Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.1 Filed 08/06/21 Page 1 of 31
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`BREEZE SMOKE LLC,
`
`Plaintiff,
`
`vs.
`
`CASE NO.
`
`TRUCENTA HOLDINGS LLC,
`
`JURY TRIAL DEMANDED
`
`Defendant.
`
`VERIFIED COMPLAINT
`
`Plaintiff Breeze Smoke LLC (“Breeze Smoke”), by its undersigned attorneys
`
`Honigman LLP, for its Verified Complaint against Defendant Trucenta Holdings
`
`LLC (“Defendant” or “Trucenta”), alleges as follows:
`
`NATURE OF THE CASE
`This is an action for trademark infringement and unfair competition
`
`1.
`
`under the Lanham Act, 15 U.S.C. §1051, et seq., as well as related state and common
`
`law claims, in which Breeze Smoke is seeking immediate injunctive relief and
`
`monetary damages for Defendant’s unlawful infringement of Breeze Smoke’s
`
`valuable trademarks. Specifically, Defendant is a Michigan-based cannabis
`
`company that is in the business of offering and selling cannabis-related goods and
`
`services and smokers’ articles—including vaping devices, e-cigarette liquids,
`
`ashtrays, lighters, tobacco grinders, cigarette rolling papers, and the like—to
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`BREEZE SMOKE LLC,
`
`Plaintiff,
`
`vs.
`
`CASE NO.
`
`TRUCENTA HOLDINGS LLC,
`
`JURY TRIAL DEMANDED
`
`Defendant.
`
`VERIFIED COMPLAINT
`
`Plaintiff Breeze Smoke LLC (“Breeze Smoke”), by its undersigned attorneys
`
`Honigman LLP, for its Verified Complaint against Defendant Trucenta Holdings
`
`LLC (“Defendant” or “Trucenta”), alleges as follows:
`
`NATURE OF THE CASE
`This is an action for trademark infringement and unfair competition
`
`1.
`
`under the Lanham Act, 15 U.S.C. §1051, et seq., as well as related state and common
`
`law claims, in which Breeze Smoke is seeking immediate injunctive relief and
`
`monetary damages for Defendant’s unlawful infringement of Breeze Smoke’s
`
`valuable trademarks. Specifically, Defendant is a Michigan-based cannabis
`
`company that is in the business of offering and selling cannabis-related goods and
`
`services and smokers’ articles—including vaping devices, e-cigarette liquids,
`
`ashtrays, lighters, tobacco grinders, cigarette rolling papers, and the like—to
`
`
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.2 Filed 08/06/21 Page 2 of 31
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`consumers in Michigan and elsewhere. Defendant is infringing Breeze Smoke’s
`
`rights in its well-known BREEZE trademarks by using them to mislead consumers
`
`into believing there exists some affiliation, sponsorship, or connection between
`
`Breeze Smoke and Defendant when there is none, and by deliberately trading off of
`
`the extensive goodwill that Breeze Smoke has developed and is continuing to
`
`develop in its BREEZE trademarks.
`
`PARTIES, JURISDICTION AND VENUE
`Breeze Smoke is a limited liability company organized and existing
`
`2.
`
`under the laws of the State of Michigan, with its principal place of business at 4654
`
`Lilly Ct., West Bloomfield, Michigan 48323.
`
`3.
`
`Upon information and belief, Defendant is a Michigan limited liability
`
`company with its principal place of business at 1675 E. Maple, Troy, Michigan
`
`48083.
`
`4.
`
`Upon information and belief, Defendant is in the business of marketing,
`
`offering, and selling various cannabis-related goods and services and smokers’
`
`articles, including vaping devices, e-cigarette liquids, ashtrays, lighters, tobacco
`
`grinders, cigarette rolling papers, and the like.
`
`5.
`
`Personal jurisdiction over Defendant is appropriate because Defendant
`
`is located within this state and is subject to the general personal jurisdiction of this
`
`Court. Personal jurisdiction over Defendant is also appropriate because Defendant
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`2
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`owns and operates its BREEZE cannabis store that is at issue in this litigation within
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`this District and because it offers and sells infringing BREEZE products and services
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`within this District to customers within this District.
`
`6.
`
`The Court has subject matter jurisdiction over this civil action pursuant
`
`to 15 U.S.C. § 1121(a) and 28 U.S.C. §§ 1331 and 1338 in that this case arises under
`
`the Lanham Act (15 U.S.C. § 1051, et seq.), as well as 28 U.S.C. § 1367, and
`
`pursuant to the statutes and common law of the State of Michigan.
`
`7.
`
`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)–(d).
`
`BACKGROUND
`Breeze Smoke’s BREEZE Marks
`Breeze Smoke is engaged in the business of manufacturing and selling
`
`8.
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`a variety of tobacco and vaping products and smokers’ articles, including disposable
`
`electronic vaping devices, under its BREEZE trademarks.
`
`9.
`
`Since at least as early as May 2019, Breeze Smoke has continuously
`
`used its BREEZE trademarks in connection with vaping products and related
`
`products in Michigan and throughout the United States. A representative image of
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`products Breeze Smoke began selling under its BREEZE trademarks in or before
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`May 2019 follows:
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`3
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`10.
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`In addition to its widespread and continuous use of the BREEZE
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`trademarks, Breeze Smoke owns United States Trademark Application No.
`
`90/012,117 for the mark BREEZE SMOKE for “Disposable Electronic Cigarettes.”
`
`A copy of the Trademark Electronic Search System (“TESS”) page from the United
`
`States Patent and Trademark Office (“USPTO”) website showing the details of the
`
`BREEZE SMOKE application is attached hereto as Exhibit A and incorporated
`
`herein by reference.
`
`4
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`11.
`
`The BREEZE SMOKE application was filed on June 20, 2020 based
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`on actual use of the mark in United States commerce and asserts use in United States
`
`commerce since at least as early as March 1, 2020.
`
`12. Breeze Smoke also owns United States Trademark Application No.
`
`90/246,820 for the mark BREEZE PLUS for “Disposable Electronic Cigarettes.” A
`
`copy of the TESS page from the USPTO website showing the details of the BREEZE
`
`PLUS application is attached hereto as Exhibit B and incorporated herein by
`
`reference.
`
`13.
`
`The BREEZE PLUS application was filed on October 10, 2020 based
`
`on actual use of the mark in United States commerce and asserts use in United States
`
`commerce since at least as early as March 1, 2020.
`
`14. Breeze Smoke also owns United States Trademark Application No.
`
`90/555,765 for the mark BREEZE PRO for “Disposable Electronic Cigarettes.” A
`
`copy of the TESS page from the USPTO website showing the details of the BREEZE
`
`PRO application is attached hereto as Exhibit C and incorporated herein by
`
`reference.
`
`15.
`
`The BREEZE PRO application was filed on March 2, 2021 based on
`
`intent to use the mark in United States commerce.
`
`16. Breeze Smoke also owns United States Trademark Application No.
`
`90/650,997 for the mark BREEZE PALM for “cigarette wraps; cigarette rolling
`
`5
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`
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`papers; wraps in the nature of tobacco wraps; tobacco wraps; pre-rolled smoking
`
`cones; rolling paper cones.” A copy of the TESS page from the USPTO website
`
`showing the details of the BREEZE PALM application is attached hereto as
`
`Exhibit D and incorporated herein by reference.
`
`17.
`
`The BREEZE PALM application was filed on April 16, 2021 based on
`
`intent to use the mark in United States commerce.
`
`18. Breeze Smoke also owns common law trademark rights in the
`
`standalone mark BREEZE, which it has continuously used since at least May 2019.
`
`Examples of Breeze Smoke’s use of the standalone BREEZE mark in connection
`
`with its vaping products are shown below:
`
`6
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`19. Collectively, the BREEZE SMOKE application, the BREEZE PLUS
`
`application, the BREEZE PRO application, the BREEZE PALM application, Breeze
`
`Smoke’s common law rights in those marks, and Breeze Smoke’s common law
`
`rights in the standalone mark BREEZE, shall be referred to herein as the “BREEZE
`
`Marks.”
`
`20. Breeze Smoke’s BREEZE products sold under its BREEZE Marks are
`
`promoted, offered and sold through online retail platforms, including at Breeze
`
`7
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.8 Filed 08/06/21 Page 8 of 31
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`Smoke’s website www.breezesmoke.com, as well as at a substantial number of
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`bricks-and-mortar locations throughout Michigan and the United States.
`
`21. Breeze Smoke has spent significant time, effort, and resources
`
`establishing its BREEZE Marks in the minds of its customers and the public via
`
`advertisements and promotions,
`
`including
`
`through online advertising and
`
`promotion, as representative of Breeze Smoke’s high quality vaping products,
`
`smokers’ articles, and related goods.
`
`22. Breeze Smoke has generated substantial revenue from the sale of
`
`products and services under its BREEZE Marks.
`
`23. As a result of Breeze Smoke’s continuous use, extensive sales,
`
`advertising, and promotion of its products using its BREEZE Marks, the BREEZE
`
`Marks enjoy widespread recognition and an excellent reputation, and are recognized
`
`by the public as emanating exclusively from Breeze Smoke and representative of
`
`Breeze Smoke’s high quality products and services.
`
`24. As a result of Breeze Smoke’s efforts and commercial success in
`
`advertising, marketing and promoting products and services under the BREEZE
`
`Marks, Breeze Smoke has generated substantial and valuable goodwill in the
`
`BREEZE Marks, and the BREEZE Marks have become intangible assets of
`
`substantial commercial value to Breeze Smoke.
`
`8
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.9 Filed 08/06/21 Page 9 of 31
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`Defendants’ Willful and Infringing Use of the BREEZE Marks
`
`25.
`
`In or around February 2020, Breeze Smoke became aware that
`
`Defendant was and is marketing, offering and selling cannabis-related products and
`
`services, including vaping devices, e-cigarette liquids, ashtrays, lighters, tobacco
`
`grinders, cigarette rolling papers, and the like, under the trademark “BREEZE.”
`
`26. Upon information and belief, Trucenta markets, offers and sells its
`
`infringing BREEZE-branded cannabis-related products and services through its
`
`website at breeze.us and at a bricks-and-mortar location operating under the name
`
`and mark BREEZE at 24517 John R Rd., Hazel Park, MI 48030.
`
`27.
`
`Examples of Trucenta’s infringing use of the BREEZE mark in
`
`connection with the marketing, offer and sale of cannabis-related products and
`
`services are set forth in the image below:
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`9
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`28. Additional examples displaying Defendant’s infringing uses are
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`attached hereto as Exhibit E and incorporated herein by reference.
`
`29.
`
`In or around November 2020, Breeze Smoke also became aware that
`
`Defendant filed a number of United States Trademark Applications (and to date has
`
`received two United States Trademark Registrations) for marks comprised of or
`
`incorporating the term “BREEZE” covering smokers’ articles and goods ancillary
`
`or related to a cannabis business. A chart summarizing these applications and
`
`Filing
`Date
`
`Reg./
`First Use
`Dates
`11/2/2020 N/A
`(Filed
`Under
`Section
`1B)
`
`registrations is set forth below:
`
`Mark
`
`App./Reg.
`No.
`
`Goods
`
`1 BREEZE
`
`90/292,582 Class 3: Electronic
`cigarette liquid
`comprised of essential
`oils; to the extent any
`of the foregoing
`involves use of
`cannabis, such
`cannabis shall have a
`delta-9 THC
`concentration of not
`more than 0.3% on a
`dry weight basis
`Class 5: Plant extracts
`for pharmaceutical
`purposes, namely, for
`the treatment of
`nausea, anxiety, pain,
`glaucoma, seizures,
`multiple sclerosis and
`Crohn's Disease; to the
`
`10
`
`
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.11 Filed 08/06/21 Page 11 of 31
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`Mark
`
`App./Reg.
`No.
`
`Goods
`
`Filing
`Date
`
`Reg./
`First Use
`Dates
`
`extent any of the
`foregoing involves
`cannabis, such
`cannabis shall have a
`delta-9 THC
`concentration of not
`more than 0.3% on a
`dry weight basis
`Class 34: Electronic
`cigarette liquids
`comprised of flavoring
`in liquid form, other
`than essential oils, used
`to refill electronic
`cigarette cartridges; to
`the extent any of the
`foregoing involves use
`of cannabis, such
`cannabis shall have a
`delta-9 THC
`concentration of not
`more than 0.3% on a
`dry weight basis;
`smoking pipes;
`smoking pipe cleaners;
`electronic smoking
`pipes; oral vaporizers
`for smokers
`90/292,579 Class 3: Electronic
`cigarette liquid
`comprised of essential
`oils; to the extent any
`of the foregoing
`involves use of
`cannabis, such
`cannabis shall have a
`11
`
`11/2/2020 N/A
`(Filed
`Under
`Section
`1B)
`
`2
`
`
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.12 Filed 08/06/21 Page 12 of 31
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`Mark
`
`App./Reg.
`No.
`
`Goods
`
`Filing
`Date
`
`Reg./
`First Use
`Dates
`
`delta-9 THC
`concentration of not
`more than 0.3% on a
`dry weight basis
`Class 5: Plant extracts
`for pharmaceutical
`purposes, namely, for
`the treatment of
`nausea, anxiety, pain,
`glaucoma, seizures,
`multiple sclerosis and
`Crohn's Disease; to the
`extent any of the
`foregoing involves
`cannabis, such
`cannabis shall have a
`delta-9 THC
`concentration of not
`more than 0.3% on a
`dry weight basis
`Class 34: Electronic
`cigarette liquids
`comprised of flavoring
`in liquid form, other
`than essential oils, used
`to refill electronic
`cigarette cartridges; to
`the extent any of the
`foregoing involves use
`of cannabis, such
`cannabis shall have a
`delta-9 THC
`concentration of not
`more than 0.3% on a
`dry weight basis;
`smoking pipes;
`12
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.13 Filed 08/06/21 Page 13 of 31
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`Mark
`
`App./Reg.
`No.
`
`Goods
`
`Filing
`Date
`
`Reg./
`First Use
`Dates
`
`3 BREEZE
`
`4
`
`5
`
`11/2/2020 N/A
`(Filed
`Under
`Section
`1B)
`
`11/2/2020 N/A
`(Filed
`Under
`Section
`1B)
`
`11/2/2020 N/A
`(Filed
`Under
`Section
`1B)
`
`smoking pipe cleaners;
`electronic smoking
`pipes; oral vaporizers
`for smokers
`90/292,573 Class 7: Vacuum
`packaging machines
`Class 30: Candy;
`Candy bars
`Class 32: Bottled
`water
`90/292,568 Class 7: Vacuum
`packaging machines
`Class 30: Candy;
`Candy bars
`Class 32: Bottled
`water
`90/292,558 Class 14: Ornamental
`lapel pins
`Class 16: Decals;
`Posters; Stickers;
`Plastic food storage
`bags for household use
`Class 18: Handbags;
`Wallets; Backpacks;
`Book bags; Sports
`bags; All-purpose
`reusable carrying bags
`Class 21: Containers
`for household use;
`Insulating sleeve
`holders for beverage
`cans; Plastic storage
`
`13
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`
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.14 Filed 08/06/21 Page 14 of 31
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`Mark
`
`App./Reg.
`No.
`
`Goods
`
`Filing
`Date
`
`Reg./
`First Use
`Dates
`
`6 BREEZE
`
`11/2/2020 N/A
`(Filed
`Under
`Section
`1B)
`
`containers for domestic
`use; Plastic storage
`containers for
`household use;
`Portable coolers, non-
`electric
`Class 34: Ashtrays for
`smokers; Cigarette
`rolling papers;
`Smokers' rolling trays;
`Cigarette lighters;
`Tobacco grinders
`90/292,552 Class 14: Ornamental
`lapel pins
`Class 16: Decals;
`Posters; Stickers;
`Plastic food storage
`bags for household use
`Class 18: Handbags;
`Wallets; Backpacks;
`Book bags; Sports
`bags; All-purpose
`reusable carrying bags
`Class 21: Containers
`for household use;
`Insulating sleeve
`holders for beverage
`cans; Plastic storage
`containers for domestic
`use; Plastic storage
`containers for
`household use;
`Portable coolers, non-
`electric
`
`14
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.15 Filed 08/06/21 Page 15 of 31
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`Mark
`
`App./Reg.
`No.
`
`Goods
`
`Filing
`Date
`
`Reg./
`First Use
`Dates
`
`7 BREEZE
`
`Class 34: Cigarette
`rolling papers;
`Smokers' rolling trays
`90/256,675 Class 34: Ashtrays for
`smokers; Lighters for
`smokers; Tobacco
`grinders
`
`8 BREEZE
`
`6296005
`
`9
`
`6296004
`
`Class 25: Beanies;
`hats; hooded
`sweatshirts; long-
`sleeved shirts; shirts;
`sweaters; tank tops;
`graphic T-shirts; short-
`sleeved or long-sleeved
`T-shirts; sweat shirts;
`T-shirts; tee shirts;
`woolly hats
`Class 25: Beanies;
`hats; hooded
`sweatshirts; long-
`sleeved shirts; shirts;
`sweaters; tank tops;
`graphic T-shirts; short-
`sleeved or long-sleeved
`T-shirts; sweat shirts;
`T-shirts; tee shirts;
`woolly hats
`
`10/15/2020 N/A
`(Filed
`Under
`Section
`1B)
`6/19/2019 Reg.
`Date:
`3/16/2021
`
`Claimed
`First Use
`Date:
`4/6/2020
`
`6/19/2019 Reg.
`Date:
`3/16/2021
`
`Claimed
`First Use
`Date:
`4/6/2020
`
`30. Records from the Trademark Electronic Search System (“TESS”) of the
`
`United States Patent and Trademark Office reflecting the current status of these
`
`15
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`
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`applications and registrations are attached hereto as Exhibit F and incorporated
`
`herein by reference.
`
`31. Defendant is competing with Breeze Smoke in that it sells its cannabis-
`
`related products and services and smokers’ articles to the same or similar customers
`
`or the same or similar classes of customers as Breeze Smoke.
`
`32. Breeze Smoke has not licensed or otherwise authorized Defendant to
`
`use its highly valuable and well-established BREEZE Marks in any manner
`
`whatsoever.
`
`33. Upon information and belief, Defendant knew of Breeze Smoke’s prior
`
`use of the BREEZE Marks, was and is well aware of the goodwill and market value
`
`of Breeze Smoke’s BREEZE Marks, and intentionally chose to use the BREEZE
`
`Marks to suggest a false affiliation between Breeze Smoke and its goods and services
`
`on the one hand and Defendant and its goods and services on the other, or to confuse
`
`customers about the source of the parties’ respective goods.
`
`34.
`
`Through its unauthorized and infringing uses of the BREEZE Marks,
`
`Defendant is deliberately and improperly capitalizing upon the goodwill that Breeze
`
`Smoke has built up in its BREEZE Marks.
`
`35. Defendant’s unauthorized, unlawful and intentional use of the
`
`BREEZE Marks has caused, and will continue to cause, a likelihood of confusion
`
`among consumers and potential consumers as to the source or origin of Defendant’s
`
`16
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`products and services and the sponsorship or endorsement of those goods and
`
`services by Breeze Smoke.
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`36. As a direct and proximate result of Defendant’s unauthorized conduct,
`
`Breeze Smoke has been and will continue to be damaged by confusion among
`
`consumers and potential consumers as to Breeze Smoke’s association or connection
`
`with, or endorsement or authorization of, Defendant and/or its products and services,
`
`at least in part in ways that cannot be adequately measured or fully remedied by
`
`monetary damages.
`
`37. As a result of Defendant’s intentional misappropriation of the BREEZE
`
`Marks, Defendant has caused, and will continue to cause, irreparable injury to
`
`Breeze Smoke and has substantially damaged the value of Breeze Smoke’s BREEZE
`
`Marks.
`
`38. Defendant has unjustly enriched itself at Breeze Smoke’s expense by
`
`promoting and selling products and services in connection with the BREEZE Marks
`
`in a manner that appropriates and exploits Breeze Smoke’s hard-earned goodwill
`
`and reputation. Among the benefits that Defendant has gained from its unlawful and
`
`willful conduct are increased revenues from the sale of its infringing products and
`
`services.
`
`39.
`
`In March 2021, the USPTO examining attorney assigned to examine
`
`Defendant’s U.S. Trademark Application Nos. 90/292,582; 90/292,579; 90/292,558;
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`17
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`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.18 Filed 08/06/21 Page 18 of 31
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`90/292,552; and 90/256,675 for its “BREEZE”-formative marks issued suspension
`
`letters and office actions refusing registration for those applications based, inter alia,
`
`on Breeze Smoke’s prior-pending U.S. Application Nos. 90/012,117 for BREEZE
`
`SMOKE and 90/246,820 for BREEZE PLUS. Relevant excerpts from the office
`
`actions and suspension letters issued against Defendant’s applications are attached
`
`hereto as Exhibit G and incorporated herein by reference.
`
`40.
`
`In March 2021, Defendant filed a Notice of Opposition with the United
`
`States Trademark Trial and Appeal Board against Breeze Smoke’s U.S. Application
`
`No. 90/012,117 for BREEZE SMOKE. A copy of Defendant’s Notice of Opposition
`
`against Breeze Smoke’s BREEZE SMOKE application is attached hereto as Exhibit
`
`H and incorporated herein by reference.
`
`41.
`
`In the Notice of Opposition, Defendant affirmatively states that Breeze
`
`Smoke’s BREEZE SMOKE mark is likely to be confused with Defendant’s
`
`“BREEZE”-formative marks. Specifically, Defendant indicates that the parties’
`
`marks are similar, the parties’ respective goods are confusingly similar, and the
`
`customers and channels of trade for the parties’ respective products and services are
`
`likely to be similar or overlapping. See Exhibit H, at ¶¶ 21-27.
`
`42.
`
`Since Breeze Smoke became aware of Defendant’s trademark filings in
`
`November 2020, the parties have been in settlement discussions in an effort to
`
`resolve this dispute; however, they have not been able to reach resolution.
`
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`43.
`
`To date, Defendant has not ceased selling or offering to sell its
`
`infringing cannabis-related products and services and smokers’ articles under the
`
`BREEZE Marks.
`
`COUNT I
`FEDERAL TRADEMARK INFRINGEMENT
`(15 U.S.C. § 1125(a))
`
`44. Breeze Smoke realleges and incorporates by reference the allegations
`
`contained in the preceding paragraphs as if fully set forth herein.
`
`45. Breeze Smoke owns valid and enforceable rights in the BREEZE Marks
`
`in connection with the goods and services it offers and sells in connection therewith
`
`by virtue of its extensive use, promotion, and advertisement of the marks, and has
`
`possessed such rights at all times material hereto.
`
`46. Breeze Smoke’s use of its BREEZE Marks in connection with tobacco
`
`and other vaping products predates any use by Defendant.
`
`47. Defendant has knowingly and intentionally used and continue to use in
`
`commerce the BREEZE Marks in connection with the cannabis-related goods and
`
`services that Defendant sells and offers to sell.
`
`48. Defendant has been informed and is fully aware of Breeze Smoke’s
`
`extensive prior use of the BREEZE Marks. Defendant knows it is misappropriating
`
`the BREEZE Marks because it knows it is not authorized to sell its cannabis-related
`
`products and services under the BREEZE Marks.
`
`19
`
`
`
`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.20 Filed 08/06/21 Page 20 of 31
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`49. Breeze Smoke has not authorized, licensed, or otherwise condoned or
`
`consented to Defendant’s use of the BREEZE Marks.
`
`50. Defendant’s use of the BREEZE Marks is likely to confuse, mislead,
`
`and/or deceive customers, purchasers, and members of the general public as to the
`
`origin, source, sponsorship, or affiliation of Defendant and Breeze Smoke, and/or
`
`Defendant’s goods and services on the one hand and Breeze Smoke’s goods and
`
`services on the other, and is likely to cause such people to believe in error that
`
`Defendant’s goods have been authorized, sponsored, approved, endorsed, or
`
`licensed by Breeze Smoke or that Defendant is in some way affiliated with Breeze
`
`Smoke.
`
`51. Defendant’s use of the BREEZE Marks is likely to confuse, mislead,
`
`and/or deceive customers, purchasers, and members of the general public as to the
`
`origin, source, sponsorship, or affiliation of Defendant and Breeze Smoke, and/or
`
`Defendant’s goods and services on the one hand and Breeze Smoke’s goods and
`
`services on the other, and is likely to cause such people to believe in error that Breeze
`
`Smoke’s goods have been authorized, sponsored, approved, endorsed, or licensed
`
`by Defendant or that Breeze Smoke is in some way affiliated with Defendant.
`
`52.
`
`Such confusion, deception or mistake has occurred, and is likely to
`
`continue to occur, as a direct result of Defendant’s use of the BREEZE Marks in
`
`20
`
`
`
`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.21 Filed 08/06/21 Page 21 of 31
`
`connection with the display, advertising, promotion, offer of sale and sale of its
`
`infringing cannabis-related products and services.
`
`53. Defendant’s actions constitute trademark infringement in violation of
`
`Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
`
`54. Defendant’s actions described herein were knowing and intentional and
`
`thus render this case exceptional within the meaning of 15 U.S.C. § 1117(a).
`
`55. Defendant’s conduct has occurred in interstate commerce and
`
`substantially impacts interstate commerce in that, upon information and belief,
`
`Defendant sells its cannabis goods and services to consumers resident in both
`
`Michigan and other states.
`
`56. As a direct and proximate result of Defendant’s conduct, Breeze Smoke
`
`has suffered damage to the valuable BREEZE Marks, as well as harm to its valuable
`
`goodwill and reputation.
`
`57. Defendant’s conduct described herein will continue to cause irreparable
`
`damage to Breeze Smoke and confuse the public unless enjoined by this Court.
`
`58. An award of money damages alone cannot fully compensate Breeze
`
`Smoke for its injuries, and Breeze Smoke has no adequate remedy at law.
`
`21
`
`
`
`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.22 Filed 08/06/21 Page 22 of 31
`
`COUNT II
`FEDERAL UNFAIR COMPETITION
`AND FALSE DESIGNATION OF ORIGIN
`(15 U.S.C. § 1125(a))
`
`59. Breeze Smoke realleges and incorporates by reference the allegations
`
`contained in the preceding paragraphs as if fully set forth herein.
`
`60. Breeze Smoke owns valid and enforceable rights in the BREEZE Marks
`
`in connection with the goods and services it offers and sells in connection therewith
`
`by virtue of its extensive use, promotion, and advertisement of the trade dress, and
`
`has possessed such rights at all times material hereto.
`
`61. Breeze Smoke’s use of the BREEZE Marks in connection with tobacco
`
`and other vaping products predates any use by Defendant.
`
`62. Defendant has knowingly and intentionally used and continue to use in
`
`commerce the BREEZE Marks in connection with the cannabis-related products and
`
`services that Defendant advertises, promotes, distributes, and sells.
`
`63. Defendant knowingly and intentionally sells its cannabis-related
`
`products and services under and in connection with the BREEZE Marks with full
`
`knowledge of Breeze Smoke’s extensive prior use of the BREEZE Marks.
`
`64. Breeze Smoke has not authorized, licensed, or otherwise condoned or
`
`consented to Defendant’s use of the BREEZE Marks.
`
`65. Defendant’s use of the BREEZE Marks is likely to confuse, mislead,
`
`and/or deceive customers, purchasers, and members of the general public as to the
`
`22
`
`
`
`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.23 Filed 08/06/21 Page 23 of 31
`
`origin, source, sponsorship, or affiliation of Defendant and Breeze Smoke, and/or
`
`Defendant’s goods and services on the one hand and Breeze Smoke’s goods and
`
`services on the other, and is likely to cause such people to believe in error that
`
`Defendant’s goods or services have been authorized, sponsored, approved, endorsed,
`
`or licensed by Breeze Smoke or that Defendant is in some way affiliated with Breeze
`
`Smoke.
`
`66. Defendant’s use of the BREEZE Marks is likely to confuse, mislead,
`
`and/or deceive customers, purchasers, and members of the general public as to the
`
`origin, source, sponsorship, or affiliation of Defendant and Breeze Smoke, and/or
`
`Defendant’s goods and services on the one hand and Breeze Smoke’s goods and
`
`services on the other, and is likely to cause such people to believe in error that Breeze
`
`Smoke’s goods have been authorized, sponsored, approved, endorsed, or licensed
`
`by Defendant or that Breeze Smoke is in some way affiliated with Defendant.
`
`67.
`
`Such confusion, deception or mistake has occurred, and is likely to
`
`continue to occur, as a direct result of Defendant’s use of the BREEZE Marks in
`
`connection with the display, advertising, promotion, offer of sale and sale of its
`
`infringing cannabis-related products and services.
`
`68. Defendant’s actions constitute unfair competition, false designation of
`
`origin, false or misleading description of fact, and false or misleading representation
`
`of fact in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
`
`23
`
`
`
`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.24 Filed 08/06/21 Page 24 of 31
`
`69. Defendant’s actions described herein were knowing and intentional and
`
`thus render this case exceptional within the meaning of 15 U.S.C. § 1117(a).
`
`70. As a direct and proximate result of Defendant’s conduct, Breeze Smoke
`
`has suffered damage to the valuable BREEZE Marks, as well as harm to its valuable
`
`goodwill and reputation.
`
`71. Defendant’s conduct described herein will continue to cause irreparable
`
`damage to Breeze Smoke and confuse the public unless enjoined by this Court.
`
`72. An award of money damages alone cannot fully compensate Breeze
`
`Smoke for its injuries, and Breeze Smoke has no adequate remedy at law.
`
`COUNT III
`VIOLATIONS OF MICHIGAN CONSUMER PROTECTION ACT
`(M.C.L § 445.901)
`
`73. Breeze Smoke realleges and incorporates by reference the allegations
`
`contained in the preceding paragraphs as if fully set forth herein.
`
`74. Defendant’s acts constitute unfair, unconscionable, or deceptive
`
`methods, acts or practices in conducting trade or commerce in violation of Mich.
`
`Comp. Laws § 445.901 et seq.
`
`75.
`
` Defendant’s unauthorized use of the BREEZE Marks in connection
`
`with its promotion, offer and sale of their counterfeit vaping products is likely to
`
`cause confusion or misunderstanding as to the source, sponsorship, approval or
`
`certification of the goods in violation of Mich. Comp. Laws § 445.903(1)(a).
`
`24
`
`
`
`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.25 Filed 08/06/21 Page 25 of 31
`
`76. Defendant’s unauthorized use of the BREEZE Marks have caused and,
`
`unless enjoined by this Court, will continue to cause substantial injury to the public
`
`and to Breeze Smoke. Based on Defendant’s unlawful activities, Breeze Smoke is
`
`entitled to injunctive relief and to recover damages, and as appropriate, punitive
`
`damages, costs and reasonable attorneys’ fees.
`
`COUNT IV
`COMMON LAW UNFAIR COMPETITION
`
`77. Breeze Smoke realleges and incorporates by reference the allegations
`
`contained in the preceding paragraphs as if fully set forth herein.
`
`78. Defendant was aware of Breeze Smoke’s prior use of the BREEZE
`
`Marks and used the BREEZE Marks in disregard of Breeze Smoke’s rights.
`
`79. Defendant’s actions have resulted in the misappropriation of, and
`
`trading upon, Breeze Smoke’s valuable goodwill and business reputation at Breeze
`
`Smoke’s expense and at no expense to Defendant. The effect of Defendant’s
`
`misappropriation of the goodwill symbolized by the BREEZE Marks is likely to
`
`unjustly enrich Defendant, damage Breeze Smoke, and confuse and/or deceive the
`
`public.
`
`80. Defendant’s actions constitute unfair competition with Breeze Smoke,
`
`which has caused and will continue to cause irreparable injury to Breeze Smoke’s
`
`goodwill and reputation unless enjoined.
`
`25
`
`
`
`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.26 Filed 08/06/21 Page 26 of 31
`
`81. An award of money damages alone cannot fully compensate Breeze
`
`Smoke for its injuries, and Breeze Smoke has no adequate remedy at law.
`
`COUNT V
`UNJUST ENRICHMENT
`82. Breeze Smoke realleges and incorporates by reference the allegations
`
`contained in the preceding paragraphs as if fully set forth herein.
`
`83. By misappropriating Breeze Smoke’s valuable goodwill and reputation
`
`through the improper use of the BREEZE Marks, Defendant has been unjustly
`
`enriched to the material detriment of Breeze Smoke.
`
`84. Defendant is realizing profit and will continue to realize a profit from
`
`its improper use of the BREEZE Marks.
`
`85. Defendant’s actions have directly and proximately caused irreparable
`
`harm to Breeze Smoke and its valuable goodwill and reputation, and will continue
`
`to harm Breeze Smoke unless enjoined.
`
`86. An award of money damages alone cannot fully Breeze Smoke for its
`
`injuries, and Breeze Smoke has no adequate remedy at law.
`
`87. Breeze Smoke is entitled to compensatory damages in the form of
`
`restitution and such other and further relief as the Court deems equitable and just.
`
`26
`
`
`
`Case 3:21-cv-11835-RHC-CI ECF No. 1, PageID.27 Filed 08/06/21 Page 27 of 31
`
`PRAYER FOR RELIEF
`WHEREFORE, Breeze Smoke respectfully requests and prays that the Court:
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`2.
`
`Enter judgment in Breeze Smoke’s favor and against Defendant on all
`counts of the Complaint;
`Determine that Defendant willfully violated the Lanham Act, that
`Breeze Smoke has been damaged by such violations, and that
`Defendant is liable to Breeze Smoke for such violations;
`Determine that Defendant has violated the Michigan Consumer
`Protection Act and committed common law trademark infringement,
`that Breeze Smoke has been damaged by such violations and
`infringement, and that Defendant is liable to Breeze Smoke for such
`violations and infringement;
`Determine that this case is “exceptional” within the meaning of 15
`U.S.C. § 1117(a);
`Under all claims for relief, issue a preliminary and permanent
`injunction enjoining Defendant and any of its officers, employees,
`agents, successors and assigns, and all those in active concer
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