Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 1 of 13 Page ID #:1
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`Jeffrey G. Sheldon (SBN 67516)
`jsheldon@cislo.com
`Katherine M. Bond (SBN 263020)
`kbond@cislo.com
`CISLO & THOMAS LLP
`12100 Wilshire Blvd., Ste. 1700
`Los Angeles, California 90025
`Telephone: (310) 979-9190
`
`Attorneys for Plaintiff
`Lucky Boy Hamburgers, Inc.
`
`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. 2:21-cv-01706
` COMPLAINT
`1. TRADEMARK INFRINGEMENT;
`2. FALSE DESIGNATION OF
`ORIGIN;
`3. TRADEMARK INFRINGEMENT
`STATE LAW;
`4. COMMON LAW TRADEMARK
`INFRINGEMENT;
`5. STATUTORY UNFAIR
`COMPETITION;
`6. COMMON LAW UNFAIR
`COMPETITION;
`7. INTENTIONAL INTERFERENCE
`WITH PROSPECTIVE ECONOMIC
`ADVANTAGE; AND
`8. NEGLIGENT INTERFERENCE
`WITH PROSPECTIVE ECONOMIC
`ADVANTAGE
`
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`REQUEST FOR JURY TRIAL
`
`COMPLAINT
`
`LUCKY BOY HAMBURGERS,
`INC., a California corporation,
`
`
`Plaintiff,
`
`v.
`
`POSTMATES INC., a Delaware
`corporation,
`
`
`
`Defendant.
`
`
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 2 of 13 Page ID #:2
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`Plaintiff Lucky Boy, Inc., through its attorneys Cislo & Thomas LLP, alleges
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`as follows:
`
`THE PARTIES
`Plaintiff Lucky Boy Hamburgers, Inc. (“Plaintiff” or “Lucky Boy”) is a
`1.
`California corporation having a principal place of business located at 830 N.
`Gainsborough Drive, Pasadena, California, 91107 and is the owner of Lucky Boy, a
`restaurant in Pasadena.
`Upon information and belief, Defendant Postmates Inc., is a corporation
`2.
`organized under the laws of Delaware with a principal place of business at 201 3rd
`Street, Suite 200 San Francisco, California, 94107. Postmates is an on-demand food
`delivery platform.
`
`JURISDICTION AND VENUE
`The Court has subject matter jurisdiction over this matter pursuant to 15
`3.
`U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338 and 1367. Plaintiff’s claims are, in part,
`based on violations of the Lanham Act, as amended, 15 U.S.C. §§ 1051, et seq. The
`Court has jurisdiction over the state law claims pursuant to 28 U.S.C. §§ 1338(b),
`and 1367.
` 4. This Court has personal jurisdiction over Defendant, and for similar
`reasons, venue is proper in the Central District of California pursuant to 28 U.S.C.
`§ 1391(b). Plaintiff is informed and believes that Defendant operates its food
`delivery business throughout the Central District of California, including throughout
`Los Angeles County and Orange County. Further, upon information and belief, a
`substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in
`this District.
`
`LUCKY BOY HAMBURGERS
`5. Lucky Boy is a family-owned corporation that has been in business since
`1960. Lucky Boy was founded by two brothers from Greece who started over in the
`San Gabriel Valley after Europe was decimated from war. With its third generation
`- 1 -
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`COMPLAINT
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 3 of 13 Page ID #:3
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`of family leadership currently at the helm, the company has succeeded in the
`exceedingly competitive restaurant industry.
`
`6.
`There are two Lucky Boy locations in Pasadena. The walk-up diner
`located off of Arroyo Parkway is owned by Plaintiff while the Walnut Street location
`is licensed to family members.
`7.
`The Los Angeles Times rated Lucky Boy as a Top 100 Los Angeles
`restaurant and Zagat calls the walk-up diner, “…pretty damn good.”
`8.
`Lucky Boy is famous for their ultimate breakfast burrito- a fan favorite
`with both customers and critics drawing hundreds of fans daily from across Los
`Angeles County. In addition to breakfast burritos the restaurants also offer
`vegetarian dishes, specialty sandwiches, salads and burgers.
`9.
`Plaintiff Lucky Boy is the owner of U.S. Trademark Registration Nos.
`5,406,126 and 5,673,259 for Lucky Boy for use in connection with restaurant
`services with a first use in commerce date of May 30, 1960. The company also owns
`California Trademark Registration No. 18088 issued on November 16, 1983 for
`Lucky Boy. The Lucky Boy trademarks are collectively referred to as the “Lucky
`Boy Mark”. Attached as Exhibit “1” are true and correct copies of Plaintiff’s federal
`trademark registrations.
`10. Plaintiff Lucky Boy’s registrations are valid, subsisting and in full force
`and effect evidencing the validity of the Lucky Boy Mark and Plaintiff’s exclusive
`right to use the mark in connection with the services identified in the registrations.
`11. The presence of the Lucky Boy Mark for use with Plaintiff’s services
`indicates to the public that the services provided under the Lucky Boy Mark originate
`with, or are provided by, Lucky Boy. Plaintiff adheres to strict quality standards in
`the preparation and service of its food and beverages including all requirements of
`the California Retail Food Code. Thus, the consuming public has come to associate
`the Lucky Boy Mark with food and restaurant services of the highest quality.
`12. As a consequence of all of the foregoing, the Lucky Boy Mark has
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`COMPLAINT
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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 4 of 13 Page ID #:4
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`attained considerable value and the goodwill associated with it represents a valuable
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`business asset.
`
`POSTMATES INFRINGEMENT
`13. Defendant Postmates is a third-party courier service similar to
`DoorDash, Uber Eats or GrubHub that have become popular in recent years due to
`the Covid pandemic. Consumers use an online platform, usually an app, to order
`food, a driver picks up the order at the location, and delivers the food to the
`consumer.
`14. On information and belief, Postmates generates revenue by charging
`delivery service fees to both the consumer and the eating establishment. For example,
`a restaurant has to pay a commission on the food that it sells and the consumer pays a
`percentage of the sales price.
`15. Not all restaurants want to be associated or affiliated with third party
`food delivery services.
`16. The delivery service fees are high. Upon information and belief,
`Defendant Postmates charges restaurants approximately thirty (30) percent of each
`food order which causes some restaurants to actually lose money. Also Postmates
`only pays monthly. The high rates and slow pay are unacceptable. This is especially
`true in a pandemic when restaurants have faced unprecedented challenges in trying to
`remain open and pay overhead.
`17. Further, upon information and belief, Defendant does not comply with
`Food Code requirements and its drivers do not possess the appropriate licenses and
`permits required to safely handle food on behalf of consumers. There have been
`numerous articles in the press about delivery service apps providing poor service and
`the improper handling of food, and even drivers who eat the food.
`18. Lucky Boy does not want to be affiliated or associated with Defendant.
`However, Postmates runs its business to penalize Lucky Boy for not signing up by
`intentionally diverting business form Lucky Boy.
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`COMPLAINT
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 5 of 13 Page ID #:5
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`19. Despite Defendant not having authorization to use the Lucky Boy Mark
`it continues to use LUCKY BOY in its online platforms.
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`If one searches for “Lucky Boy” using Defendant Postmates’ mobile
`20.
`app, the restaurant sometimes appears as “closed”.
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`This is not true. The dining establishments were not closed at the time this image
`was taken. This diverts consumers to other restaurants because they falsely believe
`Lucky Boy is closed.
`21. Defendant Postmates has a “menu” posted for Lucky Boy but it has
`incorrect information including lower prices. This causes issues for Lucky Boy
`when its customers come to order and the prices are not the same.
`22. Because Lucky Boy is not an option for Postmates delivery, Defendant
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`COMPLAINT
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 6 of 13 Page ID #:6
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`offers alternatives with similar food when Lucky Boy is searched for, and this too
`diverts business away from Lucky Boy.
`23. Plaintiff has repeatedly contacted Defendant Postmates requesting the
`all references to Lucky Boy be removed from all online resources. Attached as
`Exhibit “2” are some of the correspondence Lucky Boy has had with Postmates.
`24. Postmates never complied with Plaintiff’s requests.
`25. On or about February 16, 2021, Lucky Boy through counsel sent a letter
`to Defendant Postmates’ CEO via email and FedEx (with confirmation the letter was
`delivered) requesting removal of all references to Lucky Boy and to immediately
`cease and desist from using Plaintiff’s trademarks on its website, mobile application,
`and advertisements. Attached as Exhibit “3” is a true and correct copy of the letter
`sent to Postmates.
`26. To date, no response has been received and no changes have been made
`regarding references to Lucky Boy through Postmates.
`27. On information and belief, Postmates is using unfair business practices
`in an attempt to “coerce” Lucky Boy to become one of its restaurants. Postmates’
`actions are fraudulent, oppressive, and malicious.
`28. By reason of Defendant’s acts, as alleged herein, Lucky Boy has
`suffered damages, including attorney fees, incurred due to Postmates conduct.
`FIRST CLAIM FOR RELIEF
`(For Trademark Infringement – 15 U.S.C. § 1114(1))
`29. Lucky Boy repeats and re-alleges paragraphs 1 through 28, as though
`fully set forth in this paragraph.
`30. The Lucky Boy Mark is owned by Lucky Boy and Lucky Boy has
`continuously used the Lucky Boy Mark in commerce since at least as early as 1960.
`Lucky Boy has never authorized or consented to Defendant’s use of any mark which
`is the same as, is confusingly similar to, or constitutes a colorable imitation of the
`Lucky Boy Mark in commerce in connection with its products or services.
`- 5 -
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`COMPLAINT
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 7 of 13 Page ID #:7
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`31. Defendant’s actions, as alleged above, are likely to cause confusion,
`mistake or deception in violation of Section 32(1) of the Lanham Act, 15 U.S.C. §
`1114(1).
`32. Defendant’s acts have been undertaken to cause confusion, mistake and
`deception among members of the relevant public and to trade on the goodwill
`associated with the Lucky Boy Mark.
`SECOND CLAIM FOR RELIEF
`(For False Designation of Origin – 15 U.S.C. §1125(a))
`33. Lucky Boy repeats and re-alleges paragraphs 1 through 28, 30 through
`32 as though fully set forth in this paragraph.
`34. The Lucky Boy Mark is owned by Lucky Boy and Lucky Boy has
`continuously used it in commerce for many years since at least as early as 1960.
`Lucky Boy has not authorized or consented to Defendant’s use of the Lucky Boy
`Mark or of any similar marks or names in connection with its products or services.
`35. Defendant’s actions, as alleged above, are likely to cause confusion,
`mistake or deception as to the affiliation, connection or association of the Defendant
`with, or as to the origin, sponsorship or approval of Defendant’s products or services
`by Lucky Boy in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
`36. Defendant’s acts have caused and will continue to cause irreparable and
`immediate injury to Lucky Boy for which Lucky Boy has no adequate remedy at law.
`Unless Defendant is restrained by this Court from continuing its unauthorized use of
`the Lucky Boy Mark, these injuries will continue to occur.
`THIRD CLAIM FOR RELIEF
`(For Infringement Under California State Law)
`37. Lucky Boy repeats and re-alleges paragraphs 1 through 28, 30 through
`32, 34 through 36, as though fully set forth in this paragraph.
`38. On information and belief, the Defendant’s actions, as described above,
`constitute conduct that is so careless as to indicate a wanton disregard for the
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`COMPLAINT
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 8 of 13 Page ID #:8
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`intellectual property rights of Lucky Boy. Further, the Defendant’s acts, as alleged
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`above, constitute trademark infringement in that they have been undertaken with a
`conscious disregard of Lucky Boy’s intellectual property rights and with a desire to
`injure Lucky Boy’s business and to improve its own.
`FOURTH CLAIM FOR RELIEF
`(For Common Law Trademark Infringement)
`39. Lucky Boy repeats and re-alleges paragraphs 1 through 28, 30 through
`32, 34 through 36, and 38 as though fully set forth in this paragraph.
`40. On information and belief, the Defendant’s actions, as described above,
`constitute conduct that is so careless as to indicate a wanton disregard for the
`intellectual property rights of Lucky Boy. Further, the Defendant’s acts, as alleged
`above, constitute trademark infringement in that they have been undertaken with a
`conscious disregard of Lucky Boy’s intellectual property rights and with a desire to
`injure Lucky Boy’s business and to improve its own.
`FIFTH CLAIM FOR RELIEF
`(Against All Defendants for Unfair Competition,
`Cal. Bus. & Prof. Code § 17200)
`41. Lucky Boy repeats and re-alleges paragraphs 1 through 28, 30 through
`32, 34 through 36, 38 and 40 as though fully set forth in this paragraph.
`42. The above-described acts of Defendant constitute unfair competition
`within the meaning of California Business and Professions Code Section 17200.
`Such acts have caused and will continue to cause irreparable and immediate injury to
`Lucky Boy for which Lucky Boy has no adequate remedy at law. Unless Defendant
`is restrained by this Court from continuing the acts alleged herein, these injuries will
`continue to occur.
`///
`///
`///
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`COMPLAINT
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 9 of 13 Page ID #:9
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`SIXTH CLAIM FOR RELIEF
`(Common Law Unfair Competition)
`43. Lucky Boy repeats and re-alleges paragraphs 1 through 28, 30 through
`32, 34 through 36, 38, 40 and 42 as though fully set forth in this paragraph.
`44. The above-described acts of Defendant constitutes common law unfair
`competition in that Defendant is attempting to pass off its goods and services as
`those of Lucky Boy. Such acts have caused and will continue to cause irreparable
`and immediate injury to Lucky Boy for which Lucky Boy has no adequate remedy at
`law. Unless Defendant is restrained by this Court from continuing the acts alleged
`herein, these injuries will continue to occur.
`SEVENTH CLAIM FOR RELIEF
`(Intentional Interference with Prospective Economic Advantage)
`45. Lucky Boy repeats and re-alleges paragraphs 1 through 28, 30 through
`32, 34 through 36, 38, 40, 42 and 44 as though fully set forth in this paragraph.
`
`46. Defendant is liable to Lucky Boy for its interference with prospective
`economic advantage. Interference with prospective economic advantage requires:
`1.) An economic relationship between plaintiff and some third party,
`with the probability for future economic benefit to the plaintiff;
`2.) The defendant’s knowledge of the relationship;
`3.) Intentional acts on the part of defendant designed to disrupt the
`relationship;
`4) Actual disruption of the relationship; and
`5) Economic harm to the plaintiff proximately caused by the acts of the
`defendant.
`(Korea Supply v. Lockheed Martin Corp., 29 Cal.4th 1134, 1153 (2003).
`47.
`Interference with prospective economic advantage also requires a
`plaintiff to allege an act that is wrongfully independent of the interference itself.
`48. Here, an economic relationship exists between Lucky Boy and its
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`COMPLAINT
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 10 of 13 Page ID #:10
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`customers, with the probability of future economic benefit to Plaintiff Lucky Boy.
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`Defendant Postmates is aware of these relationships between Plaintiff and its
`customers, but has nonetheless intentionally disrupted Plaintiff’s relationship with its
`customers.
`49. By Defendants’ conduct, Defendant has actually disrupted Plaintiff’s
`relationship with its customers including, but not limited to, customers not
`purchasing from the restaurant believing it was closed.
`50. Defendant false postings have resulted in a loss of business for Plaintiff
`causing Plaintiff to suffer damages as a result of Defendant’s conduct, including lost
`sales.
`
`51. Defendant’s conduct continued even after being asked numerous times
`to correct such false information.
`52.
` Defendant’s actions, as alleged herein, were intentional, willful,
`malicious, oppressive and fraudulent, with wanton disregard for the rights of
`Plaintiff, and were engaged in for the purpose of benefiting Defendant and injuring
`Plaintiff, so as to justify the awarding of exemplary and punitive damages in an
`amount subject to proof at trial.
`EIGHTH CLAIM FOR RELIEF
`(Intentional Interference with Prospective Economic Advantage)
`53. Lucky Boy repeats and re-alleges paragraphs 1 through 28, 30 through
`32, 34 through 36, 38, 40, 42, 44 and 46-52 as though fully set forth in this
`paragraph.
`54. Lucky Boy and its customers were in an economic relationship that
`probably would have resulted in a future economic benefit to Plaintiff Lucky Boy.
`55. Defendant Postmates knew or should have known of this restaurant-
`customer relationship.
`56. Defendant Postmates knew or should have known that this relationship
`would be disrupted if Postmates failed to act with reasonable care.
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`COMPLAINT
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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 11 of 13 Page ID #:11
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`57. Defendant Postmates failed to act with reasonable care even after being
`contacted numerous times to correct the false information.
`58. By Defendants’ conduct, Defendant has actually disrupted Plaintiff’s
`relationship with its customers including, but not limited to, customers not
`purchasing from the restaurant believing it was closed.
`50. Defendant false postings and misinformation have resulted in a loss of
`business for Plaintiff therefore causing Plaintiff to suffer damages as a result of
`Defendant’s conduct, including lost sales.
`51. Defendant’s conduct continued even after being asked numerous times
`to correct such false information.
`52.
` Defendant’s actions, as alleged herein, were negligent with disregard
`for Plaintiff’s rights, and were engaged in for the purpose of benefiting Defendant
`and injuring Plaintiff.
`
`PRAYER FOR RELIEF
`WHEREFORE, Lucky Boy prays for relief as follows:
`1.
`For an order permanently enjoining Defendant and Defendant’s officers,
`agents, employees and representatives, and all those acting in concert or conspiracy
`with it from:
`Using any mark or designation that makes use of the term
`a.
`LUCKY BOY or any permutation of that term, whether alone or in
`combination with other words, characters or symbols in connection with
`the sale, offer for sale, promotion or advertising of any products and/or
`services;
`b.
`Instructing or directing any third parties to prepare print
`advertising, flyers, including digital content bearing the term LUCKY
`BOY or any permutation of that term, whether alone or in combination
`with other words, characters or symbols for use in connection with the
`sale, offer for sale, promotion or advertising of any products and/or
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`COMPLAINT
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`

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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 12 of 13 Page ID #:12
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`services;
`c.
`Imitating, copying, making unauthorized use of, or otherwise
`infringing, Plaintiff’s rights in and to the Lucky Boy Mark;
`For a monetary award in favor of Lucky Boy in an amount equal to (i)
`2.
`Lucky Boy’s actual damages and (ii) to the extent not included in actual damages,
`the Defendant’s profits arising from the acts alleged above, such damages and profits
`to be trebled under 15 U.S.C. § 1117(a);
`3.
`For a finding that this is an exceptional case within the meaning of, and
`for an award of attorneys’ fees pursuant to, 15 U.S.C. § 1117(a);
`
`4.
`For an award of pre-judgment interest and post-judgment interest in the
`maximum amount permitted by law;
`5.
`For an award of costs under 15 U.S.C. § 1117(a), or as otherwise
`provided by law;
`6.
`For exemplary and punitive damages; and
`7.
`For such other and further relief as the court deems
`
` Respectfully submitted,
`
` CISLO &THOMAS LLP
`
`
`By: /s/Jeffrey G. Sheldon
`Jeffrey G. Sheldon
`
` Attorneys for Plaintiff,
` LUCKY BOY, INC.
`
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`DATED: February 24, 2021
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`COMPLAINT
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`Case 2:21-cv-01706 Document 1 Filed 02/24/21 Page 13 of 13 Page ID #:13
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`REQUEST FOR JURY TRIAL
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`Lucky Boy requests a trial by jury on all issues so triable.
`
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`DATED: February 24, 2021
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` Respectfully submitted,
`
` CISLO &THOMAS LLP
`
`
`By: /s/Jeffrey G. Sheldon
`Jeffrey G. Sheldon
`
` Attorneys for Plaintiff,
` LUCKY BOY, INC.
`
`- 12 -
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`COMPLAINT
`
`