respective officers, agents, employees, distributors and all persons
`acting in concert with them, from engaging in further such unlawful conduct.
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`PRAYER FOR RELIEF
`WHEREFORE, Suterra prays for judgment against Defendants as follows:
`1.
`That the Court enter judgment against each Defendant that:
`a.
`Defendants infringed the rights of Suterra in its federally
`registered trademarks in violation of 15 U.S.C. Section 1114;
`b.
`Defendants infringed Suterra’s rights in the SUTERRA Marks in
`violation of 15 U.S.C. Section 1125;
`c.
`Defendants engaged in unfair competition and deceptive acts and
`practices in violation of California Business & Professions Code Sections 17200,
`17500, et seq.;
`d.
`That the Court enter judgment against each Defendant that the
`above acts, 1(a)-(c), were willful and intentional, making this an exceptional case;
`2.
`That the Court issue a preliminary and permanent injunction enjoining
`and restraining Defendants and their agents, employees, successors, assigns and all
`other persons acting in concert or in conspiracy with or affiliated with Defendants
`from:
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`a.
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`Engaging in any infringing activity including advertising,
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`promoting, marketing, franchising, distributing, selling, and offering for sale any
`goods or services in connection with the infringing product identified herein or any
`product or mark similar to the SUTERRA Marks in any media, whether in person, in
`print or by electronic or digital means including but not limited to newspapers,
`magazines, bus shelters, billboards as well as via the Internet, including but not
`limited to, company websites, promotional websites, social media websites,
`YouTube or other video-related websites, agricultural reviewing websites, blogs,
`email, SMS and the like; and
`b.
`Requiring Defendants to deliver up to Suterra for destruction any
`and all packaging, advertising and promotional materials in Defendants’ possession,
`custody or control which contain the infringing products, marks, and/or designs, and
`any and all products in their possession, custody or control which infringe the
`SUTERRA Marks.
`3.
`That the Court issue an Order at the conclusion of the present matter
`that all infringing products be recalled, seized, impounded and destroyed.
`4.
`That Suterra be awarded damages for Defendants’ trademark
`infringement, and for unfair competition under California common law.
`5.
`That Suterra be awarded all profits and restitution resulting from
`Defendants’ infringement of Suterra’s rights and by means of Defendants’ unfair
`competition with Suterra.
`6.
`That Defendants be ordered to account for and disgorge to Suterra all
`amounts by which Defendants have been unjustly enriched by reason of the
`unlawful acts complained of.
`7.
`That damages resulting from Defendants’ infringement under the
`Lanham Act be trebled due to Defendants’ willfulness in accordance with the
`provisions of 15 U.S.C. Section 1117.
`8.
`That Suterra be awarded exemplary or punitive damages in an amount
`appropriate to punish Defendants and to make an example of the Defendants to the
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`community.
`9.
`That, at Suterra’s election, Suterra be awarded an amount sufficient to
`reimburse it for the costs of corrective advertising.
`10. For pre-judgment interest on all infringement and other appropriate
`damages.
`11. That the Court award Suterra its reasonable attorneys’ fees pursuant to
`15 U.S.C. § 1117, 17 U.S.C. Section 505, and any other applicable provision of law.
`12. That the Court award Suterra its costs of suit incurred herein.
`13. For such other or further relief as the Court may deem just and proper
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`DATED: October 6, 2020
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`ROLL LAW GROUP PC
`
`By:
`
` /s/ Michael M. Vasseghi
`Michael M. Vasseghi
`Attorneys for Plaintiff SUTERRA LLC
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`{3127622.2}
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`12
`COMPLAINT
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`Case 2:20-cv-09167 Document 1 Filed 10/06/20 Page 14 of 14 Page ID #:14
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`DEMAND FOR JURY TRIAL
`Plaintiff hereby demand a jury trial in connection with this action.
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`DATED: October 6, 2020
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`ROLL LAW GROUP PC
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`By:
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`/s/ Michael M. Vasseghi
`Michael M. Vasseghi
`Attorneys for Plaintiff SUTERRA LLC
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`{3127622.2}
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`13
`COMPLAINT
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