Case: 2:22-cv-00087-WOB-EBA Doc #: 1 Filed: 07/05/22 Page: 1 of 18 - Page ID#: 1
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`TOMMY'S DESTINY, INC.,
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`and
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`POPPY, INC.,
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`v.
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`FURY ASIAN FOODS, INC.,
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`Plaintiffs,
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`Defendant.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF KENTUCKY
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`VERIFIED COMPLAINT
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`Case No.:
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`JURY TRIAL DEMANDED
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`Tommy's Destiny, Inc. and Poppy, Inc., by and through their undersigned counsel, file this
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`verified complaint for trademark infringement and unfair competition under federal and state law
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`against Fury Asian Foods, Inc. and allege as follows:
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`NATURE OF THE CASE
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`1.
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`This is an action for trademark infringement and unfair competition under the
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`Lanham Act, 15 U.S.C. § 1051, et seq., and Kentucky common law.
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`2.
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`Plaintiffs are commonly-owned, family-run businesses that own and operate two
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`Japanese hibachi-style restaurants in the greater Cincinnati metropolitan region under the name or
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`trademark "Sakura Japanese Steakhouse." "Sakura," the predominant term in Plaintiffs' restaurant
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`name and for which they own common law trademark rights, is a word with Japanese origins
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`meaning "cherry blossom." Plaintiffs opened their first Sakura Japanese Steakhouse restaurant in
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`Lawrenceburg, Indiana in 2004 and opened their second Sakura Japanese Steakhouse restaurant in
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`Cincinnati, Ohio in 2008. Both restaurants have been in continuous operation under the Sakura
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`Japanese Steakhouse name and trademark since their openings. Since opening these restaurants,
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`Plaintiffs have developed significant consumer recognition, goodwill, and reputation in the Sakura
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`trademark, including with consumers in the areas of Ohio, Indiana, and Kentucky that comprise
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`the greater Cincinnati metropolitan region and surrounding areas.
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`3.
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`The United States Census Bureau's designates the Cincinnati metropolitan region
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`to include the Ohio counties of Hamilton, Clermont, Warren, Butler, and Brown; the Indiana
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`counties of Dearborn, Franklin, Ohio, and Union; and the Kentucky counties of Boone, Kenton,
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`Campbell, Gallatin, Grant, Pendleton, and Bracken ("Cincinnati Metropolitan Region") (see
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`https://en.wikipedia.org/wiki/Cincinnati_metropolitan_area)).
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`4.
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`Defendant is making plans to open and operate a Japanese hibachi-style restaurant
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`under the exact same name as Plaintiffs' restaurants, i.e., "Sakura Japanese Steakhouse" or under
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`the confusingly similar "Saku Japanese Steakhouse." "Saku" also has Japanese origins and, similar
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`to "Sakura," means "blossom" or "bloom" and is spelled and pronounced much like "Sakura."
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`5.
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`Plaintiffs' understanding is that Defendant's restaurant will be located in Newport,
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`Kentucky, which is within the greater Cincinnati Metropolitan Region, just 32.2 miles from
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`Plaintiffs' Lawrenceburg location and just 15.9 miles from Plaintiffs' Cincinnati location, and will
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`serve the same or similar consumers of the Japanese hibachi-style restaurant experience as
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`Plaintiffs' current restaurants.
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`6.
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`Defendant's conduct constitutes trademark infringement and unfair competition
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`under federal and state common law and demonstrates Defendant's attempt to trade off and profit
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`from the reputation and goodwill Plaintiffs have developed over more than a decade and a half of
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`service to the greater Cincinnati Metropolitan Region.
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`7.
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`Despite Plaintiffs' efforts to resolve this matter without judicial intervention,
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`Defendant has made it clear that it does not intend to stop its wrongful conduct unless forced to do
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`so by a Court. Therefore, Plaintiffs submit this verified complaint to address the harm caused by
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`Defendant, including irreparable harm, to recover monetary damages resulting from Defendant's
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`unlawful actions, and to enjoin Defendant's willful trademark infringement and unfair competition.
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`THE PARTIES
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`8.
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`Plaintiff Tommy's Destiny, Inc. ("Tommy's Destiny") is an Ohio corporation owned
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`and operated by John Anevski with a corporate address of 6800 Cambridge Grove Court, Cleves,
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`OH, 45002 (Hamilton County). Tommy's Destiny runs the "Sakura Japanese Steakhouse & Sushi"
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`located at 5510 Rybolt Road, Cincinnati, OH 45248, which has been in continuous operation under
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`the same trademark since 2008.
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`9.
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`Plaintiff Poppy, Inc. ("Poppy") is an Indiana corporation owned and operated by
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`John Anevski with a corporate address of 208 Walnut Street, Lawrenceburg, IN, 47025 (Dearborn
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`County). Poppy runs the "Sakura Japanese Steakhouse" located at 1059 West Eads Parkway,
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`Lawrenceburg, IN 47025, which has been in continuous operation under the same trademark since
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`2004.
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`10.
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`On information and belief, Defendant is a Kentucky corporation owned and
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`operated by Azhen Qiu with a corporate address of 165 Pavilion Parkway, Newport, KY 41071
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`(Campbell County).
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`JURISDICTION AND VENUE
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`11.
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`This Court has subject matter jurisdiction over Plaintiffs' federal statutory claims
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`based on the Lanham Act under 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338.
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`12.
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`This Court has subject matter jurisdiction over Plaintiffs' state common law claims
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`under either (1) 28 U.S.C. § 1332 (diversity jurisdiction) because the amount in controversy
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`between the diverse parties at issue here exceeds the jurisdictional amount or (2) 28 U.S.C. § 1367
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`(supplemental jurisdiction) because Plaintiffs' state common law claims arise from the same case
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`or controversy as Plaintiffs' federal statutory claims.
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`13.
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`The Court has personal jurisdiction over Defendant at least because Defendant
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`resides within the jurisdiction of this Court by virtue of being a Kentucky corporation with a
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`principal place of business at 165 Pavilion Parkway, Newport, KY 41071 (Campbell County),
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`because Defendant as a Kentucky corporation with a principal place of business located at 165
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`Pavilion Parkway, Newport, KY 41071 has consented to the jurisdiction of this Court, because
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`Defendant's wrongful conduct has taken place within this Court's jurisdiction, and because a
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`substantial portion of the operative facts of wrongdoing alleged herein have taken place within this
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`jurisdiction, in Campbell County.
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`14.
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`Venue is proper in this Court under 28 U.S.C. § 1391.
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`FACTUAL BACKGROUND
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`Plaintiffs and Their Trademarks
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`15.
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`16.
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`17.
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`"Sakura" is a Japanese word for "cherry blossom" (see Exhibit A).
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`"Saku" is a Japanese word for "blossom" or "bloom" (see Exhibit B).
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`Plaintiffs' restaurants are Japanese hibachi-style restaurants where consumers have
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`the option to sit at tables immediately adjacent the grill where their food is being prepared. Often
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`the chef interacts with the consumers as their food is prepared and demonstrates entertaining
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`cooking techniques to the consumers that add to the experience of the Japanese hibachi-style
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`restaurant. Plaintiffs have advertised and promoted their "Sakura Japanese Steakhouse"
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`restaurants as Japanese hibachi-style restaurants and provided this type of dining experience to
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`consumers since their inception.
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`18.
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`There are other "Sakura" Japanese hibachi-style restaurants in the United States that
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`are not affiliated with Plaintiffs' restaurants. Those restaurants operate in different geographic
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`regions than Plaintiffs restaurants. There are no federal trademark registrations for the trademark
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`"Sakura Japanese Steakhouse" or "Sakura" alone used in connection with Japanese hibachi-style
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`restaurants. On information and belief, each of the Sakura Japanese hibachi-style restaurants
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`located in other geographic locations rely on common law trademark rights in their respective
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`geographic regions as Plaintiffs are doing in this matter.
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`19.
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`Until the events leading up to this complaint, Plaintiffs' "Sakura" restaurants have
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`been the only Japanese hibachi-style steakhouses in the greater Cincinnati Metropolitan Region
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`operating under the name or trademark "Sakura Japanese Steakhouse" or a name or trademark
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`containing the word "Sakura" since at least 2004. An internet search now shows Defendant's
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`planned location to be the only other "Sakura Japanese Steakhouse" in Newport Kentucky (see
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`Exhibit C). On information and belief, Defendant's planned restaurant will be a Japanese hibachi-
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`style restaurant as described above.
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`20.
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`Plaintiffs spend $15,000 annually on advertising and promoting their respective
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`restaurants under the "Sakura Japanese Steakhouse" trademark, including to consumers in the
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`counties of northern Kentucky, such as Boone, Kenton, Campbell, Carroll, Gallatin, Owen, Grant,
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`Pendleton, and Bracken.
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`21.
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`Plaintiffs' efforts to advertise and promote their respective restaurants under the
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`"Sakura Japanese Steakhouse" trademark in the past have included running a front page
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`advertisement and inside advertisement in the April-May 2019 Greater Cincinnati/Northern
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`Kentucky edition of Prestige Living magazine (see Exhibit D) and running several Facebook ads
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`for jobs and services (see Exhibit E). These advertising and promotional efforts target the entire
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`greater Cincinnati Metropolitan Region, including the counties of northern Kentucky, such as
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`Boone, Kenton, Campbell, Carroll, Gallatin, Owen, Grant, Pendleton, and Bracken.
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`22.
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`Plaintiffs own and maintain a website, www.sakuracincy.com, to advertise and
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`promote their respective restaurants under the "Sakura Japanese Steakhouse" trademark (see
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`Exhibit F). Plaintiffs' website emphasizes the "Sakura" trademark and promotes both of their
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`locations in Lawrenceburg and Cincinnati. Plaintiffs' website is available worldwide, including to
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`consumers in the entire greater Cincinnati Metropolitan Region, such as in the counties of northern
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`Kentucky, such as Boone, Kenton, Campbell, Carroll, Gallatin, Owen, Grant, Pendleton, and
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`Bracken.
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`23.
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`Plaintiffs' Lawrenceburg, Indiana location is located just 3.2 miles from Hollywood
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`Casino in Lawrenceburg, Indiana (see Exhibit G). Hollywood Casino is well-known to consumers
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`in the Cincinnati Metropolitan Region, including consumers in the counties of northern Kentucky,
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`such as Boone, Kenton, Campbell, Grant, Gallatin, and Bracken counties. Plaintiffs'
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`Lawrenceburg location and the Hollywood Casino are often promoted in the same tourism
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`resources (see e.g., Exhibit H).
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`24.
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`Plaintiffs' reservation books demonstrate that their "Sakura Japanese Steakhouse"
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`restaurants are known and frequented by consumers from Kentucky (see Exhibit I). When taking
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`reservations, the staff at Plaintiffs' restaurants obtain phone number from customers making
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`reservations. Copies of the reservation books submitted with this complaint show that many of
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`customers making reservations come from areas of Kentucky with 859 and 502 area codes.
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`Although Plaintiffs have submitted selected pages from their respective reservation books from
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`the past 3 months, Plaintiffs have available for inspection by the Court similar reservation book
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`pages showing reservations from customers from areas of Kentucky with 859 and 502 area codes
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`since the openings of the "Sakura Japanese Steakhouses" in Lawrenceburg and Cincinnati.
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`25.
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`Plaintiffs' "Sakura" trademark is inherently distinctive as used in connection with
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`the goods and services that Plaintiffs sell in connection with the mark. Accordingly, Plaintiffs own
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`common law trademark rights in connection with the goods and services they sell under or in
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`connection with the Sakura Japanese Steakhouse trademark.
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`26. Moreover, Plaintiffs have used the "Sakura Japanese Steakhouse" mark in
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`commerce since 2004. Plaintiffs have also placed a significant investment of resources in
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`promoting and marketing their restaurants under the "Sakura Japanese Steakhouse" trademark.
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`Through this use and investment, Plaintiffs have developed and fostered a substantial and well-
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`earned reputation for excellence and significant goodwill with consumers for their "Sakura
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`Japanese Steakhouse" restaurants and consumers have come to associate the "Sakura Japanese
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`Steakhouse" mark exclusively with Plaintiffs as the source of Plaintiffs' goods and services.
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`27.
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`Plaintiffs own common law trademark rights in connection with the goods and
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`services they sell under or in connection with the "Sakura" trademark.
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`28.
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`Plaintiffs hold common law rights in the greater Cincinnati Metropolitan Region
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`and surrounding areas. Pertinent to this action, the greater Cincinnati Metropolitan Region and
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`surrounding areas include the counties of northern Kentucky, such as Boone, Kenton, Campbell,
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`Carroll, Gallatin, Owen, Grant, Pendleton, and Bracken.
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`29.
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`Alternatively, Plaintiffs' common law rights include the geographic areas in which
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`Plaintiffs use their respective rights and into which Plaintiffs may naturally expect to expand their
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`use of the "Sakura Japanese Steakhouse" trademark. Pertinent to this action, the geographic areas
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`into which Plaintiffs may naturally expect to expand include the counties of northern Kentucky,
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`such as Boone, Kenton, Campbell, Carroll, Gallatin, Owen, Grant, Pendleton, and Bracken.
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`7
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`Defendant and Its Wrongful Conduct
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`30.
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`On June 2, 2021, Defendant, Fury Asian Foods, Inc., was incorporated as a
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`Kentucky corporation (see Exhibit J).
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`31.
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`On January 10, 2022, Defendant applied for a Certificate of Assumed Name in
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`Kentucky for "Sakura Japanese Steakhouse" (see Exhibit K). As noted above, this is the same
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`name as Plaintiffs have been operating restaurants under since 2004.
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`32.
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`On May 4, 2022, Defendant filed for a Certificate of Assumed Name in Kentucky
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`for "Saku Japanese Steakhouse" (see Exhibit L).
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`33.
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`On information and belief, Defendant plans to open, or has opened, a Japanese
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`hibachi-style restaurant at 165 Pavilion Parkway, Newport, KY 41071 under either the trademark
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`or assumed name "Sakura Japanese Steakhouse" or "Saku Japanese Steakhouse."
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`Additional Background
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`34.
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`Defendant's use of "Sakura" or "Saku" in connection with a Japanese hibachi-style
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`restaurant is confusingly similar to Plaintiffs' use of the same or similar marks in connection with
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`the same or similar services. Indeed, on information and belief, Defendant intends to use the exact
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`same or similar mark on the exact same style of restaurant and Defendant intends to do so less than
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`33 miles away from Plaintiffs' Lawrenceburg, Indiana location and less than 16 miles away from
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`Plaintiffs' Cincinnati, Ohio location.
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`35.
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`If Defendant uses the "Sakura Japanese Steakhouse" mark, it will involve the use
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`the dominant word "Sakura" for a trademark identical in sight, sound, appearance, and connotation
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`to the mark that Plaintiffs use on identical restaurant services. If Defendant uses the "Saku
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`Japanese Steakhouse" mark, "Saku" is confusingly similar in sight, appearance, and connotation
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`to the mark that Plaintiffs use.
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`36.
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`Defendant's infringement has already caused several instances of actual confusion
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`between Plaintiffs, on one hand, and Defendant, on the other. For instance, on March 31, 2022, a
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`LINK NKY article referenced Defendant's planned location for its restaurant and stated "This
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`opening will be the Japanese hibachi and sushi restaurant's first Kentucky location, with two other
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`locations in Ohio and one Indiana," a clear reference to Plaintiffs' Lawrenceburg and Cincinnati
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`locations
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`for
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`restaurants operated under
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`the
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`same
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`trademark
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`(see Exhibit M,
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`https://linknky.com/business/2022/03/31/japanese-steakhouse-to-replace-old-flipfdaddys-
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`lcoation-at-the-newport-pavillion/).
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`37.
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`Defendant has advertised four employment opportunities on the career website,
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`Indeed.com, using the "Sakura Japanese Steakhouse" trademark (see Exhibit N). Plaintiffs have
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`received several reports of general manager candidates being confused about "which Sakura
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`location" was hiring, asking "if the Newport or the Cincinnati location was hiring?"
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`38.
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`On another occasion, a customer of Plaintiffs mistakenly assumed Defendant's
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`location to be part of Plaintiffs' organizations on her Facebook page as evidenced by a March 31,
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`2022, Facebook post (see Exhibit O).
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`39.
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`Also, at both of Plaintiffs' locations, restaurant staff continue to field numerous calls
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`from consumers seeking to make reservations at the "Newport location" even though Plaintiffs do
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`not operate a restaurant in Newport.
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`40.
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`On information and belief, the forgoing represents a small sample of individuals,
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`including consumers, who are confused between Plaintiffs and Defendant or mistakenly believe
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`that Plaintiffs are associated with Defendant or authorized Defendant's wrongful conduct because
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`examples of such confusion continue to occur (see Exhibit S).
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`Defendant's Ongoing Willful Trademark Infringement
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`41.
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`On April 2, 2022, Plaintiffs' counsel sent a cease and desist letter to Defendant,
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`setting forth the basis for Plaintiffs' claims for trademark infringement and unfair competition with
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`respect to Plaintiffs' long-held common law trademark rights in the Sakura Japanese Steakhouse
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`mark (see Exhibit P). In this letter, Plaintiffs' counsel explained the origins and basis for Plaintiffs'
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`trademark rights, identified multiple instances of actual confusion that had already occurred since
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`Defendant began forecasting the opening of its new "Sakura Japanese Steakhouse" restaurant in
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`Newport, Kentucky, and detailed the action that Plaintiffs required of Defendant to avoid Plaintiffs'
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`pursuit of legal action.
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`42.
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`On April 14, 2022, Defendant's counsel responded via letter, which did not claim
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`that Defendant's trademark and Plaintiffs' trademark are not confusingly similar, but rather set the
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`untenable position that Plaintiffs' common law trademark rights stop at the border between Indiana
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`and Ohio, on the one hand, and Kentucky and Ohio, on the other hand (see Exhibit Q). Based on
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`Defendant's position as set forth in its counsel's letter, Plaintiffs' and Defendant's respective views
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`of this dispute are irreconcilable.
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`43.
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`Defendant is knowingly planning to use or continuing to use the exact same or
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`confusingly similar mark in connection with the exact same or similar goods and services as those
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`offered and promoted by Plaintiffs, even in light of the examples of actual confusion set forth
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`herein. There exists, and will continue to exist, actual and likely confusion among the public that
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`Defendant is affiliated with Plaintiffs, which is causing and will continue to cause Plaintiffs
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`irreparable harm.
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`44.
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`The most recent information Plaintiffs possess shows that Defendant will use the
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`"Saku" name in connection with its hibachi-style Japanese restaurant (see Exhibit R, taken May
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`10
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`26, 2022). On July 1, 2022, counsel for the parties spoke by phone, during which counsel for
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`Defendant confirmed that Defendant was planning to use the "Saku" name for its restaurant. On
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`information and belief, Defendant continues to hold Certificates of Assumed Name for both
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`"Sakura Japanese Steakhouse" and "Saku Japanese Steakhouse."
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`FIRST CLAIM FOR RELIEF
`(Trademark Infringement, False Designation of Origin and
`Unfair Competition under the Lanham Act § 43(a), 15 U.S.C. § 1125(a))
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`Plaintiffs incorporate each of the proceeding paragraphs as though fully set forth
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`45.
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`herein.
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`46.
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`Plaintiffs have valid and protectable common law trademark rights in the "Sakura"
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`and "Sakura Japanese Steakhouse" mark.
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`47.
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`The geographic scope of Plaintiffs' common law trademark rights in the "Sakura"
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`and "Sakura Japanese Steakhouse" marks extends throughout the greater Cincinnati Metropolitan
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`Region and surrounding areas, including the Ohio counties of Preble, Montgomery, Greene,
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`Clinton, Highland, Brown, and Adams; the Indiana counties of Fayette, Rush, Decatur, Ripley,
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`Switzerland, and Jefferson; and the Kentucky counties of Carroll and Owen.
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`48.
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`Defendant's use of "Sakura" or "Saku" in connection with Japanese hibachi-style
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`restaurants in Newport, Kentucky infringes Plaintiffs' common law rights to the "Sakura Japanese
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`Steakhouse" mark in the greater Cincinnati Metropolitan Region and surrounding area.
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`49.
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`Defendant's use of "Sakura" or "Saku" is causing and will continue to cause
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`confusion, deception or mistake in the minds of consumers as to the source or origin of Plaintiffs'
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`goods and services.
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`50. Moreover, Defendant's use of "Sakura" or "Saku" is creating and will continue to
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`create the mistaken impression in the minds of consumers that Defendant and its goods and
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`services are endorsed, associated with, or authorized by Plaintiffs.
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`51.
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`On information and belief, Defendant knew or should have known that Plaintiffs
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`were the owners of the Sakura Japanese Steakhouse mark for use in connection with its services
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`before Defendants began using the "Sakura Japanese Steakhouse" or "Saku Japanese Steakhouse"
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`for the same services.
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`52.
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`As a proximate result of Defendant's wrongful acts complained of herein, Plaintiffs
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`have suffered and will continue to suffer irreparable harm to their respective businesses, reputation,
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`and good will.
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`53.
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`As a proximate result of Defendant's wrongful acts complained of herein, Plaintiffs
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`have and will continue to suffer monetary harm compensable by damages and disgorgement of
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`profits.
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`54.
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`Defendant's conduct complained of herein constitutes willful federal trademark
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`infringement under the Lanham Act § 43(a), 15 U.S.C. § 1125(a).
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`SECOND CLAIM FOR RELIEF
`(Trademark Infringement and Unfair Competition under the Common Law)
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`Plaintiffs incorporate each of the proceeding paragraphs as though fully set forth
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`55.
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`herein.
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`56.
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`Plaintiffs have valid and enforceable common law trademark rights in the "Sakura"
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`and "Sakura Japanese Steakhouse" marks.
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`57.
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`The geographic scope of Plaintiffs' common law trademark rights in the "Sakura
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`Japanese Steakhouse" mark extends throughout the greater Cincinnati Metropolitan Region and
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`surrounding areas, including the Ohio counties of Preble, Montgomery, Greene, Clinton, Highland,
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`Brown, and Adams; the Indiana counties of Fayette, Rush, Decatur, Ripley, Switzerland, and
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`Jefferson; and the Kentucky counties of Carroll and Owen.
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`12
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`58.
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`Defendant's use of "Sakura" or "Saku" in connection with Japanese hibachi-style
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`restaurants in Newport, Kentucky infringes Plaintiffs' common law rights to the "Sakura Japanese
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`Steakhouse" mark in the greater Cincinnati Metropolitan Region and surrounding area.
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`59.
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`Defendant's use of "Sakura" or "Saku" is causing or likely to cause confusion,
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`deception or mistake in the minds of consumers as to the source or origin of Plaintiffs' goods and
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`services.
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`60. Moreover, Defendant's use of "Sakura" or "Saku" is creating or likely to create the
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`mistaken impression in the minds of consumers that Defendant and its goods and services are
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`endorsed, associated with, or authorized by Plaintiffs.
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`61.
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`As a proximate result of Defendant's wrongful acts complained of herein, Plaintiffs
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`have suffered and will continue to suffer irreparable harm to their respective businesses, reputation,
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`and good will.
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`62.
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`As a proximate result of Defendant's wrongful acts complained of herein, Plaintiffs
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`have and will continue to suffer monetary harm compensable by damages and disgorgement of
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`profits.
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`63.
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`Defendant's conduct complained of herein constitutes trademark infringement
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`under the common law.
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`GROUNDS FOR PRELIMINARY AND PERMANENT INJUNCTION
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`64.
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`Plaintiffs incorporate into Count III each of the proceeding paragraphs as though
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`fully set forth herein.
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`65.
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`Plaintiffs are likely to succeed, and will succeed, in demonstrating that Defendant's
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`use of "Sakura" or "Saku" in connection with its Japanese hibachi-style restaurants infringes
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`Plaintiffs' common law trademark rights and constitutes both trademark infringement and unfair
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`13
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`competition.
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`66.
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`Defendant's trademark infringement and unfair competition, as described
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`throughout this verified complaint, are harmful to both consumers and to Plaintiffs. The nature of
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`the harm to Plaintiffs is presumed by law to be irreparable. See 15 U.S.C. § 1116(a). The harm to
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`Plaintiffs is also irreparable because it harms the reputation and good will with consumers that
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`Plaintiffs have established in their mark that cannot be measured in monetary terms.
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`67.
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`The balance of the harms weighs in favor of granting Plaintiffs equitable relief,
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`including injunctions that prevent Defendant from operating a restaurant within the greater
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`Cincinnati Metropolitan Region and surrounding area. As shown, Plaintiffs have operated
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`Japanese hibachi-style restaurants in the greater Cincinnati Metropolitan Region for nearly two
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`decades, while Defendant, on information and belief, has yet to open its restaurant under the
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`"Sakura" trademark.
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`68.
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`The public's interest under circumstances such as these lies in avoiding consumer
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`confusion and upholding valid and protectable trademark rights.
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`69.
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`On information and belief, unless enjoined by the Court, Defendant will continue
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`its trademark infringement and unfair competition, thereby continuing to cause harm to the public
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`and to Plaintiffs.
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`PRAYER FOR RELIEF
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`
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`WHEREFORE, Plaintiffs request all relief that the Court deems appropriate and
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`specifically that the Court:
`
`A.
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`Temporarily, preliminarily, and permanently enjoins and restrains Defendant from:
`
`1.
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`using the trademark "Sakura Japanese Steakhouse" or any colorable
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`imitation of "Sakura Japanese Steakhouse", including, but not limited to, the term "Sakura" or
`
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`Case: 2:22-cv-00087-WOB-EBA Doc #: 1 Filed: 07/05/22 Page: 15 of 18 - Page ID#: 15
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`"Saku" in any respect, in relation to Defendant's restaurant name and trademark, advertising for
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`such restaurant (including within an internet domain name), or as a component of its restaurant
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`décor located at 165 Pavilion Parkway, Newport, Kentucky 41071, or at any other location falling
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`within the geographic territory of Plaintiffs' common law trademark rights, throughout the greater
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`Cincinnati metropolitan region and surrounding areas, including the Ohio counties of Hamilton,
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`Clermont, Warren, Butler, and Brown; the Indiana counties of Dearborn, Franklin, Ohio, and
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`Union; and the Kentucky counties of Boone, Kenton, Campbell, Gallatin, Grant, Pendleton, and
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`Bracken.
`
`2.
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`committing any other acts calculated or likely to cause confusion or mistake
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`in the mind of consumers within the geographic territory of Plaintiffs' common law trademark
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`rights (defined above) or to lead persons into the erroneous belief that Defendant or any of
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`Defendant's services, organizations, or endeavors are connected or associated with Plaintiffs'
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`"Sakura Japanese Steakhouse" restaurants;
`
`3.
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`competing unfairly with Plaintiffs' in any manner, including, but not limited
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`to, using "Sakura" as a meta-tag in Google advertising such that Defendant's restaurant appears
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`when consumers search for "Sakura" restaurants in the Cincinnati metropolitan area;
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`4.
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`5.
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`engaging in unfair and deceptive trade practices against Plaintiffs;
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`maintaining any use of or reference to the "Sakura" or "Saku" name or
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`trademark on any website, signage, social media page, or advertising literature over which
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`Defendant has control.
`
`B.
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`Order Defendant to file with the Court and serve upon the undersigned counsel for
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`Defendant within 5 business days of entry of any temporary restraining order or preliminary
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`injunction, or both, a report in writing under oath setting forth in detail the form and manner in
`
`15
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`Case: 2:22-cv-00087-WOB-EBA Doc #: 1 Filed: 07/05/22 Page: 16 of 18 - Page ID#: 16
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`which it has complied with said injunction, pursuant to 15 U.S.C. § 1116(a);
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`C.
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`Direct Defendant to destroy all materials in its possession, custody, or control,
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`which use or otherwise contain the "Sakura" or "Saku" name or trademark, under 15 U.S.C. §
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`1118;
`
`D.
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`Require Defendant, under 15 U.S.C. § 1117, to account and disgorge to Plaintiffs
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`any and all profits derived by it, and account and pay unto Plaintiffs for all damages sustained by
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`Plaintiffs by reason of Defendant's acts complained of in this complaint;
`
`E.
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`Impose treble damages against Defendant for its willful trademark infringement,
`
`under 15 U.S.C. § 1117;
`
`F.
`
`Declare this case to be exceptional, under 15 U.S.C. § 1117, and award Plaintiffs
`
`their reasonable attorney's fees, costs, and other expenses incurred on account of this civil action,
`
`under 15 U.S.C. § 1117;
`
`G.
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`Award as appropriate to Plaintiffs all pre-judgment and post-judgement interests
`
`and costs;
`
`H.
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`Require Defendant to withdraw any federal or state trademark, business name, or
`
`trade name application or registration for any designation containing "Sakura Japanese
`
`Steakhouse" or colorable variation thereof;
`
`I.
`
`Require Defendant to transfer ownership of its Certificates of Assumed Name for
`
`"Sakura Japanese Steakhouse," "Saku Japanese Steakhouse," and any other Certificates of
`
`Assumed Name that incorporate "Sakura," "Saku," or similar terms to Plaintiffs; and
`
`J.
`
`Award Plaintiffs any such other and further relief the Court may deem just and
`
`proper.
`
`
`
`16
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`Case: 2:22-cv-00087-WOB-EBA Doc #: 1 Filed: 07/05/22 Page: 17 of 18 - Page ID#: 17
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`DEMAND FOR JURY TRIAL
`
`
`
`Plaintiffs demand a trial by jury for all issues so triable.
`
`Respectfully submitted,
`
`
`
`/s/ Zachary D. Bahorik
`Zachary D. Bahorik (KY Bar No. 96569)
`ULMER & BERNE, LLP
`312 Walnut Street, Suite 1400
`Cincinnati, OH 45202-4029
`Tel: 513-698-5000
`Fax: 513-698-5001
`Email: zbahorik@ulmer.com
`
`Attorneys for Plaintiffs
`Tommy's Destiny Inc. and Poppy Inc.
`
`
`Date: July 5, 2022
`
`
`
`
`
`
`
`
`
`
`
`
`
`Of Counsel:
`
`John F. Bennett (pro hac vice forthcoming)
`Paul J. Linden (pro hac vice forthcoming)
`ULMER & BERNE, LLP
`312 Walnut Street, Suite 1400
`Cincinnati, OH 45202-4029
`Tel: 513-698-5000
`Fax: 513-698-5001
`Email: jbennett@ulmer.com
`
`plinden@ulmer.com
`
`Jocelyn C. Smith (pro hac vice
`forthcoming)
`ULMER & BERNE, LLP
`65 E. State Street, Suite 1100
`Columbus, OH 43215-4213
`Tel: 614-229-0000
`Fax: 614-229-0001
`Email: jcsmith@ulmer.com
`
`
`
`
`
`
`17
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`Case: 2:22-cv-00087-WOB-EBA Doc #: 1 Filed: 07/05/22 Page: 18 of 18 - Page ID#: 18
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`VERIFICATION
`
`I, John Anevski, declare as follows:
`
`1.
`
`I am President and Owner of Plaintiffs Tommy's Destiny, Inc. and Poppy, Inc.
`
`Accordingly, I am authorized to make this declaration on behalf of both Plaintiffs
`
`2.
`
`I verify that the foregoing Verified Complaint of Plaintiffs Tommy's Destiny, Inc.
`
`and Poppy, Inc., was prepared at my direction by counsel on behalf of both Plaintiffs, that I have
`
`read the Verified Complaint, and that I know the factual averments stated therein to be true and
`
`correct to the best of my knowledge, information, and belief. If called upon to testify, I will
`
`competently testify as to the factual matters stated in the foregoing Verified Complaint.
`
`3.
`
`I further verify that the exhibits filed wi