Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 1 of 14 Page ID #:1
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`Marina Lang, Cal. Bar No. 251,087 mlang@socalip.com
`Steven C. Sereboff, No. 156,731 ssereboff@socalip.com
`Brian S. Tamsut, No. 322,780 btamsut@socalip.com
`SOCAL IP LAW GROUP LLP
`310 N. Westlake Blvd., Suite 120
`Westlake Village, CA 91362-3788
`Phone: (805) 230-1350 • Fax: (805) 230-1355
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`Attorneys for Plaintiff Bragg Live Food Products, LLC
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION
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`
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`Bragg Live Food Products, LLC, a
`Delaware limited liability company,
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`Plaintiff,
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`v.
`National Fruit Product Company, In-
`corporated, a Virginia Corporation,
`and Does 1-10,
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`Defendants.
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`
`
`No. 2:22-cv-584
` Complaint for Damages and Injunction:
`(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 COMPETI-
`TION [15 U.S.C. § 1125(a)];
`(4) UNFAIR BUSINESS PRACTICES [Cal.
`Bus. & Prof. Code § 17200];
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`Demand for Jury Trial
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`Plaintiff Bragg Live Food Products, LLC (“Plaintiff” or “Bragg”) for its com-
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`plaint against National Fruit Product Company, Incorporated (“White House"), and
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`Does 1-10, alleges on information and belief as follows:
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`Complaint
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 2 of 14 Page ID #:2
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`FIRST CLAIM FOR RELIEF – LANHAM ACT TRADE DRESS INFRINGEMENT
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`A. SUBJECT MATTER JURISDICTION
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` [15 U.S.C. § 1125(a)(3)]
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`1. Plaintiff Bragg Live Food Products, LLC (“Plaintiff” or “Bragg”) is a Dela-
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`ware Limited Liability Company registered to do business in California with its pri-
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`mary business located in this District, in Santa Barbara, California and a business ad-
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`dress of PO Box 7, Santa Barbara, CA 93102, and it brings this action for federal trade
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`dress infringement, federal copyright infringement, federal unfair competition, Cali-
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`fornia unfair business practices, against National Fruit Product Company, Incorporated
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`(“White House") and Does 1-10 (White House and Does 1-10 referred to herein sin-
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`gularly as "Defendant" and collectively as "Defendants").
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`2. Defendant, White House, is a Virginia corporation with a business address
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`of 701 Fairmont Ave, Winchester, VA 22601, and it operates and does business
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`throughout the United States, including in this District, under its trademarked name
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`"White House."
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`3. This Court has subject matter jurisdiction over this action under 15 U.S.C.
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`§ 1121 and 28 U.S.C. §§ 1331 and 1338(a) and (b) because Plaintiff’s federal claims
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`arise under the Lanham Act, 15 U.S.C. § 1051 et seq. and the Copyright Act 17 U.S.
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`Code § 501 et seq. This Court has subject matter jurisdiction over Plaintiff’s related
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`common law of California claims under 28 U.S.C. §§ 1338(b) and 1367 because the
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`state law claims relate to claims for unfair competition.
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`B. PERSONAL JURISDICTION & VENUE
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`4. This court has personal jurisdiction over the Defendants because they con-
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`duct business in the jurisdiction of the United States District Court for the Central Dis-
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`trict of California by offering goods for sale in Los Angeles, Ventura and Santa Barbara
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`counties, California.
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`Complaint
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`Bragg Live Food Products, LLC v. National
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 3 of 14 Page ID #:3
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`5. Bragg does not know the true names and capacities, whether individual,
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`corporate, associate or otherwise of defendants Does 1–10. Therefore, they are sued
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`by these fictitious names. Bragg will amend this pleading when the true names and
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`capacities have been ascertained.
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`6. Venue is proper in this Court under 28 U.S.C. § 1391(b), because each De-
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`fendant is a corporate entity subject to personal jurisdiction in this district.
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`C. FACTS
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`7. For over 100 years, Bragg has developed a reputation as an industry leader
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`in organic foods, specifically Apple Cider Vinegar (“ACV”).
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`8. For many decades, Bragg has used distinctive and novel features on its
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`trade dress that were designed to distinguish Bragg's products from others in the mar-
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`ket.
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`9. Founder Paul Bragg designed the Bragg labeling and trade dress to stand
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`out from competing products. His inspiration for the Bragg labeling was drawn from
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`event promotions popular in the early 1900s, including circus banners and similar
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`commercial copy. This unique trade dress includes the distinctive use of the colors
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`yellow, red, white, and black to construct certain labels consumers have come to
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`know and love. For example, many Bragg labels include a distinctive yellow back-
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`ground, a red bordering on labels and specific phrases such as the term “organic”
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`written in white surrounded by red, the words “APPLE CIDER VINERGAR” written
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`in bold, the phrase “with the mother” written in white and surrounded by red.
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`10. Consumers have come to readily identify Bragg products by spotting the
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`bright yellow coloring scheme on store shelving and in other commercial contexts
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`such as on the web and in social media posts. The core elements of red, yellow,
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`white, and red, and the arrangements of elements on the package has remained the
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`same for several decades. Because of Bragg's extensive use of this distinctive trade
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`Complaint
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 4 of 14 Page ID #:4
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`dress on its products, and on its website and in advertising, Bragg enjoys national
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`recognition and goodwill in this trade dress.
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`11. Defendant White House is a relative newcomer to the ACV industry and
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`first started selling ACV goods in or around 2016 using a predominantly green label
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`as shown below:
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`12. In or around 2019, White House launched new product labels and advertis-
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`ing that demonstrate undisputed trade dress, trademark, and copyright infringement
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`necessitating the instant lawsuit. White House intentionally adopted the same design,
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`features, shape, colors, and configuration as Bragg's ACV products. The similarity be-
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`tween essential features of both party’s designs is obvious, as evidenced by one, of
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`many, examples shown below, and therefore this court must enjoin the defendant from
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`offering such egregious competing trade dress meant to cause consumer confusion:
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 5 of 14 Page ID #:5
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`13. Through its counsel, Bragg has sent numerous letters to Defendant White
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`House demanding they cease developing and promoting similar product labels and ad-
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`vertising campaigns. White House continues to infringe Bragg’s trade dress without
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`cessation.
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`14. White House ACV products are likely to cause consumers, the public and
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`the trade to erroneously believe the goods they sell emanate or originate from Bragg,
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`or that Bragg authorized, sponsored, or approved the goods. This confusion causes ir-
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`reparable harm to Bragg and weakens the distinctive quality of Bragg's brand and prod-
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`ucts. Defendant engages in trade dress infringement, federal copyright infringement,
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`federal unfair competition, unlawful California business practices, and federal trade-
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`mark infringement, by imitating and copying Bragg's products, advertising, packaging,
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`and other unique designs, layout, color schemes, and wording that make up the distinc-
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`tive total image and appearance of Bragg, and Bragg seeks injunctive relief, damages,
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`treble damages, and its attorney’s fees and costs, and other relief authorized under fed-
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`eral and state law.
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`15. Bragg’s name, other logos and trade dress have been registered with the
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`United States Patent and Trademark Office. Bragg’s mark has been used in commerce
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`and associated with its ACV for many decades, and that mark is registered with the
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`USPTO as shown below:
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`Country
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`United
`States
`United
`States
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`United
`States
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`Complaint
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`Mark
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`BRAGG
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`BRAGG
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`BRAGG
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`Class
`No.
`030
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`Application
`Date
`08/26/2015
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`Registra-
`tion date
`05/17/2016
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`Registra-
`tion No.
`4959238
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`005,
`029,
`030
`032
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`08/28/2008
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`06/16/2009
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`3638207
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`08/09/2018
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`3/26/2019
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`5,709,467
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`5
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 6 of 14 Page ID #:6
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`BRAGGBERRY
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`030
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`03/22/2011
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`11/08/2011
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`4052496
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`030
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`05/06/2010
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`07/05/2011
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`3988324
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`005
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`11/11/2008
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`06/09/2009
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`3635204
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`030
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`9/16/2019
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`5/26/2020
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`6,062,923
`
`
`BRAGG ALL
`NATURAL LIQ-
`UID AMINOS
`BRAGGZYME
`(stylized)
`BRAGG OR-
`GANIC RAW ~
`UNFILTERED
`APPLE CIDER
`VINEGAR WITH
`THE 'MOTHER'
`16. Bragg's copyrights for its label and packaging designs include its unusual
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`United
`States
`United
`States
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`United
`States
`United
`States
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`packaging configuration, artistic graphical choices, unique color blocking, cleverly
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`placed and uniquely shaped banners, original photorealistic illustrations, and intention-
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`ally and creatively arranged and sized frames, shapes, borders, font, color, designs,
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`stylization, display, and impression that are original and create a unified original and
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`creative work.
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`17. White House's acts violate 15 U.S.C. § 1114, and Bragg has been and is
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`likely to be damaged by these acts. Thus, Defendant is liable for the acts alleged herein
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`directly, vicariously, and/or contributorily. Because Defendants' infringement, as al-
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`leged herein, was intentional, willful, malicious, and done with full knowledge of
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`Bragg’s marks, trade dress, and copyrights, with intent to trade on the goodwill therein
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`and cause consumer confusion and deception, this action qualifies an exceptional case
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`within the meaning of 15 U.S.C. § 1117. Bragg is entitled to exemplary damages, at-
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`torneys’ fees, costs, and pre-judgment interest pursuant to the Lanham Act.
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`18. As a result of White House's acts as alleged herein, Bragg incurred damages
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`in an amount to be proven at trial consisting of, inter alia, the diminution in the value
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`and goodwill associated with its trademarks and trade dress, lost sales, and Defendants'
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`profits attributable to infringement.
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`Complaint
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`Bragg Live Food Products, LLC v. National
`Fruit Product Company, Incorporated, et al
`Case No: 2:22-cv-584
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 7 of 14 Page ID #:7
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`SECOND CLAIM FOR RELIEF - COPYRIGHT INFRINGEMENT
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`[17 U.S.C. § 501]
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`19. Bragg re-alleges and incorporates by reference its previous allegations.
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`20. Bragg owns valid federal copyrights for its original, distinctive, unique, cre-
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`ative, and artistic product packaging at Copyright Registration No. VA 2-100-029,
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`Registration No. VA 2-261-376, Registration No. VA 2-261-365, Registration No. VA
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`2-261-368, Registration No. VA 2-264-374, Registration No. VA 2-261-380, Registra-
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`tion No. VA 2-261-379, copies of which are attached as Exhibit A and incorporated by
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`reference.
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`21. Defendants committed copyright infringement by copying constituent ele-
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`ments of Bragg's original protected works.
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`22. Defendants' infringement was willful, because it copied Bragg's original
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`work knowing that its conduct constitutes an act of infringement.
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`23. Slight differences in color or size and uncopyrightable wording/lettering is
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`no defense to Defendants' infringing conduct.
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`24. At the time of Bragg's publication of its original creative works, the designs
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`and labels used by Defendants did not resemble, copy, or look like Bragg's protected
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`original works.
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`25. After publication of Bragg's protected works in the public marketplace, de-
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`fendants, without permission, intentionally and knowingly reproduced, counterfeited,
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`copied, displayed, altered, and manufactured Bragg's protected work by offering, ad-
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`vertising, promoting, retailing, selling, and distributing its ACV in product packaging
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`and related promotional and advertising content copying the artwork and protected
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`copyrightable material in Bragg's original work.
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`26. Defendants copied Bragg's artwork protected under copyright commercial
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`gain, and placed the artwork on its own labels, packaging, and advertising to be con-
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`Complaint
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`fusingly similar to Bragg's copyrighted artistic graphical choices, unique color block-
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`ing, arbitrarily placed, stylized, sized and uniquely shaped banners, original photoreal-
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`istic illustrations, and intentionally placed in differently sized frames, borders, texts
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`and shapes that are original to Bragg and protected under their federal copyright regis-
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`trations.
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`27. Plaintiff suffered damages. Because of Defendant’s copyright infringement,
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`they earned profits they otherwise would not have earned.
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`28. Plaintiff is also entitled to statutory damages under 17 U.S.C. § 504 of at
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`least $30,000 per infringing work. Because Defendants’ infringement was willful, they
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`are liable for statutory damages of $150,000 under 17 U.S.C. § 504(c)(2).
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`THIRD CLAIM FOR RELIEF - LANHAM ACT UNFAIR COMPETITION
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`[15 U.S.C. § 1125(a)]
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`29. Bragg re-alleges and incorporates by reference its previous allegations.
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`30. Defendant manufactures, distributes, sells, and/or offer for sale in commerce
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`the White House ACV products, which unfairly compete with Bragg's ACV goods by
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`offering, advertising, promoting, retailing, selling, and distributing ACV product that
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`copy Bragg's marks, trade dress, copyrights, artwork and related protected material
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`with the intent to dilute, blur, and tarnish the distinctive quality of Bragg marks, trade
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`dress, and copyrights, cause confusion in the marketplace amongst consumers, and
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`trade on Bragg’s reputation and goodwill created through more than a century of prod-
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`uct sales.
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`31. Defendant’s actions as alleged herein, individually and in combination, vio-
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`late section 43(c) of the Lanham Act, 15 U.S.C. § 1125(a).
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`32. Defendant’s conduct has weakened the ability of Bragg’s mark to readily
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`identify and distinguish Bragg’s goods in the market. The White House products have
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`blurred and tarnished Bragg’s mark by introducing an inferior yet confusingly similar
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`product in stores and online.
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`Complaint
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`33. Because Defendant acted willfully and intentionally to trade on Bragg’s rep-
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`utation and/or to cause dilution of Bragg’s trademarks and trade dress, Bragg is entitled
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`to damages, exemplary damages, fees, and costs pursuant to 15 U.S.C. § 1125(c)(2).
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`34. As a result of Defendant’s acts, Bragg incurred damages in an amount to be
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`proven at trial consisting of, inter alia, the diminution in the value and goodwill asso-
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`ciated with its trademarks and trade dress, lost sales, and Defendant’s profits attributa-
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`ble to infringement.
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`FOURTH CLAIM FOR RELIEF - UNFAIR BUSINESS PRACTICES
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`[CALIFORNIA BUSINESS & PROFESSIONS CODE § 17200]
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`35. Bragg re-alleges and incorporates by reference its previous allegations.
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`36. Defendant has engaged in unfair competition under the Cal. Bus. & Prof.
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`Code § 17200 by engaging in unlawful and unfair conduct, as described above and in
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`this claim for relief. Defendant consciously redesigned its product packing and labels
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`to imitate and copy that of Bragg's to create a likelihood of confusion in the health
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`foods and gourmet grocery marketplace. Defendant’s acts are calculated to blur the
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`distinction between their company and products and Bragg's well-known company and
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`famed ACV products.
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`37. By misappropriating and using Bragg’s protected marks, trade dress, copy-
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`rights, label, artwork, design, and related protected works, Defendant misrepresented
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`and falsely described to the public the origin and source of the products and created a
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`likelihood of confusion by ultimate purchasers as to both the source and sponsorship
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`of such product.
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`38. Bragg has been and will continue to suffer damages and irreparable harm
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`because of Defendant’s unfair competition unless defendants are enjoined from engag-
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`ing in further such acts. As a proximate and foreseeable result of Defendant’s violations
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`Complaint
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 10 of 14 Page ID #:10
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`of the California unfair competition law, Bragg has been damaged in an amount pres-
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`ently unknown. Defendants have unjustly earned profits that but for their acts com-
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`plained of here, they would not have earned
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`39. Defendant’s conduct was willful, because it copied Bragg’s original works
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`knowing that its conduct constituted an act of infringement for its own commercial gain
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`and placed it on its own labels, packaging, and advertising to be confusingly similar to
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`Plaintiff Bragg’s copyrighted artistic graphical choices, unique color blocking, styl-
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`ized, sized and uniquely shaped banners, and intentionally placed and differently sized
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`frames, borders, texts and shapes that are original to Bragg.
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`Request for Relief
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`WHEREFORE, Bragg respectfully requests that the Court order judgment
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`against Defendant for:
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`1.
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`An injunction ordering Defendant, their agents, servants, employees, and
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`all other persons in privity or acting in concert with them be enjoined and restrained
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`from:
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`(a) using any reproduction, counterfeit, copy, or colorable imitation of
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`the Bragg marks, trade dress, copyrights, and related packaging and logos, to
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`identify any goods or the rendering of any services not authorized by Bragg;
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`(b) engaging in any course of conduct likely to cause confusion, decep-
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`tion or mistake, or injure Bragg’s business reputation or weaken the distinctive
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`quality of the Bragg marks, trade dress, copyrights, and related packaging and
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`logos;
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`(c) using a false description or representation including words or other
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`symbols falsely describing or representing Defendants’ unauthorized goods as
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`being those of Bragg or sponsored by or associated with Bragg and from offer-
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`ing such goods in commerce;
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`Complaint
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 11 of 14 Page ID #:11
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`(d) further infringing the Bragg marks, trade dress, copyrights, and re-
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`lated packaging and logos by manufacturing, producing, importing, distrib-
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`uting, circulating, selling, marketing, offering for sale, advertising, promoting,
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`displaying or otherwise disposing of any products not authorized by Bragg
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`bearing any simulation, reproduction, counterfeit, copy or colorable imitation
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`of the Bragg marks, trade dress, copyrights, and related packaging and logos;
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`(e) using any simulation, reproduction, counterfeit, copy or colorable im-
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`itation of the Bragg marks, trade dress, copyrights, and in the promotion, ad-
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`vertisement, display, sale, offering for sale, manufacture, production, circula-
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`tion or distribution of any unauthorized products in such fashion as to relate or
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`connect, or relate or connect, such products to Bragg, or to any goods sold,
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`manufactured, sponsored or approved by, or connected with Bragg;
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`(f) making any statement or representation, or using any false designa-
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`tion of origin or false description, or performing any act, which can or is likely
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`to lead the trade or public, or individual members thereof, to believe that any
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`products manufactured, distributed, imported sold or offered for sale, or rented
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`by Defendant is associated or connected with Bragg; or is sold, manufactured,
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`licensed, sponsored, approved or authorized by Bragg;
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`(g) engaging in any conduct infringing the Bragg marks, trade dress,
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`copyrights, and, of Bragg’s rights in, or to use or to exploit, the Bragg the
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`Bragg marks, trade dress, copyrights, and related packaging and logos, or con-
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`stituting any weakening of Bragg’s name, trade dress, reputation or goodwill;
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`(h) using or continuing to use Bragg marks, trade dress, copyrights, and
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`or trade names or trade dress or any variation thereof on the Internet (either in
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`the text of websites, as a domain name, or as a key word, search word, metatag,
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`or any part of the description of the site in any submission for registration of
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`Complaint
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`11
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`Bragg Live Food Products, LLC v. National
`Fruit Product Company, Incorporated, et al
`Case No: 2:22-cv-584
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 12 of 14 Page ID #:12
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`any Internet site with a search engine or index) in any goods or services not di-
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`rectly authorized by Bragg;
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`(i) hosting or acting as internet service provider for, or operating any
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`websites, that offer for sale any products bearing the Bragg marks, trade dress,
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`copyrights;
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`(j) using any email addresses to offer for sale any nongenuine products
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`bearing counterfeits of the Bragg marks, trade dress, copyrights;
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`(k) using any e-commerce site under any seller name, connected with
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`any websites, that offer for sale any merchandise bearing counterfeits of the
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`Bragg marks, trade dress, copyrights;
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`(l) secreting, destroying, altering, removing, or otherwise dealing with
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`the unauthorized products or any books or records which contain any infor-
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`mation relating to the importing, manufacturing, producing, distributing, circu-
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`lating, selling, marketing, offering for sale, advertising, promoting, or display-
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`ing of all unauthorized products which infringe the Bragg marks, trade dress,
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`copyrights; and
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`(m) effecting assignments or transfers, forming new entities or associa-
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`tions, or utilizing any other device to circumvent or otherwise avoiding the pro-
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`hibitions set forth in subparagraphs (a) through (l).
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`2. Within 10 days of judgment, Defendant must take all steps necessary to
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`remove from all websites it owns or controls all text or other media offering for sale
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`any merchandise bearing counterfeits of the Bragg marks, trade dress, copyrights.
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`3. Within 30 days of judgment, Defendants must file and serve Bragg with
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`a notarized sworn statement under 15 U.S.C. § 1116(a) detailing the manner and form
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`in which Defendants complied with this injunction.
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`4.
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`Order for Defendants to deliver up for destruction to Bragg all unauthor-
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`ized products and advertisements in its possession or under their control bearing the
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`Complaint
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`Bragg Live Food Products, LLC v. National
`Fruit Product Company, Incorporated, et al
`Case No: 2:22-cv-584
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 13 of 14 Page ID #:13
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`Bragg marks, trade dress, copyrights, and related packaging and logos or any simula-
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`tion, reproduction, counterfeit, copy or colorable imitation thereof, and all plates,
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`molds, matrices, and other means of production under 15 U.S.C. § 1118.
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`5.
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`Directing such other relief as the Court may deem appropriate to prevent
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`the trade and public from deriving any erroneous impression that any products manu-
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`factured, sold, or otherwise circulated or promoted by Defendants is authorized by
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`Bragg or related to Bragg’s products.
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`6.
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`Defendant to pay to Bragg damages Bragg sustained from Defendant’s
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`infringement of the Bragg marks, trade dress, copyrights, and related packaging and
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`logos and unfair competition and to account for all gains, profits and advantages de-
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`rived by Defendants from the sale of their infringing merchandise bearing the Bragg
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`marks, trade dress, copyrights, and that the award to Bragg be trebled as provided for
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`under 15 U.S.C. § 1117; that Bragg be awarded statutory damages under 15 U.S.C.
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`§ 1117(c) of up to $2 million for each trademark or trade dress Defendants willfully
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`counterfeited and infringed.
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`7.
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`Defendant to pay Bragg’s costs with reasonable attorneys and investiga-
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`tors fees and prejudgment interest under 15 U.S.C. § 1117.
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`8.
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`Awarding punitive damages to Bragg for Defendants’ willful, malicious,
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`and bad faith conduct.
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`9.
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`Directing this Court retain jurisdiction to enable Bragg to apply to the
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`Court at any time for such further orders and interpretation or execution of any order
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`entered, for the modification of any such order, for the enforcement or compliance
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`therewith and for the punishment of any violations thereof.
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`10. Awarding to Bragg such other and further just and proper relief.
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`JURY DEMAND
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`Plaintiff demands a trial by jury on all issues triable to a jury.
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`Complaint
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`Bragg Live Food Products, LLC v. National
`Fruit Product Company, Incorporated, et al
`Case No: 2:22-cv-584
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`Case 2:22-cv-00584 Document 1 Filed 01/26/22 Page 14 of 14 Page ID #:14
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`January 26, 2022
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`/s/ Marina Lang
`Marina Lang
`SOCAL IP LAW GROUP LLP
`
`Attorney for Plaintiff Bragg.
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`
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`Complaint
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`Bragg Live Food Products, LLC v. National
`Fruit Product Company, Incorporated, et al
`Case No: 2:22-cv-584
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